This document (the “Terms and Conditions”) establishes the rights, obligations, and remedies of Hirsch Pipe & Supply Co., Inc. (“Seller”) and any of the following: (i) an applicant named on any credit application or master sales agreement that specifically references these Terms and Conditions, or (ii) any other individual purchasing material from Seller through an arrangement that references these Terms and Conditions as governing such purchase (any of the foregoing, a “Buyer”). These Terms and Conditions include all of the following, which are included herein by reference: (i) the terms and conditions on any and all quotations, invoices or delivery tickets provided by Seller to Buyer in conjunction with Seller’s provision of material to Buyer, and (ii) the terms provided for in any and all applications for credit, personal guaranties, security agreements, or master sales agreements signed now or in the future by Buyer. Any other agreements, including but not limited to any terms include in Buyer’s purchase orders or Buyer’s requests for quote, will not be binding upon the parties unless accepted in writing by an officer of Seller.
TERMS OF SALE:
Unless stated differently on Seller’s invoice, the normal payment terms are 1% 10th Prox Net 25th. There will be a 1% discount allowed only when payment is received by the 10th of the month following the date of purchase. Any discount taken after the 10th of each month will be disallowed and will be charged back to the Buyer’s account. Any invoice not paid by the 25th of the month following the date of invoice will be subject to a service charge of 1.5% per month.
PRIOR CREDIT APPROVAL:
Seller reserves the right to approve Buyer’s credit prior to sale and shipment of merchandise. Without prior notice, Seller may, at its sole discretion, and at any time(s) increase or decrease the amount of credit, if any, it extends to Buyer.
Quotations are subject to change in price and items without notice unless indicated otherwise in the quotation. Buyer must notify Seller in writing of any discrepancies within 10 days of receipt of invoice; otherwise, invoice shall be conclusively deemed correct as originally submitted.
Although every effort will be made to ship in accordance with the shipping dates specified, shipping dates are approximate and the Seller shall not be liable for any damages suffered by late delivery. Any and all delivery dates given by Seller are estimates only. Buyer is cautioned to make allowance for delays and is warned that Seller shall not be liable to Buyer, to a general contractor, or to an owner for delays in delivery.
All products sold by Seller are sold without any warranty except for passing on the warranties of the manufacturer of the product. Without limiting the generality of the foregoing, Seller makes no warranty, either expressed or implied, as to the merchantability, fitness or suitability of any product sold.
LIMITATION OF LIABILITY:
Seller shall not, under any circumstances, be liable for special or consequential damages, such as but not limited to (i) damage to or loss of other property or equipment; (ii) loss of profits, revenue, or reputation; (iii) cost of replacement goods: (iv) cost of storage, handling and care of damaged, defective or nonconforming goods; or (v) claim of Buyer’s customers for service interruptions. The liability of Seller arising out of or related in any way to sale, delivery, resale, installation or use of the goods sold by or furnished by Seller, whether arising out of contract, negligence, strict tort, or in any warranty or otherwise, shall not exceed the price of the specific goods upon which liability is to be based. Buyer’s remedies for any breach of this agreement by Seller or with respect to the Seller’s liability under this agreement shall be limited to Seller’s choice of any one of the following: (i) the repair of the goods; (ii) the replacement of the goods, or (iii) the return of the goods in question to the Seller and the return to the Buyer of any consideration paid to Seller for said goods.
CLAIMS FOR SHORTAGE OR DAMAGE AND RETURNS:
All claims for shortages and/or damages must be made to Seller within three days of discovery, but in no event later than ten days from the date of delivery. Goods may not be returned to the Seller for credit without Seller’s prior written consent.
RETURNS OF GOODS:
Merchandise may not be returned without Seller’s written authorization, and must be in clean, unused and undamaged condition with original packaging and with all original parts. For authorized items, credit will be issued at the invoice price. A restocking charge of fifteen percent (15%), or greater if so charged by Seller’s supplier, will be made on all returned items. Special order items may not be returned.
As a service to Buyer and as means of facilitating the orderly preparation of conditional waivers and releases on job accounts, Seller may inform Buyer’s customer (the general contractor or other entity), of the amount owed to Seller by Buyer on any job accounts.
Buyer will pay service charge of 1.5% per month on all past due balances.
PAYMENT AND COLLECTION CHARGES:
Payment on any past due account is to be made at Seller’s option to its administrative offices in Van Nuys, California. If Buyer fails to make any payments when due, Buyer’s account shall become immediately due and payable. Buyer agrees to pay to Seller all costs of collection, including by not limited to reasonable attorney’s fees, third party collection fees, court costs, sheriff’s fees, bond costs, and lien costs incurred in collecting all money due Seller from Buyer.
Buyer grants and Seller retains a purchase money security in the products hereunder until the net purchase price is fully paid and all other obligations of the Buyer are satisfied. Seller may exercise any and all rights and remedies to recover its security interest including, but not limited to: legal action, application of mechanics lien laws, and repossession of material from Buyer’s premises or Buyer’s agent’s premises.
Some of the products sold by Seller may contain materials deemed potentially harmful under California State legislation. Please consult the products labeling for details or contact your salesperson for more information.
These Terms and Conditions will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms and Conditions is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms and Conditions without affecting the enforceability or validity of the remaining provisions.
The failure of either Seller or Buyer to insist upon the strict performance of any of these Terms and Conditions will not be deemed to be a waiver of any of the right or remedies of Seller or Buyer, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions will be valid unless in writing signed by a duly authorized representative of the waiving party.