All sales of products by Phoenix Specialty Mfg. Co. (“Seller“) are made on the following terms and conditions. In these Terms of Sale, any products sold by Seller to the buyer named in Seller’s quotation or acknowledgment (“Buyer”) is referred to below as “goods.”
1. Agreement. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods shall constitute Buyer’s agreement to these Terms. Seller objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with those herein shall be considered inapplicable and shall have no force or effect.
2. Payment Terms. Unless otherwise specified in Seller’s quotation or acknowledgment, payment terms are 1% 10 days, net 30 days after shipment of goods, except that if at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. Payment must be made at Seller’s office in Bamberg, South Carolina. Seller has the right to increase its prices at any time upon notice to Buyer that reflect any significant increase or unforeseen increase in Seller’s costs, including but not limited to, an increase in the cost of material. Phoenix Price – During the twelve (12) months following the date of the Seller’s quotation, reorders for the same item and parameters will be Price-Locked Guaranteed, except that Seller has the right to increase its prices at any time upon notice to Buyer that reflect any significant increase or unforeseen increase in Seller’s costs, including but not limited to, material market and outside services fluctuations greater than +/- 10% as well as the right to correct clerical errors. Seller shall not be responsible for, and Buyer may not back-charge Seller for, sorting or inspection fees, excess freight charges or allegedly defective goods without Seller’s prior written authorization.
3. Delivery and Risk of Loss. Unless Seller agrees otherwise in writing on the Seller’s Order Acknowledgment, Seller shall deliver the goods F.O.B. Seller’s facility in Bamberg, South Carolina; however, in any case, risk of loss or damage to the goods shall pass to Buyer upon identification of the goods to the contract between Buyer and Seller. Whenever Seller agrees to ship the goods to a location other than Buyer’s facility, Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the goods, unless otherwise stated in the quotation or acknowledgment, and Buyer shall be responsible for the costs of the same. Seller may ship all the goods at one time or in portions from time to time. Upon the Seller notifying the Buyer that Seller is unable to meet the ship date as noted (on or before the agreed upon date) on the Sellers Order Acknowledgment, the Buyer is eligible for free overnight shipping (within the continental US up to a maximum of 50 pounds) if the Buyer has an immediate need impacting his operation; otherwise standard shipping practices will apply on all orders.
4. Blanket Purchasing Agreement. If the agreement between the Seller and Buyer is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the goods, then, except to the extent that Seller otherwise expressly agrees in writing, (1) when Buyer issues a release for any of the goods, Seller shall be permitted to ship all of those goods within 30 days after Seller receives the release, notwithstanding any contrary provision in the release and (2) Buyer shall be obligated to release the entire quantity of goods provided for in the agreement within 365 days after the date on which the agreement is formed.
5. Taxes. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer shall be liable for all such taxes, whether or not Seller invoices Buyer for them.
6. Unavoidable Delay. If Seller is not able to finish and deliver the goods to Buyer on time because of anything Seller cannot control (such as casualty, labor trouble, accidents, unavailability of supplies or transportation, or Buyer’s failure to approve production samples), then the estimated delivery or performance time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages caused by the delay.
7. Changes. Seller shall have the right to make design or engineering changes in its equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, make any changes in operational or dimensional specifications that Buyer submits. Stenographical and clerical errors in quotations are subject to correction.
