TERMS AND CONDITIONS
FOR THE SALE OF GOODS
These Terms and Conditions are part of and incorporated by reference in, and are the exclusive terms and conditions governing, any and all Sales Orders (the “Order”) issued by Phoenix Electric Mfg. Co. (the “Seller”) to its customers (the “Buyer”). Any differing or additional terms and conditions are expressly rejected:
1. Time of Delivery
Seller shall not be liable for failure to deliver goods on a timely basis, which failure is caused (in whole or part) by acts of God, labor disputes, accidents, weather conditions, the request of any person or agency exercising governmental authority, war, civil disturbance, material shortage, equipment failure, interruption of its facilities, power failure, riot or any other force majeure or any other event beyond its control (and any of the foregoing affecting any of Seller’s subcontractors) during the continuance of such condition(s) and for a reasonable period of time thereafter. During such period Seller may suspend, reduce or cancel deliveries or if such period continues for an unreasonable (in Seller’s opinion) length of time, Seller may cancel this order.
2. Freight Charges
Buyer shall pay all freight and related transportation charges. All goods will be shipped FOB Seller’s plant.
3. Risk of Loss
Delivery shall be deemed complete when the goods have been delivered to a freight carrier for delivery to Buyer, notwithstanding any agreement to pay freight, or other transportation charges. Buyer shall bear all risk of loss or damage during transit.
4. DISCLAIMER OF WARRANTY
ALL GOODS TO BE PROVIDED BY SELLER HEREUNDER ARE WITHOUT WARRANTY OF ANY KIND OR NATURE WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF QUALITY OR PERFORMANCE. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES.
5. Limits of Liability
In no event shall Seller or its employees, agents or owners be liable for any damages arising out of the failure to timely perform its obligations hereunder, the use or inability to use the goods provided hereunder, or the failure of the goods provided hereunder to conform to Buyer’s specifications or if such goods are proved to be defective, including, but not limited to, any damages for lost profits, incidental, special, consequential, or other damages similarly arising out of any breach of any customer order or obligations under this Order, or anticipated benefits. Even if Seller has been advised of the possibility of such damages, Buyer agrees that in no event shall Seller’s liability under Order exceed the total charge actually paid by Buyer for the goods to be provided hereunder. The parties understand and agree that no action arising out of any claimed breach of the Buyer’s order or any transactions thereunder may be brought by Buyer more than two years after the cause of action has accrued. The limitations of liability contained in this Section 5 shall apply to any claim by Buyer against Seller of every kind or character whatsoever, whether such claim is based on a theory of contract law, tort law or otherwise. The provisions of this section are intended by the parties to apply even if such provisions have the effect of exculpating Seller from legal responsibility for the consequences of its negligence, fault or other conduct. Goods shall be inspected when received and Seller is not liable for any defects unless notified in writing within ten (10) days after receipt of such goods by Buyer.
Buyer agrees that Seller may subcontract all or any apart of this Order without notice to Buyer and without Buyer’s consent.
7. Order Confidential
This Order is confidential between Buyer and Seller and it is agreed by Buyer that none of the details connected herewith shall be published or disclosed to any third party without Seller’s written permission.
8. Order Fulfillment
This Order is considered filled and completed when shipped within 10% over or under the specified quantity term.
In the event of a conflict or inconsistency between the terms and conditions of this Order and the terms and conditions contained in any of Buyer’s documents, including, without limitation. Buyer’s purchase order, the terms and conditions of this Order shall control in all events and circumstances. By submitting a purchase order to Seller, Buyer accepts all the terms and conditions contained in this Order and expressly waives all terms and conditions other than those contained in this Order.
Buyer shall pay any taxes imposed by law upon or on account of the sale of the goods covered by this Order.
All amounts due Seller hereunder are (i) on a net cash basis; (ii) to be made in U.S. dollars; (iii) exclusive of any applicable excise and sales taxes, whether now existing or hereinafter imposed by any applicable taxing authority; and (iv) not subject to any offsets, charges or any other deductions or countermands whatsoever. All invoices shall be paid per Seller’s payments terms.
