Terms & Conditions of Sales
Effective Date: May 2021
1. GENERAL. The Terms and Conditions of Sale (“Terms”) set forth herein, including all Exhibits hereto, if any, represent the entire agreement between PCG Trading, LLC d/b/a Converge (“Converge” or “Seller”) and you (“Buyer“) with respect to the materials and goods (“Products”) being purchased by Buyer and cancels all prior understandings, written or oral. These Terms are deemed an offer and a rejection of any other terms or conditions contained in any Buyer documents (which, if construed to be an offer, is hereby rejected). Buyer, by accepting any Products, making any payments, or ordering any Products, will be deemed to have assented to these Terms and conditions. Any addition or change to these Terms must be specifically agreed to in writing by a duly authorized officer of Converge before becoming binding on Converge.
2. PRICES AND ORDERS. All prices quoted are subject to change, without notice, at any time prior to Converge’s acceptance of Buyer’s purchase order, to such prices prevailing at time of acceptance by Converge in its sole discretion. Buyer may not cancel or reschedule its order except upon written acceptance by Converge. If there is a delay in completion of shipment of order due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information required for completion of order, the price agreed upon at time of acceptance of order is subject to change. Prices do not include any taxes, freight, handling, duty (including but not limited to tariffs) or other similar charges, payment of which will be solely Buyer’s responsibility.
3. TERMS OF PAYMENT. Terms of payment are net 30 days from invoice date. All payments shall be made by company check, credit card, or by wire transfer to an account which will be designated by Converge in accordance with the terms as set forth herein, without abatement, set-off, or deduction of any amount whatsoever. A finance charge of 1.5 percent per month will be added to all invoices not paid within specified terms. Converge reserves the right to modify any payment terms prior to shipment, require payment in advance, or delay/cancel any shipment or order for any reason (including Buyer creditworthiness). In the event Converge commences any collection action or actions against Buyer as set forth herein, Buyer agrees to pay reasonable legal expenses incurred by Converge, whether or not suit is filed.
4. CREDIT. All sales are subject to the approval by Converge’s credit department. Any credit balance or other sum owed to Buyer which remains unclaimed by Buyer for a period of twelve months will become the property of Converge as an administrative fee for maintaining such account.
5. DELIVERY. If an estimated of time of shipment or delivery has been made in a proposal, it is understood that it is approximate only; actual shipping and delivery times are dependent on receipt of Buyer’s Order, available supply, and prevailing market conditions.
6. STORAGE. In the event that Buyer is unable to accept delivery of Product at the time of shipment, Converge shall invoice Buyer for the full purchase price as if shipment had been made and (1) if Converge is able to store such Product in its own facilities, Buyer will pay Converge reasonable handling and storage charges for the period of such storage; (2) if Converge is unable to store such Product in its own facilities, Converge reserves the right to arrange handling and storage in a suitable facility for Buyer at Buyer’s expense. Converge will hold Products for up to a maximum of ninety (90) days (or as otherwise agreed in a signed writing), and Buyer agrees to accept delivery of Products upon completion of such period at Buyer’s sole expense.
7. SECURITY INTEREST. Converge retains a purchase money security interest and lien in equipment, goods or merchandise sold to Buyer wherever located, and in the proceeds of any resale of such equipment, goods, or merchandise, until the invoice for the applicable equipment, goods or merchandise is paid in full, including any late charges and costs of collection. Buyer hereby authorizes Converge, at Buyer’s expense, to take such action as may be necessary to perfect and protect Converge’s security interest, including the filing and/or recording of Uniform Commercial Code Financial Statements, and grants Converge the right to execute Buyer’s name thereto. In the event of a default by Buyer of any of its payment obligations hereunder, Converge shall be entitled to any of the rights and remedies provided by law. Buyer shall at its expense protect and defend Converge’s rights against all persons claiming against or through Buyer at all times keeping the equipment goods or merchandise sold hereunder free from any legal process or encumbrance whatsoever, including, but not limited to liens, attachments, levies, and executions, and shall give Converge immediate written notice thereof and shall indemnify and hold Converge harmless from any loss caused thereby.
