TERMS AND CONDITIONS OF SALE

  1. These terms and conditions of sale shall control all sales, services, installations and deliveries directly and/or indirectly to Applicant and/or its respective successors and assigns directly or indirectly by and/or from PORTLAND and/or any of its wholly subsidiaries or divisions, including but not limited to those billed to separate job accounts made to and/or on behalf of Applicant by PORTLAND. THE TERMS SET FORTH IN THIS APPLICATION AS WELL AS THOSE ON PORTLAND’S WEBSITE, INVOICES, OTHER CONTRACTS, DELIVERY RECEIPTS AND/OR STATEMENTS GOVERN ALL TRANSACTIONS BETWEEN THE PARTIES. Terms and conditions set forth in any document supplied by Applicant shall be null and void and are hereby specifically rejected. PORTLAND may change Terms at its sole discretion. Applicant agrees that all services rendered, materials sold to and/or installed for and/or on behalf of Applicant on account constitutes a single interdependent contract subject to the terms and conditions set forth herein. Applicant acknowledges the price quoted is subject to additional Federal, State and local taxes.
  1. CREDIT TERMS: All invoices not paid in full within 30 days of each invoice date are subject to a monthly service charge of 1 and 1/2% simple interest (18% PER ANNUM). Applicant shall pay all costs of collection including without limitation reasonable attorneys’ fees in an amount not less than $600.00 per hour which Applicant acknowledges is reasonable and hereby waives any right to contest same. Payments are to be mailed to PORTLAND at the above address. All checks returned unpaid for any reason shall be subject to a service charge of $50.00. PORTLAND may change Credit Terms at its sole PORTLAND shall have the sole discretion and complete right to apply any payment received from Applicant hereunder in any manner which PORTLAND deems proper including without limitation applying payments first to late payment charges, service charges, shipping charges, attorney’s fees or any other applicable charge, in any order, before applying the remainder of any such payments toward Applicant’s principal account balance.
  1. PORTLAND accepts Applicant’s orders subject to approval. PORTLAND is neither obligated nor committed to extend credit to Applicant at any future time. Applicant and Guarantor acknowledge that the amount of credit requested and/or initially approved is not a cap on Applicant’s or Guarantor’s liability and may be unilaterally waived or changed without notice, at PORTLAND’s sole discretion liabilit Applicant WARRANTS THAT IT IS SOLVENT AND ABLE TO TIMELY PAY ITS BILLS WHEN DUE WHEN IT SIGNS THIS CREDIT APPLICATION AND THAT IT SHALL REMAIN SO AT THE TIME OF EACH PURCHASE/ ORDER. APPLICANT COVENANTS THAT IT WILL NOTIFY PORTLAND IN WRITING PRIOR TO ANY PROPOSED PURCHASE/ORDER MADE WHEN APPLICANT IS NOT ABLE TO PAY AND/OR NOT PAYING PAY ANY OF ITS BILLS WHEN THEY ARE DUE. Applicant knowingly makes these representations intending that PORTLAND relies on same to extend current and future credit and agrees that said reliance is reasonable. Applicant authorizes PORTLAND to perform services, deliver and/or install materials at a job site without the need for signed receipt and authorizes anyone at said site to accept delivery on its behalf of the Applicant.
  1. Title for all materials remain with PORTLAND until Applicant has paid in full for same. Should Applicant voluntarily or involuntarily file bankruptcy or take any other action to avoid making payment in full, Applicant agrees to immediately return all materials in the same condition as when received directly or indirectly from PORTLAND and/or allow the PORTLAND at its sole discretion to remove same from the Applicant’s property. Applicant shall keep all goods and or materials fully insured and insure PORTLAND as a loss payee on all policies of insurance until PORTLAND has been paid in full.
  1. INSPECTION: All materials delivered must be examined and inspected by Applicant upon receipt. Any claim of shortage and/or change must be made in writing at the time of delivery. Where Applicant and/or its agent are unable to examine and inspect material upon receipt, Applicant shall notify PORTLAND in writing and all claims must be made within (3) working days of delivery. Any claim made after the prescribed period will be honored only as determined at PORTLAND’s sole discretion.
  1. RETURNS: Stocked items which are defective when received shall be returned within five calendar days from delivery without prior authorization for credit or replacement. Credit for properly returned stock items will be given provided said material is received in the same condition as sold. Non-stock items cannot be returned without prior written authorization. Restocking charges imposed by the manufacturer will be charged to Applicant. Credit for properly returned non-stock items shall be given only after PORTLAND receives refund in full from the manufacturer. All returns must be accompanied with an original invoice number of purchase reference and bona fide reason for the return. Any non-defective item timely returned is subject to PORTLAND’s restocking charge of 25%.
  1. RISK OF LOSS: If PORTLAND uses an independent carrier, then the shipment terms shall govern risk of loss. If the shipment terms are ambiguous, then the contract shall be deemed a shipment contract for the purposes of determining risk of loss. If PORTLAND does not use an independent carrier, risk of loss of any materials shall pass to Applicant as soon as the said goods and/or materials are delivered to Applicant at its place of business or any place designated by Applicant for delivery.
