1. Products and Purchase Orders. PSS shall sell the Products to Customer and Customer shall purchase the Products from PSS; provided, however, that nothing herein requires PSS to sell any particular type or quantity of Products to Customer, or requires Customer to purchase any particular type or quantity of Products from PSS. Customer may request a change to or cancel a submitted Purchase Order at any time prior to PSS sending an Order Confirmation. For any change requests received after an Order Confirmation is made, PSS will use reasonable efforts to accommodate any order changes but may, in its sole discretion, cancel all or part of any order which has been changed by providing notice to Customer. PSS may apply an order cancellation surcharge for cancellations received more than 24 hours after an order has been placed. Customer agrees that Products purchased hereunder shall be for business or commercial purposes and not for personal, family, or household purposes.
(a) Product Warranty. For a period of 12 months following the date of shipment of the Products, all Products tendered by PSS to Customer will be in accordance with the specifications for such Product, if any. To the extent assignable, PSS will pass-through, transfer and assign to Customer any and all manufacturers warranties with respect to the Products. PSS’s liability under any warranty is discharged, in PSS’s sole discretion, by: (i) repairing or replacing the defective Product; or (ii) crediting or refunding the price of the defective Product, less any applicable discounts, rebates, or credits.
(b) Limitations. The warranties under this section do not apply where the Products have: (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, misapplication, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by PSS or the manufacturer; or (ii) been reconstructed, repaired or altered by persons other than PSS or its authorized representative.
(c) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, PSS NEITHER MAKES NOR AUTHORIZES ANY AGENT OR REPRESENTATIVE TO MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) In all instances, Customer should confirm that the Products selected are consistent with the original equipment manufacturers’ recommendations for the equipment operating conditions and Customer’s maintenance practices. It is Customer’s responsibility to verify that the selected Products are suitable for Customer’s intended use. Customer acknowledges and agrees that PSS is not familiar with Customer’s specific equipment, the particular application or the operating environment in which the Products are to be used and Customer’s only recourse against PSS arising from or relating to the Products is as set forth in PSS’s warranty.
3. Price.The prices which Customer shall pay PSS for Products shall be PSS’s prices in effect at the time and place of each delivery for the particular Product, grade, quantity and type of delivery involved, as established by PSS in the Price Quote sent to Customer. All Product prices are exclusive of taxes and freight charges.
4. Delivery. PSS reserves the right to determine the method of transportation and the means of making deliveries. If Customer is responsible for picking up Products, title and risk of loss shall transfer from PSS to Customer at PSS’s loading point. If PSS is responsible for delivery of Products, title and risk of loss shall transfer from PSS to Customer at Customer’s facility. Unless otherwise stated in the Commercial Provisions or the Purchase Order, PSS shall be responsible for delivering Products to Customer’s location(s) as indicated in this Agreement. PSS will make reasonable efforts to ensure that the lead time for an order is no less than five (5) business days for all U.S. locations, excluding federal holidays and weekends. The lead time starts the day the written order is placed with PSS, so long as the order is received no later than 5:00 p.m. EST. Any expedited order must be agreed to by PSS in its sole discretion. PSS may apply a surcharge to urgent orders.
5. Credit Terms. Credit may be extended to Customer at PSS’s sole discretion, which Credit may be withdrawn or modified at any time, without prior notification to Customer. When requested by PSS, Customer shall periodically provide to PSS that financial information or security deemed necessary by PSS to support any credit extension. If, during the Term of this Agreement, the financial capacity of Customer becomes impaired or unsatisfactory to PSS in the sole judgment of PSS, advance cash payment or security satisfactory to PSS shall be given by Customer on demand by PSS and shipments/deliveries may be withheld until such payment or security is received. Customer acknowledges that if PSS reduces, withholds, or terminates Customer’s Credit privileges, it will not constitute termination of this Agreement, nor will it relieve Customer of any duties or obligations under this Agreement or any other Agreement.
6. Invoicing, Payment, and Disputes. PSS will invoice Customer for all Products sold to Customer upon shipment. Unless otherwise specified in the Invoice, Customer must pay each invoice net 30 days from shipment without deduction, setoff, discount, allowance, notice, or demand, in United State dollars. Provided, however, PSS, in its sole discretion, may require immediate payment if Customer owes outstanding amounts to PSS or PSS’s affiliate entities, Pilot Travel Centers LLC or SFJ Inc. If Customer disputes the amount payable for any Products delivered, or any other obligations, Customer must pay the amount it reasonably believes is owed to PSS under the relevant Invoice and notify PSS in writing of the details of the dispute within ten (10) days of receipt of invoice. The parties will work together to reach a reasonable and expeditious resolution regarding the disputed portion of the invoice. Customer agrees that if it fails to notify PSS of the disputed invoice within ten days, PSS’s invoice will be considered correct.
