These TERMS AND CONDITIONS OF SALE (the “Terms and Conditions”) apply to all goods or services or any combination thereof, sold, furnished or provided by Joseph O’Hora & Sons, Inc. (“Company”). The goods or services shall mean those goods or services described in any Proposal, Quote, Invoice or other similar document (collectively referred to herein as a “Proposal”) presented by Company to a potential buyer (“Buyer”).
1. Contract Formation
(a) A Proposal shall constitute no more than the Company’s offer to provide the goods and services identified in such Proposal, which goods or services shall be provided in accordance with these Terms and Conditions. A Proposal shall be deemed accepted and a contract formed upon Buyer’s issuance of a purchase order, Buyer’s issuance of a written communication indicating to Company that the Proposal has been accepted, or Buyer’s oral communication accepting the Proposal, which communication is subsequently reduced to a writing. Acceptance of any Company Proposal is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions and any terms and conditions proposed by Buyer in a purchase order or other communication that are different from, conflict with or add to these Terms and Conditions are hereby objected to and rejected by Company, unless otherwise agreed to in writing by Company.
(b) Buyer acknowledges that its acceptance of Company’s Proposal was not entered into in reliance upon any representation made by any employee or agent of Company.
(c) Incorporated by reference into these Terms and Conditions are any additional terms and conditions provided by any equipment manufacturer for goods provided by Company. Company shall provide Buyer with any equipment manufacturer terms and conditions upon Buyer’s written request to Company
2. Orders and Specifications
(a) The quality, quantity, scope and description of any specifications for the goods or services shall be solely as set forth in Company’s Proposal, or Buyer’s purchase order, if and when Company has accepted in writing Buyer’s purchase order.
(b) Company reserves the right at any time to make changes in the specifications of the goods or services where either such changes are required to ensure such goods and services conform with any applicable safety or other requirements or where such changes do not materially affect their quality or performance. Delivery of goods or services conforming to such altered specification or design shall constitute proper performance of the Proposal by Company.
(c) Prior to Company’s delivery or Buyer’s pick up of any order, Buyer may cancel the order by providing Company written notice. Any order cancelled by Buyer that is a non-stock item shall be subject to the Company’s supplier’s restock fee or charges.
3. Prices and Payments
(a) The price of the goods shall be the Company’s quoted price in any Proposal. Unless otherwise stated, all quoted prices are valid for thirty (30) days. Stock items shall be sold at list price, which price may vary based upon market conditions or supplier price changes.
(b) Buyer shall be responsible for the payment of all sales, use, privilege or any other local, state or federal taxes imposed upon or on account of such sale. Buyer may present Company with any exemption certificate for any such taxes and Company may, in its sole discretion, accept or decline to accept such exemption certificate.
(c) Buyer shall be responsible for the payment of all shipping, processing and freight charges.
(d) Unless otherwise provided in the Proposal, all payments are due within thirty (30) days of Company’s invoice for such goods or services. Payment for all stock items is due at the time of delivery or pick-up.
(e) All payment shall be made without deduction, deferment, set-off, lien or counterclaim of any nature.
(f) Any changes, modifications or amendments initiated by Buyer may change the price and delivery schedule for the goods and services. Company shall reasonably communicate any changes in price or delivery schedule to Buyer prior to initiating such change. Failure to communicate any changes in price or delivery schedule arising from Buyer’s requested changes shall not relieve Buyer of its obligations to pay Company any adjusted purchase price.
(g) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees and costs. In addition to all other remedies available under these Terms and Conditions or at law or in equity, Company shall be entitled to suspend the delivery of any goods or services if Buyer fails to pay any amounts when due.
(h) All purchases made via a credit card or other similar payment method in excess of $1,000 shall be subject to a 3.5% credit card processing fee.
4. Delivery/Returns
(a) Unless otherwise specified in the Proposal, delivery is F.O.B. the place of shipment. Buyer assumes all risk of loss following delivery to the first carrier. Notwithstanding delivery and the passing of risk to the goods, title to the goods shall not pass to Buyer until Company has received payment in full for the goods. Date for the delivery or shipment of goods or performance of services are approximate only and are subject to change.
(b) Buyer shall have 5 days from the date of delivery to return any goods. The return of any goods by Buyer shall be subject to a restock fee of 10% for stock items or any fee charged by Company’s supplier for non-stock items.
5. Inspection and Acceptance
(a) Any claim by Buyer relating to either non-delivery of or damage to all or part of the goods, or that the goods are not in accordance with the Proposal, must be made to Company in writing within forty-eight (48) hours of Buyer’s receipt or deemed receipt of the goods or, in the case of non-delivery of all of the goods, within forty-eight (48) hours of the latest proposed date of delivery.
(b) Any claim by Buyer relating to Company’s performance of services must be made to Company in writing within seven (7) days of Company’s completion of the services.
(c) Failure to make a claim to Company within the stated time frame will constitute acceptance by Buyer of the goods and/or services.
(d) Any claim by Buyer must incorporate all relevant details and information and Buyer must provide Company access to the non-performing goods or completed services.
(e) In the event of a valid claim for non-conforming goods or services, Company’s liability shall, at its option, be limited to the repair or replacement of goods at no cost to buyer or repair of the services.
6. Warranty
(a) Company hereby assigns to Buyer any rights it may have under any warranty extended by a third party concerning the goods or any part thereof. Goods manufactured by others and resold by Company carry the original warranty but do not carry any additional warranty by Company unless specifically stated in the Proposal.
(b) Company warrants that all services furnished will be performed in a good and workman-like manner. The term of this warranty is 30 days from date of the completion of the services. All warranty claims for services shall be made to Company in writing within the warranty period.
