The sale of any products, equipment and materials under this Agreement (collectively “the Products”) is conditioned upon and expressly made subject to the terms and conditions contained herein. Any additional or different terms or conditions proposed by the Customer are objected to and will not be binding upon Pittsburgh Wire & Cable, Inc. (“Seller”) unless specifically assented to in writing by Seller’s authorized representative. Acceptance by Seller of Customer’s purchase order does not constitute an acceptance of any terms or conditions proposed by Customer. Any order for or any statement or intent to proceed hereunder shall constitute assent to Seller’s terms and conditions as contained herein.
1. Payment. Terms are net cash on or prior to delivery except where satisfactory open account credit is established, in which case the terms are net thirty (30) days from the date of invoice. In the event that satisfactory open account credit is established as provided above, and payment is not made within a thirty (30) day period following the date of invoice, the Customer shall be charged a late payment fee of one and a half (1.5%) percent on the unpaid balance per month. In addition to the contract price for the Products, the Customer shall pay for all sales, use and personal property taxes or similar governmental taxes or fees arising out
of this Agreement.
2. Delivery. The Products will be shipped to the Customer F.O.B. Point of Origin. Delivery shall be made within a reasonable time based on the Seller’s available inventory and other pertinent factors. Unless otherwise directed in writing by Customer, Seller shall arrange for shipment and invoice the Customer for any shipping and handling (including insurance) charges. The customer will also be responsible for storage, shipping and handling charges incurred, if any. The selection by the Seller of the carrier shall not make the carrier the agent of the Seller, nor shall the Seller assume any liability regarding shipment, including risk of loss or damage to the Products.
3. Security Interest. The Customer hereby grants the Seller a purchase money security interest in all Products being sold hereunder until full payment of the contract price and all related charges is made. The Customer agrees to execute upon request any documents needed to perfect or protect the Seller’s security interest therein. In connection therewith, the Products are and shall remain personal property even though installed on or attached to real property.
4. Warranties. Upon written request of the Customer, Seller shall assign any warranties of the manufacturer or producer of the Products purchased hereunder which may be assigned to the Customer in accordance with the terms and conditions imposed by the manufacturer and/or producer involved.
5. DISCLAIMER OF WARRANTIES. UNLESS SPECIFIED ON THE FRONT OF THIS SALES ORDER, THE WARRANTY SET FORTH IN SECTION 5A, BELOW, APPLIES:
5A. EXCEPT AS EXPRESSLY STATED IN SECTION 4 ABOVE, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF PRODUCTS OR SERVICES FURNISHED HEREUNDER OR IN CONNECTION HEREWITH INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY SELLER, ITS EMPLOYEES OR OTHERWISE, SHALL BE
DEEMED TO BE A WARRANTY BY THE SELLER FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF THE SELLER WHATSOEVER.
IN NO EVENT WILL THE TOTAL LIABILITY OF THE SELLER HEREUNDER, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER FOR THE PARTICULAR PRODUCTS WHICH ARE THE SUBJECT OF A SPECIFIC CLAIM. SELLER’S ONLY OBLIGATION SHALL BE TO REPLACE SUCH QUANTITY OF THE PRODUCT AS IS PROVEN DEFECTIVE.
IN NO EVENT WILL THE SELLER BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY SUBSEQUENT PURCHASER OR USER, FOR ANY INJURIES OR DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS EVEN IF SELLER HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES.
5B. APPLICABLE ONLY TO PRODUCTS MANUFACTURED BY SELLER. PITTSBURGH WIRE AND CABLE (“SELLER”) DOES NOT EXPRESSLY OR IMPLIEDLY WARRANT THE PRODUCTS SOLD UNDER THIS INVOICE AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER HAS NOT AUTHORIZED ANY PERSON TO OFFER AN EXPRESS OR IMPLIED WARRANTY ON ITS BEHALF, INCLUDING BUT NOT LIMITED TO AN IMPLIED WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER ASSUMES NO LIABILITY OR OBLIGATIONS ON
ACCOUNT OF REPRESENTATIONS MADE BY ANY OTHER PERSON. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF USE, DAMAGE TO ANY EQUIPMENT OR PROPERTY, INCONVENIENCE OR ANNOYANCE, OR ANY PERSONAL INJURIES ARSING FROM THE SALE OF ANY PRODUCT UNDER THIS INVOICE.
