Terms and Conditions
Pilko Technology Associates, LLC
STANDARD TERMS AND CONDITIONS
Rev. April 3, 2009
The terms and conditions set forth herein shall apply to any Buyer’s Purchase Order (the “Order”) and to any contract that may be entered into in connection with the Order (the “Contract”) when placed directly with Pilko Technology Associates, LLC (the “Company”). Acceptance of the Order is expressly made conditional upon assent to the terms and conditions set forth herein, which comprise all of the terms and conditions between Company and the Buyer respecting the Order, except to the extent that any terms or conditions shall have been changed or modified as set forth in the Contract, if any. The Company must specifically agree to any other changes or modifications in the terms and conditions contained herein in writing.
In cases where the Company is functioning as an agent or representative for a third party, and Buyer places their Order directly with said third party, such third party’s Terms and Conditions shall prevail in the relationship between Buyer and said party.
Except as otherwise provide herein, payment terms are cash net 15 days from the date of the invoice. Amounts past due are subject to a service charge of the lesser of 1 ½ % per month (or fraction thereof) or maximum contract rate permitted by law. If the Company deems that by reason of the financial condition of the Buyer or otherwise the continuance or production or shipment on the terms specified herein is not justified, the Company may require full or partial payment in advance prior to the entry of the Order, manufacture, shipment or delivery. For larger orders the Company may require a down payment and progress payments. Legal fees associated with the collection of delinquent accounts will be the responsibility of the Buyer.
Shipping dates given by the Company are approximate and are based on prompt receipt of all necessary information regarding the order. The Company will use its reasonable best efforts to meet the scheduled shipping date, but cannot be held responsible for its failure to do so for causes beyond its reasonable control and in no event shall it be liable for any loss or damage from its failure to deliver within the time approximated herein.
RISK OF LOSS
Notwithstanding title to or ownership of the product, risk of loss shall pass to the Buyer as soon as the product has been accepted by a common carrier.
METHOD OF SHIPMENT
Unless otherwise specified in the Contract or the Order, all shipments made shall be made F.O.B. Broomall, PA. In the event that any other method of shipment shall be specified, the price shall be adjusted to reflect any increase or decrease in the price to the extent that the cost of shipment is or will be included therein.
The Buyer may with the written consent of the Company make changes in the product covered by an Order. In the event of any such change the Buyer shall pay to the Company the reasonable costs and other expenses incurred by the Company for such changes for all work rendered to effect such change, including for all work rendered to effect
such change, plus the Company’s usual profit thereon.
The Buyer may cancel the Order only upon the Company’s written consent and upon payment to the Company of cancellation charges which shall take into account, among other things, anticipated profits, expense incurred and commitments already made by the Company.
REGULATORY LAWS AND/OR STANDARDS
The Company makes no promise or representation that its product will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the Order or Contract. The Company’s prices do not include the cost of any related inspections, permits and inspection fees.
The company shall have a lien on and security interest in the product, notwithstanding delivery or possession, until cash in full pays the entire price. The Buyer agrees to do all acts necessary to perfect and maintain such lien and security interest in favor of the Company. The Buyer must maintain, at its own expense, insurance in the amount equal to the invoice price against loss or damage of any kind to product by this transaction and agrees to furnish the Company with satisfactory proof of this coverage.
Buyer shall be responsible for the payment or disposition of any taxes imposed as a result of the transaction, whether such taxes are imposed or levied at the time of the transaction or at any subsequent time. “Taxes” shall include any penalty or interest on such tax obligation. Company agrees to cooperate reasonably with the Buyer in any attempt by Buyer to have any such taxes released or reduced. The prices do not include any applicable sales, use, excise or similar taxes. The Buyer assumes responsibility for all such taxes.
RETURN OF GOODS
Written permission from the company must be obtained before returning any product. Goods returned for any reason other than a valid warranty claim will be subject to a restocking charge to compensate the Company for its costs incurred with respect to such return.
The Buyer acknowledges that the Company has no control over, and is not responsible for, the manner in which the products will be used or otherwise dealt with by the Buyer. The Buyer therefore agrees to assume all responsibility for any and all sums which the Company and/or the Buyer becomes obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the installation, maintenance, use or operation of the product, or the failure of the product to comply with any safety laws or regulations. The Buyer shall indemnify and hold the Company harmless from and against any and all actions, claims or demands arising out of or in any way connected with the installation, maintenance, use or operation of the products or the design, construction or composition of any item or items made or handled by the products supplied hereunder, including any such actions, claims and demands base in whole or in part on the default or negligence of the Company.
