Purchasing Terms and Conditions: These terms apply to anyone providing products and/or services to Pierce Promotions and Event Management LLC.
- Acceptance/Entire Agreement.This writing is an offer by Pierce Promotions and Event Management LLC (“Buyer”) to buy the goods and/or services set forth in the Purchase Order (“Products”) from the seller to which the Purchase Order (“PO”) is addressed (“Seller”), subject to the terms and conditions set forth herein (collectively referred to as the “Agreement”). This is not an acceptance of any offer by Seller to sell. Buyer hereby objects to any additional or different terms contained on any of Seller’s quotation, acknowledgment, invoice or other forms, correspondence, or in any other communication from Seller. This offer expires 90 days from the date the PO is issued or upon prior written notification thereof to Seller, unless goods conforming hereto are subsequently shipped, or services are subsequently performed, by Seller and accepted by Buyer. The terms of this offer, when accepted by Seller explicitly, by fulfillment of the order, shipment of conforming goods or otherwise, shall constitute the entire agreement between the parties on the subject hereof, superseding all prior oral and written communications and negotiations. The Agreement may not be modified except in a writing signed by duly authorized representatives of Buyer and Seller. In the event of a conflict between the terms of this Agreement and another agreement signed by duly authorized representatives of Buyer and Seller, the terms of the other agreement shall control.
- Prices.All prices are firm for the term of this Agreement, and no additional charges will be allowed unless specifically provided for on the PO. All time periods for determining payment due dates and availability of discounts commence with Buyer’s receipt of the Products or receipt of an invoice, whichever is later.
(a) Timing of Invoices: The Seller may invoice Buyer at any time; provided however that any such invoice must be: (i) issued after delivery of the Products; and (ii) received by Buyer at the address provided in paragraph (c) below within sixty (60) days of the date Seller receives the Products.
(b) Content of Invoice: Each invoice must contain: (i) the purchase order number provided to Seller by Buyer for the Purace of the Products; (ii) an accurate and itemized list of charges.
(c) Delivery of Invoices: All invoices should be sent via United States Postal Service or overnight delivery to the ship to address listed on the PO, ATTENTION: Accounts Payable.
(d) Disclosed Agent: Buyer will only be liable for the cost of the goods and services purchased and other obligations to you to the extent we have been paid by our client for any amount payable to you. For amounts not paid to us by our client, you will seek payment solely from our client (and not from Buyer). Any terms in your invoices, documents or rate cards to the contrary, and any modifications you make to this form, are of no force or effect.
(e) Supporting Documentation: For a period extending three (3) years after Buyer has received all Products, the Seller will maintain records supporting all charges billed to Buyer. Seller will promptly comply with any request from Buyer requesting support for any charge. Buyer shall not be obligated to pay any charge while a reasonable request for support of such charge is pending. If Seller fails to supply Buyer with records supporting any charge within sixty (60) days of Buyer’s request for supporting documentation, Seller will be deemed to have waived its right to payment of such charge and, if such charge has already been paid by Buyer, shall promptly issue a refund in the amount of such charge to Buyer.
(f) Right to Set Off: Buyer may set off against the cost set forth in the PO any sums owed to Buyer by the Seller.
- Delivery; Anticipation. Seller shall deliver the Products within the time, which is of the essence, in the quantities and at the prices specified on the PO or in any document related to the performance of the Products, in accordance with Buyer’s specifications (as well as the sample approved by Buyer, if any). If Seller fails to comply with such requirements, Buyer may, in addition to any other rights or remedies, cancel this order and be relieved of all liability for any undelivered portion. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Buyer’s delivery schedule. Products received in advance of Buyer’s delivery schedule may, at Buyer’s option, be returned at Seller’s expense or be accepted and payment withheld until the scheduled delivery date. Failure by Buyer to insist upon strict performance shall not constitute a waiver of any of the provisions of this order or waiver of any default.
- Packing and Shipping.All Products shall be suitably packed, marked conspicuously with Buyer’s purchase order number, and shipped in accordance with shipping instructions specified herein and otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Buyer shall have the right to route all shipments. No charge shall be made to Buyer for packaging, boxing or cartage unless separately itemized on the PO. Seller shall be liable to Buyer for any loss or damage resulting from Seller’s failure to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, non-compliance with other shipping instructions or improper description of the shipment in shipping documents shall be Seller’s responsibility. Immediately upon shipment Seller is to notify Buyer, advising of complete shipping and routing information.