  1. SHIPPING DELAY/DEFECTS: On all orders placed for stock, out of stock and special-order materials, where the delivery date is not directly and solely delayed by PORTLAND, Applicant shall hold PORTLAND harmless for any delay and agrees to make payment in full for said goods. Applicant further agrees that PORTLAND will not be responsible for any manufacturers shipping defect or any injury to person(s) as a result of such defect and shall indemnify and hold PORTLAND harmless for any losses, damages, claims, and attorney fees directly or indirectly arising therefrom.
  1. Applicant holds PORTLAND harmless for any delay in delivery and agrees to make timely payment in full for materials provided and/or installed irrespective of delay Applicant agrees that the sole remedy for any damage, loss or default directly or indirectly arising from, related to or concerning any services rendered, materials sold to and/or installed for and/or on behalf Applicant directly and/or indirectly by PORTLAND shall be limited to the amount PORTLAND received from Applicant on the invoice for the allegedly defective services rendered, materials sold to and/or installed for and/or on behalf Applicant giving rise to said claim. Applicant further agrees that PORTLAND will not be responsible for any defect in the material delivered and/or installed as well as for any injury to person(s) as a result of any defect or issue arising from the material and/or installation thereof and shall indemnify, defend and hold PORTLAND harmless for any losses, damages, claims, and attorney fees directly or indirectly arising therefrom.
  1. Applicant waives any claims of offset or setoff against any claim of PORTLAND. Applicant waives any claim for consequential and/or incidental damages, losses, attorney’s fees and or damages concerning, relating and/or arising from any defective or unfit materials or shipment delays or cancellations and/or any services rendered, materials sold to and/or installed and/or to be supplied and/or installed for and/or on behalf Applicant by PORTLAND. Applicant shall indemnify and hold harmless PORTLAND from every claim, demand, loss and/or attorney’s fees damages concerning, relating and/or arising from any services rendered, materials sold to and/or installed and/or to be supplied and/or installed for and/or on behalf Applicant directly and/or indirectly by PORTLAND.
  1. PORTLAND makes no guarantees or warranties of any kind whatsoever, including, without limitation, warranties of merchantability or fitness for purpose, either express or implied, of any materials directly or indirectly delivered and/or sold by PORTLAND and to the full extent allowed by law, PORTLAND disclaims all implied warranties. The only warranties provided on materials and/or goods sold are the warranties provided by the appropriate manufacturer.
  1. Applicant hereby submits to the personal jurisdiction of Massachusetts and consents to be sued in Massachusetts and further agrees that any litigation brought against PORTLAND must be brought in a Massachusetts State Court. This is a Massachusetts contract and all contracts between the parties shall be interpreted under the laws of the same.
  1. Applicant grants PORTLAND all the rights and remedies provided to secured parties under Article 9 of the Uniform Commercial Code as enacted in Massachusetts. Applicant hereby grants PORTLAND a purchase money security interest in all materials which it has or will purchase and all proceeds therefrom as well as a security interest in all of Applicant’s assets (“Collateral”) with all of the rights of a secured creditor under the UC Applicant irrevocably authorizes PORTLAND as its attorney-in fact to sign, file and/or record in any jurisdiction at any time and from time to time “all asset” UCC financing statement(s) and/or amendments thereto on its behalf to secure all obligations (including without limitation, costs of collection, interest and the reasonable attorney fees) of Applicant now due and which may become due as well as to establish, protect and enforce PORTLAND’s rights under the Uniform Commercial Code as enacted in Massachusetts (unless any state where Applicant has a place of business affords greater protections to PORTLAND). In the event of a default by Applicant or Guarantor(s) PORTLAND may at its sole discretion exercise all rights afforded by Article 9 of the UCC and may reclaim all materials sold by it to Applicant.
  1. TO THE FULLEST EXTENT ALLOWED BY LAW, APPLICANT HEREBY SUBORDINATES ALL OF ITS EXISTING AND FUTURE HOMESTEAD RIGHTS TO ANY JUDICIAL AND/OR STATUTORY LIEN OBTAINED AND/OR RECORDED BY US TO SECURE PAYMENT OF ANY OF APPLICANT’S CURRENT AND FUTURE DEBTS OR OBLIGATIONS. APPLICANT HEREBY GRANTS PORTLAND AN IRREVOCABLE POWER OF ATTORNEY AND IRREVOCABLY AUTHORIZES PORTLAND AS ITS ATTORNEY IN FACT TO SIGN AND RECORD ON BEHALF OF APPLICANT AT ANY TIME AND FROM TIME TO TIME IN ANY JURISDICTION ANY DOCUMENT TO EFFECT SAID SUBORDINATION. APPLICANT AND UNDERSIGNED INDIVIDUAL(S) WAIVE HIS/HER/ITS RIGHT TO A TRIAL BY JURY.