Any and all models, drawings, sketches, plans and other information supplied by one party to the other shall remain the property of party who shall have supplied it. The other party may not use any material or information except with respect to the products and/or services dealt with herein. Any product or service sold hereunder shall not constitute a license to use any of the proprietary rights of the Company.
All product sold by the Company except as provided below is warranted by the Company for the period of twelve months, which period will commence upon date of shipment or invoicing whichever occurs first, to be free from any defects in material and workmanship disclosed under normal use and service, provided such goods have been properly installed, maintained and operated in accordance with the Company’s specifications for such product. If the Buyer, within such period, notifies the Company in writing of any claimed defect in any product delivered by the Company and such product is found by the Company after appropriate test and inspection not to be in conformity with this warranty, the Company will at its option and expense either repair the same or provide a replacement for installation at the Buyer’s expense. Such replacement or repair shall be the sole and exclusive remedy available to the Buyer. With respect to services performed, if any, the Company’s sole liability for any defect therein shall be to perform again at the Company’s expense, such services, which shall be the sole and exclusive remedy available to the Buyer.
EXCEPT AS AFORESAID, THE COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER INSTALLATION OR USE OF ANY OF THE PRODUCT REFERRED TO HEREIN OR ANY WARRANTY AS TO THE ABSENCE OF LATENT DEFECTS, OR AS TO THE ABSENCE OF ANYINFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT, AND LIABILITY FOR ANY WARRANTY MADE HEREIN SHALL IN NO EVENT EXCEED THE COST OF CORRECTING DEFECTS IN THE PRODUCT SOLD OR, AT THE COMPANY’S OPTION, OF REPLACING SAME WITH NONDEFECTIVE PRODUCT. THE COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, CONTINGENT OR INCIDENTAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, BACK CHARGES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FOREGOING WARRANY DOES NOT COVER, AND NO WARRANTY IS MADE WITH RESPECT TO:
- Failure or defect not reported within the warranty period above specified.
- Failures or damage due to negligence (other than that of the Company), accident, abuse, improper installation (other than installation made by the Company), improper operation or abnormal conditions of temperature, moisture, dirt or corrosion.
- Product, which has been tampered with, repaired or altered by anyone other than an authorized representative of the Company.
- Product damaged in shipment or otherwise without the fault of the Company.
- Expense incurred by the Buyer in an attempt to correct or repair any alleged defect, unless approved by the Company in writing.
- Components and other materials purchased by the Company from other manufactures and resold to Buyer either in the form acquired by the Company or in assembly with other components and materials. As an accommodation to the Buyer, the Company will, upon request of the Buyer, assign to the Buyer any rights it may have arising out of warranties given by any manufacturer of such components, materials or standard equipment purchased by the Company and so resold to the Buyer.
- Any product manufactured by the Company in response to the Buyer specifications therefore which go beyond the existing state of the art. The Company assumes no liability for any failure of such product so to meet such specifications.
- Failure or defects attributable to design or specifications requested by the Buyer.
- Specifications and dimensions shown in this quotation, proposal or order confirmation which are approximate and are subject to minor devaluations or tolerance in accordance with industry standard.
- Such components, which by their nature in normal usage of the product in accordance with the Company’s specifications therefore, have a life expectancy shorter than the warranty period, and are referred to as “consumables” which include thermocouples, heating elements, gloves, seals, o-rings, sight glasses, and pump fluids.
- The Company’s scope of supply includes only the products sold by the Company and described specifically in the offer to the customer. Any additional safety procedures and/or equipment that may be required or recommended by federal, state, or local codes, your insurance policies or for your intended use is not included within this warranty. You are responsible for providing any and all such additional procedures and equipment as necessary.
Any representation or warranty beyond that expressly contained herein, whether made prior to or subsequent to the date hereof, are not authorized by the Company and shall have no force or effect and shall not be binding upon the Company.
ATTORNEY FEES AND EXPENSES
In addition, all other remedies provided by the Pennsylvania Uniform Commercial Code or otherwise, the party aggrieved by any breach where settlement is made through negotiation, or the prevailing party in any litigation resulting from the breach, will be entitled to reasonable attorney’s fees plus any shipping costs incidental to repairing the immediate incident of the breach and court expenses.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE OF PENNSYLVANIA.
EXCLUSION OF U.N. CONVENTION ON INTERNATIONAL SALES
Unless otherwise agreed to by the Company and the Buyer in writing, there is excluded from the order and the Contract (including any amendments or changes thereto) the application of the United Nations Convention on Contracts for the International Sale of Goods.
If any provision in the foregoing text is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the foregoing text will remain in full force and effect. Any provision of the foregoing text held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach
thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this
effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt
to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period
of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be
finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions
of its Commercial Arbitration Rules.