- Acceptance and Inspection.Seller may reject any Products delivered which are not in accordance with the Agreement. Seller shall allow Buyer access to Seller’s plant at all reasonable times to inspect any Products (and work-in-process relating thereto). Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties at Seller’s plant. Notwithstanding prior inspections, all Products are subject to final inspection and approval at Buyer’s plant or other place designated by Buyer. Such inspection shall be made within a reasonable time after delivery, irrespective of the date of payment. Notwithstanding any payment that may be made, no goods are to be deemed accepted until Buyer has had a reasonable opportunity to inspect them. Buyer’s inspection before, during or after manufacture and delivery shall not constitute a waiver of the right to later reject any such goods by reason of undiscovered or latent defects.
- Rejected Products.Buyer may return rejected Products at Seller’s expense. Seller shall not replace Products returned as defective unless so directed by Buyer in writing.
- Risk of Loss.The risk that Products may be lost, damaged or delayed in transit shall be borne by Seller until actual receipt of them by Buyer in conformity with the terms of this order.
- Passage of Title. Title in the Products shall pass to Buyer on delivery, provided payment for the Products is made prior to the delivery, in which case it shall pass to Buyer once payment has been made.
- Changes. Buyer may change drawings, specifications, quantities, delivery schedules, place of delivery or methods of shipment or packaging on any item at any time; and Seller agrees to make such changes. If such changes result in an increase or decrease in cost, an equitable adjustment of price and delivery schedules may be made, or Buyer may, at its option, cancel this order pursuant to paragraph 14 hereof if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten days of the change order. This order, together with any change orders or instructions, shall constitute one contract.
- Warranties.Seller warrants that all goods constituting Products supplied hereunder shall be free and clear of all liens and encumbrances, good and merchantable title thereto being in the Seller; be free from any defects in design, material or workmanship (latent or otherwise) and be of good and merchantable quality; conform to Buyer’s specifications and the sample approved by Buyer, as the case may be, and be fit for the purposes for which purchased hereunder; and comply and have been produced, processed and delivered in conformity with all applicable federal, state or other laws, administrative regulations and orders. The foregoing warranties shall survive inspection, delivery and payment and shall run in favor of Buyer and its customers.
- Non-Assignability.Seller shall not assign or sublet the work to be done hereunder without the prior written consent of Buyer; but this provision shall not restrict Seller in the procurement of component parts or materials. If this order shall be terminated for Buyer’s convenience, Buyer’s liability to Seller with respect to such parts or materials shall not exceed the amount for which Seller would be liable to its supplier or suppliers if such liability were determined on the basis of paragraph 16 hereof.
- Taxes. Except as otherwise expressly set forth on the face of this order, Buyer shall not be liable for any federal, state or local taxes, duties, customs, or assessments of any kind in connection with the sale, purchase, transportation, use, or possession of the Products ordered hereunder.
- Indemnity.Except for Products produced in strict accordance with Buyer’s design, Seller warrants that the sale or use of Products furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trade secret, trade name, trademark or any proprietary right of another in the United States or elsewhere, or subject Buyer or its customers (direct or indirect) to royalties in the United States or elsewhere; and Seller shall indemnify Buyer, its successors and assigns and its customers, whether direct or indirect, against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of an alleged breach of this warranty. If any Product or the use thereof is held to constitute infringement of any intellectual property right and the use thereof is enjoined, Seller shall, at its expense, either procure for Buyer, its dealers and customers, the right to continue using said Product or replace said Product with a substantially equal, but non-infringing product, acceptable to Buyer; or, if further use of the Product is not possible, Seller will accept the return of any unsold Product and refund to Buyer the purchase price and transportation costs therefor. Seller also shall hold harmless and indemnify Buyer, its successors and assigns and its customers, whether direct or indirect, against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the Products, except such as may be caused solely by the negligence of Buyer, its successors and assigns, and/or its customers.