8. PRODUCT RETURNS / RMA POLICY. Converge does not accept returns for any Products without a Return Material Authorization (“RMA”) issued by Converge. Unless otherwise agreed in writing, RMA requests must be received by Converge within 30 (thirty) days of the date of invoice. In the event Products are returned in error, Converge will contact Buyer if any Products returned are found not to be non-conforming. Buyer will be responsible for any applicable administrative, testing, restocking, and/or shipping fees for Products returned in error. Converge may, at its own discretion, refuse to issue an RMA for return of Products or may require that the Buyer pay to Converge a reasonable restocking fees as a condition of issuing to Buyer the RMA. If the Product returned by Buyer is determined not to have been purchased from Converge, Buyer will be duly notified by Converge. Buyer must decide within five (5) working days of notification concerning the disposition of the Product. Converge reserves the right to collect from Buyer all fees associated with returning Product to Buyer or disposing of the Product and an administration fee to defray costs associated with processing the RMA.
The following RMA policy pertains only to those warranties serviced by Converge, which is only to be granted in writing, signed by Converge. Products must be returned within the warranted period. Claims must be made and requested RMA issued no later than seven (7) days before the expiration of the applicable one year warranty period. Converge reserves the right to require a written test report from a certified testing facility of its choice for claimed non-conformances of Products. In the event that the Product returned by Buyer for warranty service is diagnosed as “not defective”, Converge reserves the right to invoice Buyer its then current Converge service charges, transportation, and insurance charges from Converge’s designated facility. Buyer’s sole and exclusive remedy for non-conforming Products and Converge’s entire liability shall be for Converge to refund or credit to Buyer the amount paid for the Product.
9. WARRANTY. Buyer acknowledges that Converge is acting solely as a distributor of the Products covered by these Terms and that Converge shall not be responsible for any liability, claims, damages, obligations, and costs and expenses related to the Products. Converge shall pass through to Buyer any warranty delivered to Converge by the Original Equipment Manufacturer (“OEM”) for Products. Converge makes no representations, warranties, or covenants with respect to the existence or enforceability of any OEM’s warranty. Absent of an OEM’s warranty, Converge warrants Products shipped one (1) year from the date of delivery. Buyer’s exclusive remedy, if any, under these warranties is limited, at Converge’s election, to: (a) refund of Buyer’s purchase price, or (b) replacement of any such Product. Buyer acknowledges that except as specifically set forth herein, CONVERGE MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, NONINFRINGEMENT, OR OTHERWISE. CONVERGE ASSUMES NO RESPONSIBILITY OR LIABILITY FOR OEM’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO CONVERGE.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL CONVERGE HAVE ANY LIABILITY OR OBLIGATION TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART BY (a) ANY INADEQUACY, DEFICIENCY, OR DEFECT IN ANY PRODUCTS OR SERVICES (WHETHER OR NOT COVERED BY ANY WARRANTY), (b) THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, (c) ANY FAILURE OR DELAY IN CONVERGE’S PERFORMANCE HEREUNDER, (d) FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LABOR COSTS INCURRED BY THE BUYER, DAMAGES RESULTING FROM LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND SERVICES, INCIDENTAL, OR OF REPLACEMENT GOODS OR SERVICES, REWORK, LOSS OF DATA, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER CAUSED, INCLUDING NEGLIGENCE, WHETHER OR NOT BUYER HAS INFORMED CONVERGE OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT WILL CONVERGE’S LIABILITY, REGARDLESS OF BASIS, EXCEED THE PRICE PAID FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
11. CLAIMS; ACKNOWLEDGEMENT. No action, suit, or other proceeding, regardless of form, arising out of or related to the transactions covered by these Terms may be brought by either party against the other party more than twelve (12) months after the cause of action arose.
12. TITLE AND RISK OF LOSS. Unless otherwise mutually agreed in writing, Freight terms, when Converge ships Products, are EXWORKS (INCOTERMS 2020) from Converge’s facilities in North America and FCA (INCOTERMS 2020) from Converge’s facilities outside of North America, with freight charges, duties and taxes and the risk of loss or damage to pass to Buyer upon delivery to the freight carrier. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
13. COMPLIANCE WITH LAWS. Buyer shall comply with all applicable national, state, and local laws and regulations, including export or resale restrictions, relating to the Product. Diversion of products purchased by Buyer contrary to United States and the exporting nation’s law are prohibited. The product and material may require a valid export license issued by the U.S. Department of Commerce prior to the export of such property.