6. Default. Customer shall be in default under this Agreement when (a) Customer fails to pay Seller any amount when due; (b) prior to the Customer’s payment in full of the contract price hereunder, Customer attempts to sell, sublease, assign or sublicense the Products except under a bona fide financing arrangement wherein the funds are paid to Seller; (c) any distress, execution, or attachment is levied on the Products or such action is attempted; (d) Customer becomes insolvent, the Customer hereby representing and warranting that it/he is financially solvent at the time this Agreement is entered into and is fully capable of satisfying its financial
commitments to the Seller in connection herewith; (e) upon the initiation of bankruptcy or receivership proceedings against the Customer; (f ) upon execution by the Customer of any deed of trust or assignment for the benefit of creditors or any other transfer or assignment of similar nature; or (g) upon Customer’s breach of any of the terms and conditions hereof.
Upon any such default, any unpaid amounts hereunder shall, at the Seller’s option, become immediately due and payable. In addition to and not in derogation of any other rights or remedies which may be available to the Seller as a result of such default, the Seller may, without breach of peace, enter any premises and take possession of the Products without posting security as well as having all the rights and remedies of a secured party under the Uniform Commercial Code of Pennsylvania and any other applicable laws. Upon such default, Customer shall be liable for all reasonable expenses and costs incurred by Seller in connection with the enforcement of any of its remedies hereunder, including but not limited to all reasonable attorney’s fees and all costs of litigation.
7. Modifications. Any modifications that are requested by the Customer after the execution of this Agreement shall be subject to the price as is specified in the Seller’s current price list. The shipment and delivery thereof, as the case may be, shall be at such time as Seller may deem practical. Payment of the price associated with the modification to any order shall be in accordance with the payment terms of this Agreement as is set forth in Section 1. To the extent any modification is sought after the Products are ordered, Customer shall be charged a restocking fee, where applicable. In the event of a special order, Customer shall not be entitled
to cancel or modify the order once placed and Customer shall not be entitled to return any portion thereof.
8. Returns. Returned merchandise must be full reels, undamaged and in the original, unopened packaging. Credit will be given for returned merchandise meeting these specifications. No merchandise may be returned accept upon the written approval of Seller. No merchandise may be returned after sixty (60) days of the date of shipment. Seller does not issue any cash refunds. All returns and other proper claims for credit shall be applied toward future purchases only. All credits expire one (1) year from the date of issue.
9. Uncontrollable Circumstances. Seller shall not be responsible for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labor disputes, governmental laws, regulations or orders, acts or in actions by Customer, utility companies, or any similar or dissimilar causes beyond the reasonable control of the Seller. During the occurrence of any such event, the time for performance of any other obligations of the Seller hereunder shall be extended to such extent as may be necessary to enable Seller to perform after the cause of delay has been removed. It is understood that all shipment and delivery dates are approximate and the Seller, under no
circumstances, shall be liable for damages, direct, indirect, special, consequential or otherwise resulting from delays in shipment or delivery.
10. Assignment. Customer may not assign this Agreement in whole or in part without obtaining the prior written consent of Seller.
11. General. This Agreement is governed by the laws of the Commonwealth of Pennsylvania. The provisions of this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof, superseded all prior oral or written communications, agreements and understandings, and may not be amended, altered or modified, or waived in whole or in part, except by a writing signed by both parties hereto. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions which may appear on any order, acknowledgement or other instrument or documents submitted by the Customer. Any action to enforce or interpret this Agreement shall be commenced and maintained in Allegheny County, Pennsylvania.
12. Fair Labor: With respect to the production of the Products covered under this Agreement, Seller has complied with the requirements of the Fair Labor Standard Act of 1938, as amended.