7. Late Fees, Set-Off, and Collections. Customer agrees that any past due amounts shall bear interest at the rate of twenty percent (20%) per year, or the maximum rate permitted by the state of Customer’s residence, whichever is less. PSS may set off any amounts owed to Customer against any amounts Customer owes to PSS or to PSS’s affiliate entities, Pilot Travel Centers LLC or SFJ Inc., at any time upon notice. In the event Customer fails to make payment within the specified terms, such failure shall, at PSS’s option, be deemed a breach of the entire Agreement and, in addition to any other remedies it may have, including immediate termination of this Agreement, PSS shall have thereafter the right to suspend delivery and/or to demand advance cash payment. Customer agrees that, in the event Customer’s account is placed for collection, Customer shall pay all costs and attorneys’ fees associated with such collection proceedings if PSS prevails.
(a) Defective Products. Customer will inspect the Product promptly following its delivery to Customer and will notify PSS of any return request within 30 days of the delivery date. Before returning any Product, Customer must obtain PSS’s written return material authorization and instructions.
(b) Non-Defective or Conforming Products. Customer may return to PSS any non-defective or conforming Products for full credit of the net invoice price paid by Customer; provided, however, Customer’s returns for non-defective or conforming Product in a given calendar year may not exceed a dollar amount equal to one percent (1%) of Customer’s total purchases for the immediately preceding calendar year. In addition, to qualify for the stock adjustment return on non-defective or conforming Product: Products being returned must (i) have been purchased within the last twelve (12) months; (ii) be in resalable condition and in the original packaging; (iii) be within manufacturer acceptable date code for sale or return; (iv) free of rust and damage; (v) PSS must have sales history of the Product; (vi) quantity must not be excessive; and (vii) materials are not fasteners or similar items for which any required certification, documentation, or traceability would be lost. Regarding all non-defective or conforming Products returned, there shall be (A) a twenty percent (20%) handling fee charged by PSS on all special order parts, and (B) a ten percent (10%) handling fee charged by PSS on all other Products returned hereunder. Customer shall pay the cost of return freight on all returns. PSS will issue a credit memo to Customer within thirty (30) days after PSS receives the Products subject to the return.
9. Force Majeure. Neither party will be liable to the other or the other party’s Affiliates if it fails to perform its obligations under this Contract while and to the extent performance is delayed or prevented by a Force Majeure Event. “Force Majeure Event” means any circumstance reasonably outside the control of the affected party which prevents or delays performance of an obligation, other than the payment of money or the provision of security, under this Contract. Examples of Force Majeure Events include: (a) any natural or man-made disaster, such as a fire, explosion, landslide, earthquake, storm, hurricane, flood, tidal wave, or other adverse weather condition; (b) any armed conflict, revolution, act of a governmental or military authority, riot, blockade, embargo, trade sanction, act of terrorism or sabotage, or civil commotion; (c) any epidemic or quarantine restriction; (d) any shortage or cessation of any supply of labor, service, utility, or facility; (e) any shortage or cessation of supply, or inability to procure on reasonable terms, any raw material, feedstock, or other substance from which Products are derived or of any of Seller’s sources of supply for Products or their packaging; (f) any unavailability of or interference with, or inability to procure on reasonable terms, the means of transportation of Products; or (g) any unplanned shutdown, shutdown in anticipation of a breakdown, or malfunction affecting the plant or source of supply of Products, or closure or standstill at production or storage facilities; (h) compliance with any Applicable Laws which affects performance; or (i) any strike, lock-out, or labor dispute.
If a Force Majeure Event affects its performance, PSS may, in its sole discretion, modify, suspend, or cancel deliveries under this Agreement, or apportion any reduced quantity of Products as it deems necessary. If sources of supply or means of transportation are affected by a Force Majeure Event, PSS will have sole discretion of whether to obtain supplies or transportation from any alternative sources. Customer agrees that PSS will not be liable if PSS does not use alternative sources of supply or transportation during a Force Majeure Event. PSS reserves the right to increase the price charged for any Product as a result of a Force Majeure Event. The parties agree to promptly resume performance of their obligations under this Agreement when a Force Majeure Event or its results no longer prevent or delay performance. The term of this Agreement will not be extended because of any suspension or delay during a Force Majeure Event. If any Force Majeure Event lasts longer than 60 days, either party may terminate this Agreement with immediate effect by written notice to the other party. Each party will be responsible for its own costs incurred in relation to a Force Majeure Event. Each party must inform the other in writing as soon as reasonably possible when that party becomes aware of an actual or potential Force Majeure Event and when the Force Majeure Event ends.