  1. Applicant acknowledges that this is a commercial transaction relating solely to its business and that all materials sold to Applicant hereunder shall be for commercial Applicant represents and warrants that Applicant is not a “consumer” as defined in the Federal Consumer Credit Protection Act, or any other consumer credit laws (Federal, State or Local), and Applicant waives all rights granted to consumers under the Federal Consumer Credit Protection Act, and other Federal, State, and Local laws pertaining to “consumer” Applicant further represents and warrants that all purchases made from PORTLAND and any credit extended hereunder will be used solely for business and commercial purposes and/or business purposes only and will not be used by the Applicant for personal, family and/or household purposes.
  1. Applicant understands that it must notify PORTLAND at the above address and addressed to the attention of Credit Manager in writing and by certified mail, return receipt requested, of any changes in ownership, the name of the business or structure of the Applicant within 30 days of same and that failure to timely do same renders Applicant liable for all its own debts as well as and jointly and severally liable for the debts of the new Owner. If the UNDERSIGNED breaches this obligation, the UNDERSIGNED individuals in their personal capacity, the Applicant and the new owner of Applicant and/or successor entity or person shall all be jointly and severally liable to PORTLAND for all balances due and owing at and from the time of the transfer going forward. Balances due and owing from Applicant shall not be transferred without our express written consent, which may be withheld at our sole discretion. Applicant agrees to provide PORTLAND with prompt written notice of any change in Applicant’s name, address, ownership or form of business entity. Applicant’s failure to provide such prompt written notice to PORTLAND shall constitute a waiver of any rights regarding such a
  1. Applicant shall notify PORTLAND in writing of the name and address of the general contractor, name and address of the project owner, and the location of any project immediately upon request by PORTLAND. Applicant acknowledges that PORTLAND has no obligation to waive or subordinate any lien obtained under the mechanic’s lien law absent payment in full for materials used on that particular property. Further, Applicant agrees to pay all lega1 fees and court costs, including but not limited to recording fees, incurred by PORTLAND while attaching, perfecting, enforcing any mechanic’s lien.
  1. The invalidation of any part hereof shall not act as an invalidation of the whole hereof and all not invalidated parts shall be enforceable. Titles are for reference only. Facsimile and email transmission of signature is enforceable as an original signature. PORTLAND reserves all other remedies in law and equity and that all remedies set forth herein are cumulative theret APPLICANT’S SIGNATURE ATTESTS FINANCIAL RESPONSIBILITY, ABILITY AND WILLINGNESS TO PAY IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS APPLICATION AS WELL AS THOSE ON PORTLAND’S WEBSITE, INVOICES, OTHER CONTRACTS, DELIVERY RECEIPTS AND/OR STATEMENTS. The Undersigned individual who is either the sole proprietor, majority partner, principal stockholder or manager of the credit Applicant, recognizing that his or her individual credit history may be a factor in the evaluation of the credit history of the Applicant, hereby consents to and authorizes the use of a consumer credit report on the Undersigned by PORTLAND and its agents, employees and attorneys from time to time as may be needed, in the credit evaluation and/or collection process and hereby indemnifies and holds harmless PORTLAND, its agents, employees and attorneys from any loss, claim and/or costs resulting from same. In connection with such inquiries, the UNDERSIGNED hereby authorizes the release of credit information to PORTLAND by all credit reporting agencies, banks and creditors of Applicant. The UNDERSIGNED agrees that PORTLAND its agents, employees and attorneys may provide any such credit information to others without the UNDERSIGNED’s prior consent. This authorization is continuing in nature and shall remain in effect during the full terms of this agreement.

APPLICANT STIPULATES THAT ANY BREACH OF ANY COVENANT AND/OR WARRANTY AS TO SOLVENCY AT TIME OF PURCHASE SHALL BE DEEMED INTENTIONAL AND WAIVES THE RIGHT TO CHALLENGE SAME. APPLICANT RECOGNIZES THAT THESE WARRANTIES AND COVENANTS ARE APPLICANT’S AFFIRMATIVE OBLIGATIONS AND MATERIAL REPRESENTATIONS UPON WHICH PORTLAND IS AND WILL RELY UPON FOR EACH SALE. THE UNDERSIGNED INDIVIDUAL(S) AND APPLICANT ACKNOWLEDGE THAT EACH OF THE ABOVE WAIVERS, REPRESENTATIONS, COVENANTS AND SUBORDINATIONS ARE KNOWINGLY AND VOLUNTARILY MADE AND THAT EACH IS A MATERIAL TERM AND CONDITION IN PORTLAND’S DECISION TO EXTEND CREDIT. THE APPLICANT AND UNDERSIGNED INDIVIDUALS ACKNOWLEDGE READING AND FULLY UNDERSTANDING EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN AND SIGNS THIS CONTRACT KNOWINGLY AND VOLUNTARILY.