8. Defects; Remedies. Buyer agrees to inspect the goods immediately upon receipt of such goods from Seller. If, prior to use, installation or alteration by Buyer, any item of goods not subject to abuse or misuse proves to be defective (as defined below) within 30 days following the date of shipment, and if Buyer gives written notice to Seller of such defect within that period and does not use, install or alter the goods, then Seller shall, at Seller’s option, either rework or replace the defective item, at Seller’s expense. Notice of a breach of Seller’s warranty must be made in writing addressed to Seller, setting forth sufficient detail to permit identification by Seller of the claimed defect. Samples should accompany such notification. If Buyer uses, installs or alters the goods or fails to notify Seller within the 30 day period following shipment of the goods, any claim for breach of warranty shall be conclusively deemed to have been waived by Buyer with respect to the alleged defect. In the event of a defect in any goods constituting a breach of the warranty provided herein, Seller shall furnish instructions for the disposition of the defective goods. Seller shall have the option of requiring the return of the defective goods, transportation prepaid, and proof that the goods were not used, installed or altered or subject to misuse or abuse to establish the claim. No goods shall be returned to Seller without its prior consent. The acceptance of any goods returned to Seller shall not be deemed an admission that the goods are defective or in breach of any warranty, and if Seller determines that the goods are not defective they may be returned to Buyer at Buyer’s expense. If Seller fails to rework or replace any defective item within a reasonable time, then Seller shall be liable to Buyer for the lesser of (i) the reasonable costs of rework or replacement by a third party, or (ii) that part of the purchase price of the defective goods that shall have been paid by Buyer, but Buyer shall not obtain rework or replacement by a third party without giving Seller at least fifteen (15) days prior written notice, during which time Seller may rework or replace the defective item. An item shall be considered “defective” if it is found by Seller to have been defective in materials or workmanship and if the defect materially impairs the value of the goods to Buyer, except that the goods shall not be defective to the extent that (i) they conform with drawings of or specifications for or a sample of goods that have been approved by Buyer, (ii) they conform with goods, testing results, dimensional layouts or manufacturing methods that have been submitted and approved in connection with the production part approval process (PPAP) or (iii) they are damaged due to the method or length of storage. If Buyer’s representative agrees, either orally or in writing, to a change in or waiver of the specifications for any item of goods, then such goods shall not be considered defective to the extent they conform to the specifications as so changed or waived. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the goods. Neither Buyer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to the goods. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of Seller.
9. Limitations. EXCEPT AS STATED IN PARAGRAPH 8, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. Seller shall not have any tort liability to Buyer with respect to any of the goods and shall not be liable for consequential, incidental, special, exemplary, indirect or punitive damages arising from any product defect, delay, non-delivery, recall or other breach. Buyer shall not have any right of rejection or of revocation of acceptance of the goods.
10. Solvency and Security Interest. Buyer represents that Buyer is solvent. Seller retains a security interest in the goods to secure payment of the price and all other indebtedness that Buyer now and in the future owes to Seller.
11. Permits and Compliance. Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the goods. Seller does not make any promise or representation that the goods will conform to any law, ordinance, regulation, code or standard.
12. Components of another Product. If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (1) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product, (2) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (3) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
13. Resale. On any resale of the goods, Buyer shall contractually limit its buyer’s rights and remedies against both Buyer and Seller to the same extent that Paragraphs 7 and 8 above limit Buyer’s rights and remedies.
14. Quantities. Seller may overrun or under run the agreed-upon quantities by up to 5% and Buyer shall pay Seller at the unit price for the quantities that Seller delivers within these limits. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods (subject to any adjustment under the preceding sentence) must be submitted to Seller in writing within 10 days after Buyer receives the goods. If Buyer failed to do so, then it shall be conclusively presumed that the proper quantity was delivered.
15. Confidentiality. Buyer shall not disclose or use any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the goods.
16. Cancellation. (a) Buyer does not have any right to cancel its agreement to buy the goods from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for (1) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (2) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Seller saved by reason of the cancellation. (b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller, then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
17. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms of Sale or any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of the goods to Buyer’s specifications.
18. Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
19. Time for Bringing Action. Any action that Buyer brings against Seller for breach of this Agreement or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery must be brought within one year after the cause of action accrues.
20. Applicable Law. This agreement between Seller and Buyer shall be considered to have been made in the State of South Carolina, and it shall be governed by and interpreted according to South Carolina law. Either party may bring any action that arises out of or relates to this agreement in any federal or state court in Bamberg County, South Carolina, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
21. Complete Agreement; Amendment. The terms on the face of Seller’s quotation and acknowledgment and these standard Terms of Sale contain the entire agreement between Buyer and Seller. Any change in this agreement must be by a signed writing.