PF America Terms & Conditions
1. TERMS OF ACCEPTANCE. Acceptance by PF America Inc. (“Seller”) of Buyer’s order is expressly conditioned upon Buyer’s agreement to the terms.
contained herein. Buyer’s assent to these terms shall be conclusively presumed from any of the following: (a) Buyer’s failure to notify Seller within five (5) days of receipt of these terms of any objections to the terms herein; (b) By accepting the goods delivered hereunder (“Goods”); or (c) returning an initialed copy of this form to the Seller. These terms constitute the final agreement between Buyer and Seller concerning the subject matter hereof and supersede any other oral or written agreements. Seller expressly objects to any additional, different or conflicting terms which may be contained in any purchase order or other documentation or communication from Buyer, and Buyer expressly agrees that such terms shall be of no force or effect. No
change or modifications to the terms and conditions stated herein shall be made without the Seller’s written consent, signed by an authorized representative of the Seller.
2. TERMS OF PRICING AND PAYMENT. All prices are based on Seller’s price in effect at the time of shipment. Buyer shall pay Seller all invoiced amounts within 30 days from the date of Seller’s invoice. Buyer shall pay a monthly late payment charge computed at the rate of 1.5%, or the maximum interest rate permitted by applicable law, whichever is less, on any past-due amount for each calendar month (or fraction thereof) that the payment is overdue and all costs of Seller’s collection efforts including reasonable attorney’s fees. Accounts totaling ten thousand dollars ($10,000) or more are subject to approval by COFACE USA CREDIT INSURANCE. Invoices for new accounts must be paid in full in advance of shipment, or by credit card. Payments due pursuant to this agreement shall be deemed to have been made when funds are actually collected and received by Seller or credited to Seller’s account, and not upon the delivery to Seller of a document or negotiable instrument therefor. Seller shall be under no obligation to make any shipment of Goods when Buyer is in default hereunder or under any other sales agreement between Seller and Buyer.
3. DELIVERY; RISK OF LOSS; TITLE PASSAGE. Shipments made hereunder may be made in installments or in a single lot. All Goods sold to Buyer shall be delivered in accordance with the shipping terms set forth on the Seller’s acknowledgement and invoice. Unless otherwise specified, an over-shipment or under-shipment of 10% of the quantity ordered shall be deemed to be complete fulfillment of Buyer’s order; provided, however, that the price of any such Goods shall be based on the quantity of Goods delivered and not on the quantity ordered. Specific shipping dates, when shown, are deemed to be approximate. Except as otherwise stated on Seller’s invoice, Buyer shall pay all freight, transportation, demurrage and insurance charges with respect to the Goods. Seller’s delivery of the Goods to a common carrier constitutes delivery to the Buyer. The risk of loss or damage to or destruction of the Goods shall be borne by Buyer at all times after delivery by the Seller to a common carrier or shipment. Title to the Goods shall remain with Seller until payment for the Goods has been made in full and Buyer has performed all of its obligations hereunder. Buyer shall not, by operation of law or otherwise, sell, assign, transfer, pledge, mortgage, hypothecate, encumber or grant a security interest in the Goods until title to the Goods has been passed to Buyer.
4. RETURNED GOODS POLICY; CANCELLATION. All returns require written authorization. Return requests occurring after 45 days of initial sale will not be accepted. Goods must be returned to Seller’s warehouse, freight prepaid. Goods returned must be unused and in original packaging. All returned Goods are subject to a restocking charge. All Goods will be subject to inspection for any damages. Credit for returned Goods will be issued upon receipt completion of inspection. No purchase order may be canceled or altered without the express written consent of Seller. In the event of such an approved cancellation, Buyer shall pay Seller a sum equal to the total out-of-pocket expenses incurred in connection with the purchase order, plus a reasonable sum for overhead expenses and lost profits, as determined by Seller.
5. WARRANTY. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS OR THE USE OR
PERFORMANCE OF THE GOODS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES OF MERCHANTABILITY, EXCEPT FOR THOSE WARRANTIES EXPRESSED IN WRITING BY BODEN ENTERPRISES INC OR
POLYFLOR, LTD.
PERFORMANCE OF THE GOODS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES OF MERCHANTABILITY, EXCEPT FOR THOSE WARRANTIES EXPRESSED IN WRITING BY BODEN ENTERPRISES INC OR
POLYFLOR, LTD.
6. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, DIRECT OR SPECIAL DAMAGES IN RESPECT OF THE GOODS, OR THE USE OR PERFORMANCE OR FAILURE THEREOF,
WHETHER BASED ON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. Buyer’s sole and exclusive
remedy for any loss, damage, expense or claim directly or indirectly arising out of or relating to the Goods hereunder shall be, at the discretion of Seller, (a) repair or replacement of the Goods, (b) refund of the purchase price for the Goods, or (c) issue of a credit with the Seller in the amount of the purchase price. Notwithstanding any contrary provision, the aggregate cumulative total liability for which Seller is obligated to pay Buyer hereunder, whether for breach of warranty or contract, indemnification, tort (including negligence), or otherwise, shall not exceed the payments made to Seller for the Goods purchased under this agreement which gave rise to such liability. It is further agreed and understood that no liability shall result from delay in
performance or non-performance of this agreement by Seller due to any cause beyond Seller’s reasonable control. In the event of a stoppage or delay resulting from any such cause, Seller may fill parts of the order as it is capable of filling in the normal course of business and in the event, Buyer places any other part of the order elsewhere, Seller shall be entitled to fill the unplaced portion.
INCIDENTAL, DIRECT OR SPECIAL DAMAGES IN RESPECT OF THE GOODS, OR THE USE OR PERFORMANCE OR FAILURE THEREOF,
WHETHER BASED ON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. Buyer’s sole and exclusive
remedy for any loss, damage, expense or claim directly or indirectly arising out of or relating to the Goods hereunder shall be, at the discretion of Seller, (a) repair or replacement of the Goods, (b) refund of the purchase price for the Goods, or (c) issue of a credit with the Seller in the amount of the purchase price. Notwithstanding any contrary provision, the aggregate cumulative total liability for which Seller is obligated to pay Buyer hereunder, whether for breach of warranty or contract, indemnification, tort (including negligence), or otherwise, shall not exceed the payments made to Seller for the Goods purchased under this agreement which gave rise to such liability. It is further agreed and understood that no liability shall result from delay in
performance or non-performance of this agreement by Seller due to any cause beyond Seller’s reasonable control. In the event of a stoppage or delay resulting from any such cause, Seller may fill parts of the order as it is capable of filling in the normal course of business and in the event, Buyer places any other part of the order elsewhere, Seller shall be entitled to fill the unplaced portion.
7. CLAIMS. The buyer shall inspect and test the Goods promptly after receipt and before use or installation of the Goods. Any claim for reason of defective goods, short count or for any other cause, shall be deemed to be waived by Buyer unless made in writing within thirty (30) days from the date of shipment of the Goods to which such claim relates. All Goods claimed as nonconforming for whatever reason shall be properly protected and held by Buyer until settlement is made.
8. NO LIABILITY FOR LABOR OR INSTALLATION DEFECTS. Buyer expressly waives any rights or claims against Seller relating in any way to installation of the Goods. Upon acceptance of the Goods, the Buyer irrevocably waives any and all claims for defects in the Goods including but not limited to, any claims related to installation or performance of the Goods after installation. The buyer further expressly agrees that it shall not seek a charge back against any credit card payment for alleged defects or claims relating in any way to the installation of the Goods.
9. INDEMNIFICATION. Buyer will indemnify and hold harmless Seller, its subsidiaries, affiliates, licensees and assigns, and their respective officers, directors, agents, representatives, subcontractors and employees (each, a “Seller Indemnified Party”), from all claims, liabilities, damages or expenses, including reasonable attorney’s fees, incurred by or asserted against a Seller Indemnified Party arising out of or resulting from the sale of Goods hereunder, provided that any such claims, liabilities, damages or expenses are caused in whole or in part by the negligent or wrongful acts or omissions of Buyer, its agents, employees, successors or assigns, or anyone else for whose acts or omissions Buyer may be found liable hereunder.
10. GOVERNING LAW; VENUE. This agreement and the rights of the parties hereunder shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania (exclusive of its conflict and choice of laws principles). The parties specifically waive the application of the United Nations Convention on the International Sale of Goods as to this agreement, if applicable. Any controversy or claim arising under or relating to this agreement, or the breach thereof shall be heard exclusively in any court, federal or state, within the Commonwealth of Pennsylvania having subject matter jurisdiction thereof. Each party consents to personal jurisdiction in any action brought in any such court. No action or suit to enforce
Buyer’s rights or remedies arising out of or relating to the sale of Goods hereunder shall be commenced later than one (1) year from the occurrence of the event giving rise to the alleged claim or controversy.
Buyer’s rights or remedies arising out of or relating to the sale of Goods hereunder shall be commenced later than one (1) year from the occurrence of the event giving rise to the alleged claim or controversy.
265 PLANE TREE DRIVE | 2ND FLOOR | LANCASTER PA 17554