10. Termination. Either PSS or Customer may unilaterally and with or without cause terminate this Agreement, either as to the whole Agreement or as to any part hereof, upon sixty (60) days’ prior written notice to the other party. PSS may immediately suspend deliveries or terminate this Agreement at any time in the event Customer by act or omission breaches or defaults on any covenant, condition or other provision of this Agreement, including, but not limited to, a failure to pay an undisputed invoice. Termination or non-renewal of this Agreement shall be without prejudice to either party’s accrued rights. Upon termination, any sums due and owing by Customer to PSS shall be credited against any sums owed by PSS to Customer, if any. In addition to any other remedies available to it, PSS may apply any or all of the security pledged by Customer to PSS pursuant to Section 5 of this Agreement toward satisfaction of any remaining amounts owed by Customer to PSS. If PSS continues to accept orders from Customer for the Products covered hereby following the expiration of the Term of this Agreement, such sales shall be upon all of the terms and conditions hereof; provided that neither such sales nor any other act by PSS shall be construed to evidence a renewal of this Agreement by operation of law or otherwise, for any further term.
11. Limitation of Liability. In no event shall either party be liable to the other for any special, incidental, indirect or consequential damages (including, but not limited to, loss of profits, loss of business or loss of use), or punitive or exemplary damages, whether under tort, contract, strict liability, statute or otherwise, arising out of or related to its performance of this Agreement. Customer shall provide PSS notice of any claims against PSS arising from its performance under this Agreement within twelve (12) months from date Customer should have first known of such claim.
12. Notices. Any and all notices to be given hereunder shall be in writing and delivered by pre-paid certified mail, return receipt requested, by overnight courier, or personally delivered to the other party at the address set forth in the Supply Agreement or at such other address as either party may designate by written notice to the other. A notice shall be deemed to have been given upon the addressee’s receipt thereof.
13. Confidentiality. The parties shall treat all information provided by the other party or generated or obtained in connection with performance of this Agreement (the “Confidential Information”), as confidential, including the elements of this Agreement, and any oral and written communications, information, documents, notes, data or other material in tangible, intangible or electronic form which the disclosing party (“Disclosing Party”) reasonably deems proprietary or confidential. The parties agree to promptly deliver to the Disclosing Party the Confidential Information and all work product upon the Disclosing Party’s request.
14. Assignment; Entire Agreement; Waivers. Customer shall not assign this Agreement without the prior written consent of PSS. This Agreement contains the entire agreement between the parties hereto relating to the subject matter hereof and there are no representations, understandings or agreements, express or implied, regarding the subject matter hereof which are not set forth herein. No modification of this Agreement, and no waiver of any provision hereof, shall be binding on a party unless in writing and signed by such party. Unless a specific time requirement is set forth in this Agreement, no failure or delay on the part of PSS or Customer in exercising any of their respective rights under this Agreement shall operate as a waiver of such rights. No single or partial exercise of any rights under this Agreement shall preclude any other or further exercise of such rights or the exercise of any other rights under this Agreement or otherwise under law.
15. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without reference to its conflict of law principles. CUSTOMER HEREBY WAIVES ANY RIGHT THAT IT HAS TO HAVE ANY DISPUTE RELATING TO THIS AGREEMENT, CUSTOMER’S APPLICATION FOR CREDIT, OR ANY RELATED DOCUMENTS, HEARD BY A JURY. ANY CLAIM BROUGHT BY CUSTOMER AGAINST PFJ MUST BE BROUGHT IN THE CUSTOMER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). CUSTOMER EXPRESSLY WAIVES ANY ABILITY TO MAINTAIN OR PARTICIPATE IN ANY CLASS ACTION IN ANY FORUM.
16. Attorneys’ Fees & Costs. Customer shall be liable to PFJ for any and all attorneys’ fees and costs incurred by PFJ to enforce this Agreement.
17. Conflict of Terms. PSS’s delivery of Product against a purchase order that contains terms and conditions inconsistent with, additional to or different from those set forth herein, shall not constitute acceptance of such terms and Customer agrees that all such terms and conditions shall be deemed rejected by PSS. PSS reserves the right to refuse service to any Customer (whether or not Product has already been delivered or released) if it submits purchase orders with terms and conditions inconsistent with, additional to or different from the terms and conditions of this Agreement.
18. Resale/Export/Trade Sanctions. Customer is not authorized to resell the Products without PSS’s prior written permission. Notwithstanding any such permission, Customer shall not market or sell Products outside of the United States and shall not market or sell Products to any third party that the Customer knows or has reason to believe may cause the resale or distribution of Products outside of the United States. If Customer is not a publicly held corporation, Customer represents and warrants that no government official of the United States or any other jurisdiction has a controlling interest in Customer. Each party shall comply with all applicable laws in the performance of this Agreement.
19. Pilot Receivable LLC. Pilot Receivables LLC is an affiliate entity of PSS. Any payments received or processed by or through Pilot Receivables LLC will be credited to Customer’s Account hereunder and shall be considered a valid and binding payment under this Agreement.
20. Relationship of the Parties. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between PSS and Customer.