12. Late Payments Charge
A late payment charge will be paid by Buyer computed at the rate of one and one half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, for the unpaid amount of each invoice for each calendar month (or fraction thereof) that such payment is not made.
All molds, dies, cavities, core pins, thread sections, fixtures, broaches, plungers, plates, models, other tooling and the like, ordered by Buyer and/or used to manufacture, fabricate, assemble, inspect or otherwise produce any products ordered by Buyer (unless expressly stated on this Order to the contrary) are the property of Seller. Seller shall retain all right, title and interest in the foregoing, including without limitation, intellectual property rights. Buyer makes no claim to any of the foregoing and acknowledges the rights of the Seller therein. Buyer obtains in consideration for full payment of any tooling or engineering charges, the right to have Seller (if so accepted by Seller) manufacture products from such tooling for Buyer and for no other purpose. The parties acknowledge that it is contemplated that Buyer will place orders with Seller for any products to be made with such tooling. Unless there is a written agreement as to the specific number of parts which can be produced from such tooling, it is agreed that whenever necessary, from time to time, such tooling shall be repaired, maintained, modified and replaced at Buyer’s expense. Charges made for molds, dies, cavities, core pins, thread sections, fixtures, broaches, plungers, plates, models, other tooling and the like do not convey the right to remove such from Seller’s facilities. Any request to remove such molds, dies, cavities, core pins, thread sections, fixtures, broaches, plungers, plates, models, other tooling and the like will require an additional charge equal to the full amount of the tooling or engineering charge to be paid by Buyer hereunder, including blueprint revising. Seller reserves the right to scrap, at Seller’s discretion and with notice to Buyer all such molds, dies, cavities, core pins, thread sections, fixtures, broaches, plungers, plates, models, other tooling and the like not used for a period of two years.
14. Patent, Copyright and Intellectual Property Rights Indemnification
Buyer agrees to indemnify Seller and its officers, agents, owners, customers and users of its products and to hold them harmless from and against all claims, costs, liability, loss, causes of action, damage and expense, including attorneys’ fees, consultants’ fees and court costs arising from or by reason of any actual or claimed trademark, patent, copyright or intellectual property infringement or any litigation based thereon with respect to all or any apart of the sale or use of the products delivered under this Order. Buyer agrees to defend at its own expense any suits against Seller and to absorb the entire cost thereof including any judgment rendered therein and such obligations shall survive acceptance of the goods delivered hereunder and payment therefore by Buyer. SELLER DISCLAIMS ALL LIABILITY FOR PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET AND ANY OTHER INTELLECTUAL PROPERTY INFRINGEMENT.
15. Blanket Purchase Orders
If the goods to be sold under this Order are to be delivered pursuant to a blanket purchase order, then Seller is hereby authorized to procure raw materials sufficient to meet delivery of the entire quantity of the blanket purchase order and if Seller so desires, to manufacture all or any part of the entire quantity of the blanket purchase order before Buyer issues specific releases therefore, Buyer is liable for purchasing the entire quantity of goods ordered hereunder.
This Order cannot be modified or terminated orally and no modification or termination or any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by an officer of the party against whom such modification, termination or waiver is sought to be enforced.
No delay or failure by Seller in exercising any rights under this Order and no partial exercise thereof will constitute a waiver of Seller’s rights hereunder.
Invoices shall be paid pursuant to Seller’s payment policy. Discount terms shall begin at the date of receipt of the invoice or the receipt of the material, whichever is earlier. Stenographic and clerical errors are subject to correction.
19. Governing Law /Jurisdiction
This Order shall be governed by and construed according to the laws of the State of Illinois and jurisdiction for any and all claims arising out of or relating to this Order shall reside in Illinois and Buyer consents to jurisdiction in the courts of Illinois and expressly waives any objection thereto.