As a condition of sale, Buyer will abide by all regulations (including export laws) and conditions of any issued licenses. Converge does not warrant and will not be liable for any error regarding the accuracy of any statement as to product country of origin, ECCN, HTS Code, RoHS compliance, parametric data, conflict mineral data, or compliance with applicable law. Buyer certifies it shall comply with all applicable laws, including the labor laws and regulations, export laws and anti-bribery regulations in the jurisdictions where Buyer operates, and abide by all regulations conditions of any issued licenses.
14. INTELLECTUAL PROPERTY. If applicable, all rights in intellectual property owned or licensed by Converge are hereby reserved and deemed restricted or limited. Converge makes no representation or warranty with respect to such rights and will have no liability in connection with them. Buyer agrees to comply with all requirements with regard to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating, reverse engineering, or disclosing the same). Buyer will indemnify and hold Converge harmless from and against any claim of intellectual property infringement: (1) relating to the use or sale by Buyer of any of Products delivered hereunder in any combination, method, process, or programming application and/or (2) arising out of compliance by Converge with specifications furnished by Buyer. In the event that any such claim is asserted against Converge, Converge will promptly notify Buyer of the assertion thereof and will permit Buyer to assume control of the litigation provided that Buyer will not settle such claim without Converge’s prior written consent (such consent not to be unreasonably withheld). Each party shall cooperate with the other and furnish all aid, information, and assistance necessary to defend any such claim of patent infringement.
15. GOVERNMENT CONTRACT CONDITIONS. If an Order is placed under a contract with the Government, Converge agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of Order placement, notified Converge of same, it being understood that all Converge products are classified as commercial, off the shelf parts.
16. EQUAL EMPLOYMENT. To the extent not exempt, Buyer and its subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
17. GOVERNING LAW. These Terms shall be deemed to be entered into in the Commonwealth of Massachusetts and to be a Massachusetts contract and shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Buyer specifically agrees that any legal action brought relating to goods purchased or relating to these Terms, must be brought and tried in the United States District Court for the District of Massachusetts, Superior Court of Essex County or the Peabody District Court in Peabody, Massachusetts. Buyer agrees to be responsible for direct damages incurred by Converge and reasonable attorney fees and costs. All objections to venue are hereby waived by Buyer. Buyer consents to service of process by certified mail addressed to the same address as that address designated for delivery of the goods purchased hereunder. The substantially prevailing Party in any legal action or proceeding to enforce these Terms will be entitled to recover from the non-prevailing Party its reasonable attorneys’ fees, and related costs and disbursements, incurred in connection with such proceeding or the enforcement of these Terms. THE PARTIES AGREE TO WAIVE TRIAL BY JURY TO THE MAXIMUM EXTENT OF THE LAW.
18. FORCE MAJEURE. Converge will not be liable for any damages due to any failure or delay in its performance as result of fire, strikes, labor stoppages, acts of God, shortages of fuel, energy or materials, the failure of suppliers or subcontractors to satisfactorily meet schedule deliveries, the establishment of any priority systems by the U.S. Government or any of its agencies, or any other factor or cause beyond Converge’s reasonable control, including disease or pandemic (collectively “Force Majeure”).
19. WAIVER. The waiver by either party hereto of any remedy with respect to a breach of any provision hereof shall not be taken as a waiver of a remedy with respect to any succeeding breach of such provision or any breach of other provisions.
20. SEVERABILITY. The parties agree that each provision contained in these Terms shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses hereto. Moreover, if one or more of the provisions contained in these Terms shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at all, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the extent compatible with the applicable law.
21. MODIFICATION. These Terms are subject to change and are effective upon Converge posting the updated Terms to its website at www.converge.com. These Terms may not be modified by Buyer except by mutual written agreement referring specifically to these Terms and signed by a duly authorized officer of Converge.