(c) Company shall, at its expense, repair or re-perform any non-conforming services. Company will not reimburse or refund any payments to Buyer for its repair or performance of any non-conforming services. These remedies are the exclusive remedies for a breach of warranty.
(d) The warranties provided herein do not apply to:
(i) damage caused by accident or negligence of Buyer, normal wear and tear, erosion, corrosion or by disaster, such as fire, flood, wind or lightening;
(ii) damage caused by the failure to follow all installation and operating instructions or manuals or to provide
maintenance;
(iii) damage caused by improper installation of attachments, repairs or modifications; or
(iv) damage caused by any other misuse of the goods.
(e) EXCEPT AS PROVIDED HEREIN, COMPANY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability
COMPANY SHALL NOT BE LIABLE FOR AND BUYER HEREBY WAIVES AND RELEASES ANY CLAIMS AGAINST COMPANY FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST SALES, REVENUES, PROFIT, OR DATA, HOWEVER ARISING OUT OF OR IN CONJUNCTION WITH THE GOODS OR SERVICES. COMPANY’S TOTAL CUMULATIVE LIABILITY, IF ANY, FOR DAMAGES OF ANY KIND RELATING TO THE GOODS SUPPLIED OR SERVICES PERFORMED OR OTHER BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF (i) THE PURCHASE PRICE PAID TO COMPANY FOR SUCH GOODS OR SERVICES, OR (ii) FIVE THOUSAND DOLLARS ($5,000).
8. Indemnification
Buyer shall indemnify, defend and hold harmless Company, its shareholders, directors, officers, employees, agents and representatives from and against any and all claims, demands, causes of action, losses, costs, damages and liabilities and expenses (including attorney’s fees and costs) arising out of or resulting from negligence, willful act or omission, or breach of these Terms and Conditions of or by Buyer or its owners, directors, officers, employees, agents or representatives.
9. Force Majeure
Company shall not be liable to Buyer or be deemed to be in breach of these Terms and Conditions or any Proposal by reason of any delay in performing or any failure to perform any obligation if the delay results from any cause beyond Company’s reasonable control.
10. Company’s Remedies.
Company has the right to recover all amounts owed or incurred as a result of the goods and services it has provided. Buyer specifically agrees that in the event Buyer’s credit worthiness becomes unsatisfactory, in Company’s sole determination, or upon Buyer’s default prior to receipt of payment in full, Company shall have the following rights, in addition to any and all other rights that Company may possess under applicable law: (a) at any time, to withhold shipment or suspend providing services in whole or in part; (b) to require cash payments or satisfactory security for future delivers of goods or the provision of services; (c) to recall goods in transit and retake the same; (d) to peaceably enter upon Buyer’s premises to repossess the goods, without the necessity of any legal notices or process; and (e) to terminate any Proposal. Buyer acknowledges and agrees that all goods withheld, recalled, retaken or repossessed shall become the absolute and sole property of Company subject to the equitable set-off rights for any partial payment made to Company for such goods.
11. Free Market
The Proposal is provided in a free-market basis. Should any work in the Proposal require prevailing wage or other certification, it is Buyer’s responsibility to notify Company of such requirement prior to accepting the Proposal. Any “prevailing wage” type requirement will be treated as an addition/extra to the price provided in the Proposal.
12. Insurance
The parties shall, each at its own expense, maintain and carry insurance in full force and effect, which includes, but is not limited to, commercial general liability (including product liability) in amounts reasonable and sufficient for such party’s business activities and industry with financially sound and reputable insurers.
13. Choice of Law
Disputes. Any Proposal, including these Terms and Conditions, shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its choice of law rules. The parties hereto agree that any dispute arising from any Proposal shall be initiated and conducted exclusively in the state or federal courts located in Lackawanna County, Pennsylvania and each party hereto hereby unconditionally and irrevocably consents to the exclusive jurisdiction and venue of such courts.
14. Assignment
Any Proposal shall be binding upon and inure to the benefit of Company and Buyer and their respective successors and permitted assigns. Buyer may not assign or otherwise transfer any Proposal, in whole or in part, without the prior written consent of Company, which consent shall not be unreasonably withheld, delayed or conditioned.
15. No Third-Party Beneficiaries
Company and Buyer agree that the Proposal is not intended to create any third-party beneficiaries, and that no provision of any Proposal is intended to benefit any person or entity other than Company and Buyer, nor shall any such provision be enforceable by any other person or entity.
16. Waiver
Neither the failure nor any delay by Company in exercising any right, power, or privilege under any Proposal or these Terms and Conditions will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
17. Severability
If any provision of any Proposal or these Terms and Conditions is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of any Proposal or these Terms and Conditions will remain in full force and effect. Any provision of any Proposal or these Terms and Conditions held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
18. Survivability
The articles or sections of the Terms and Conditions, warranties, indemnity, insurance, and all remedies at law and in equity including those expressly stated herein, shall survive the expiration or any termination of any Proposal. A termination of any Proposal shall not relieve Company or Buyer from its obligations that had arisen prior to the termination.
19. Independent Contractor
Nothing contained herein shall be construed to imply an agency, partnership, or joint venture relationship between Company and Buyer and their relationship shall only be that of independent contractors. Neither party hereto shall have any right or authority to assume or create any obligations or responsibilities or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
20. Entire Agreement
Any Proposal accepted by Buyer supersedes all prior agreements between Company and Buyer with respect to its subject matter and constitutes a complete and exclusive statement of the terms of such Proposal with respect to its subject matter.