- Insurance.Seller will maintain commercial general liability insurance in the amount of not less than one million dollars ($1,000,000); commercial automobile liability insurance for all owned, non-owned and hired automobiles in the amount of not less than one million dollars ($1,000,000), and any other applicable insurance coverage, with limits that are customary and reasonable for Seller’s operations and acceptable to Buyer. Seller shall maintain statutory worker’s compensation coverage meeting all state and local requirements, including employer’s liability with limits of no less than five hundred thousand dollars ($500,000). Seller’s insurance shall be primary coverage without right of contribution from Buyer or Buyer’s clients’ insurance. All policies, except worker’s compensation/employer’s liability, will be endorsed to include Buyer and Buyer’s clients as Additional Insured. Seller waives any and all rights and claims it may have against Buyer for losses covered under the Seller’s insurance policies, and waives any and all rights of subrogation against Buyer by its insurers. Seller will provide insurance certificates and copies of Additional Insured endorsements evidencing all requirements within this Insurance section, upon the earlier of (a) Seller’s acceptance of this Purchase Order or (b) the provision of goods and/or services by Seller as outlined in this Purchase Order. By requiring the insurance as set forth in this section, Buyer does not represent that coverage and limits will necessarily be adequate to protect Seller and such coverage and limits shall not be deemed as a limitation on Seller’s liability under the indemnities provided to Buyer in this Agreement.
- Cancellation by Buyer.Buyer shall have the right to cancel this order without cause and in such event Buyer’s liability for cancellation shall be limited to Seller’s actual cost for work and materials, applicable solely to this order, which shall have been expended before notice of cancellation, has been received by Seller. Buyer may, at its option, cancel this order without liability to Seller (except for conforming shipments previously accepted by Purchaser) in the event Seller shall cease to exist or become insolvent or the subject of bankruptcy or insolvency proceedings or shall commit a material breach in the performance of any part of its obligation hereunder.
- Fair Labor Standard Certificate.Seller hereby certifies that all Products furnished hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such goods.
- Governing Law.The Agreement shall be construed in accordance with, and all disputes shall be governed by, the laws of the State of Maine without regard to its conflict of laws provisions. Seller agrees to submit to the jurisdiction of the courts of Maine in the event of any proceedings therein in connection herewith.
- Remedies. If Seller breaches a warranty under this Agreement, or fails to perform or comply with any provision of this Agreement, Seller shall be liable to Buyer for all damages arising therefrom. Buyer expressly retains all its rights and remedies provided by law in the event of such breach. Without limiting the foregoing, Buyer may at its option require Seller to repair or replace, at Seller’s expense, any Products affected by a breach of warranty, even if such Products are located other than at Buyer’s facility. The rights and remedies of Buyer set forth herein shall be in addition to any rights or remedies which Buyer may have otherwise.
- Confidentiality. Any non-public information of Buyer or its clients that is provided to the Seller, including the terms and existence of this Agreement, is confidential and proprietary information of Buyer. The Seller agrees to: (a) keep all such information confidential; (b) only disclose such information to those employees or agents who have a need to know such information for the purpose of providing the Products under this Agreement and have agreed to keep such information confidential. Seller may not use Buyer’s name, logos or trademarks or advertise or promote its relationship with Buyer without the express written consent of Buyer.
- Policies. Seller shall abide by the policies set forth below and any other Buyer policies that are provided to Seller in writing.
(a) Gifts: The Seller may not provide gifts to Buyer employees unless such gifts are of a total value of $25 or less. This restriction excludes customary business entertainment.
(b) Conflicts: Buyer employees have an obligation to Buyer to conduct business in a manner that avoids an actual or apparent conflict of interest. The Seller is under a continuing duty to notify Buyer if any Buyer employee stands to gain any financial benefit from the relationship between the Seller and Buyer.
(c) Client Policies: If any services are to be performed by Seller on the premises of any Buyer client, the Seller agrees to abide by all applicable policies of such client.
(a) A notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the other party at its address as stated on the PO and delivered via registered mail, certified mail or overnight mail using a nationally recognized overnight courier. Either party may change its address for receiving notices by issuing a notice to the other party in accordance with the terms of this paragraph.
(b) No waiver by Buyer of any breach of the Agreement by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
(c) If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.
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Terms and Conditions
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