Terms & Conditions | Phoenixcorporation

Phoenix Corporation

GENERAL TERMS AND CONDITIONS OF SALE

Applicability.
1. These general terms and conditions of sale (these “Terms”) govern the sale of the goods (“Goods”) and services, including but not limited to, design, installation, maintenance, and repair (“Services”) by Stellar Corporation, Inc., an Ohio corporation d.b.a. Phoenix Corporation (“Phoenix”), to the buyer (“Buyer”) named in the accompanying quotation, proposal, purchase order, or invoice (each and collectively, a “Sales Confirmation”).
2. The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The terms of the Sales Confirmation shall prevail to the extent they are inconsistent with these Terms. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the terms of this Agreement.
Delivery of Goods and Performance of Services.
1. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order or acceptance of Phoenix’s proposal. Phoenix shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Phoenix shall deliver the Goods to Buyer’s address identified in the Sales Confirmation (the “Delivery Point”) using Phoenix’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
2. Phoenix may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Phoenix’s notice that the Goods have been tendered or delivered at the Delivery Point, or if Phoenix is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Phoenix, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4. Phoenix shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
5. With respect to the Services, Buyer shall (i) cooperate with Phoenix in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Phoenix, for the purposes of performing the Services; (ii) respond promptly to any Phoenix request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Phoenix to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Phoenix may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Non-Delivery.
1. The quantity of any installment of Goods as recorded by Phoenix on dispatch from Phoenix’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
2. Phoenix shall not be liable for any non-delivery of Goods (even if caused by Phoenix’s negligence) unless Buyer gives written notice to Phoenix of the non-delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received.
3. Any liability of Phoenix for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for the non-delivery of Goods. Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Phoenix.
Quantity. If Phoenix delivers to Buyer a quantity of Goods of not more than 2% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Sales Confirmation, adjusted pro rata.
Shipping Terms. Delivery of the Goods shall be made FOB Seller’s place of business in Twinsburg, Ohio (the “Delivery Point”).
Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Phoenix a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the State where the Goods are warehoused, installed, or otherwise placed.
Buyer’s Acts or Omissions. If Phoenix’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Phoenix shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Inspection and Rejection of Nonconforming Goods.
1. Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Phoenix in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Phoenix. “Nonconforming Goods” means only the following: product shipped is different than identified in Buyer’s Sales Confirmation.
2. If Buyer timely notifies Phoenix of any Nonconforming Goods, Phoenix shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Phoenix’s facility located at Phoenix’s address identified in the Sales Confirmation. If Phoenix exercises its option to replace Nonconforming Goods, Phoenix shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
3. Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Phoenix.
Price.
1. Buyer shall purchase the Goods and Services from Phoenix at the price(s) (the “Price(s)”) set forth in the Sales Confirmation.
2. Buyer agrees to reimburse Phoenix for all reasonable travel and out-of-pocket expenses incurred by Phoenix in connection with the performance of the Services.
3. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Phoenix’s income, revenues, gross receipts, personal or real property, or other assets.
Payment Terms.
1. Unless the Sales Confirmation specifies a longer or shorter payment terms, Buyer shall pay all invoiced amounts due to Phoenix within fifteen (15) days from the date of Phoenix’s invoice. Buyer shall make all payments hereunder by an accepted method set forth on Phoenix’s invoice and in US dollars.
2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Phoenix for all costs incurred in collecting any late payments, including, without limitation, all costs and reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Phoenix does not waive by the exercise of any rights hereunder), Phoenix shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Phoenix, whether relating to Phoenix’s breach, bankruptcy or otherwise.
Limited Warranty.
1. Phoenix warrants to Buyer that for a period of ninety (90) days from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Phoenix’s published specifications (if any) in effect as of the date of shipment and will be free from material defects in material and workmanship. This Limited Warranty excludes remedy, and Phoenix shall have no liability to Buyer, for damage or defect to the extent caused by: (i) misuse, neglect, improper repairs or alterations, or accident by Buyer; or (ii) maintenance, operation, or other use of the Goods or any component thereof in any manner not in compliance with the operation or maintenance manual(s) delivered by Phoenix to Buyer.
2. Phoenix warrants to Buyer that it shall perform the Services using qualified personnel and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
3. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11(A) AND (B), PHOENIX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.
4. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, PHOENIX MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.
5. Phoenix shall not be liable for a breach of the warranties set forth in Section 11(a) and Section 11(b) unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Phoenix within fifteen (15) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Phoenix is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Goods and Buyer (if requested to do so by Phoenix) returns such Goods to Phoenix’s place of business at Phoenix’s cost for the examination to take place there; and (iii) Phoenix reasonably verifies Buyer’s claim that the Goods or Services are defective.
6. Phoenix shall not be liable for a breach of the warranty set forth in Section 11(a) and Section 11(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Phoenix’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Phoenix.
7. Subject to Section 11(e) and Section 11(f) above, with respect to any such Goods during the Warranty Period, Phoenix shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part thereof) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Phoenix so requests, Buyer shall, at Phoenix’s expense, return such Goods to Phoenix.
8. Subject to Section 11(e) and Section 11(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 11(b), Phoenix shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
9. THE REMEDIES SET FORTH IN SECTION 11(G) AND (H) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND PHOENIX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 11(A) AND (B), RESPECTIVELY.
Limitation of Liability.
1. IN NO EVENT SHALL PHOENIX BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PHOENIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL PHOENIX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PHOENIX FOR THE GOODS AND SERVICES SOLD HEREUNDER.
3. The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from Phoenix’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Phoenix’s acts or omissions.
Insurance. During the term of this Agreement, and in connection with the any Services that Phoenix is required to provide at Buyer’s location, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including injury and product liability coverage) in a sum no less than $1,000,000.00 per occurrence with financially sound and reputable insurers. Upon Phoenix’s request, Buyer shall provide Phoenix with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Phoenix with fifteen (15) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Phoenix’s insurers and Phoenix.
Compliance with Laws. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Termination. In addition to any remedies that may be provided under these Terms, Phoenix may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Waiver. No waiver by Phoenix of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Phoenix. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information. All non-public, confidential or proprietary information of Phoenix, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Phoenix to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Phoenix in writing. Upon Phoenix’s request, Buyer shall promptly return all documents and other materials received from Phoenix. Phoenix shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Phoenix in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Phoenix. Phoenix hereby grants Buyer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the Deliverables and the Services.
Equipment Safety. If the Services consist of the repair and/or maintenance of any equipment, prior to Phoenix performing such Services, Buyer shall ensure that all safety devices and controls are in the proper location and in operating order and in compliance with all applicable laws, regulations, and ordinances.
Force Majeure. Phoenix shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Phoenix including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental orders or actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic (including, but not limited to COVID-19), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Phoenix. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
Submission to Jurisdiction. Subject to the provisions of Section 26 below, any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in County of Summit or County of Cuyahoga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Alternative Dispute Resolution.
1. If at any time there is a claim or dispute between the parties arising from or relating to this Agreement and performance hereunder, non-breaching party shall give written notice to the breaching party, after which the breaching party will have ten (10) days to cure said breach.
2. If the alleged breach is not cured puruant to Section 26(A), the non-breaching party will notify the breaching party of same, after which the parties agree that they will, within ten (10) days following receipt of said written notice, engage in face-to-face negotiations in an attempt to resolve the dispute and shall, upon failing to negotiate a resolution within ten (10) DAYS after the initial face-to-face meeting, either party may submit such dispute to arbitration to be finally determined by the arbitration procedures set forth below.
3. Subject to the requirements set forth in Sections 26(A)-(B), each party agrees to submit any and all disputes arising from or relating to this Agreement, including without limitation its interpretation, enforcement and performance, if not resolved between the parties through their best efforts, to the American Arbitration Association (“AAA”) for binding arbitration, in accordance with its Commercial Rules of dispute resolution which are available here: https://adr.org/rules. The forum for the arbitration shall be Cleveland, Ohio. The arbitrator shall be empowered to determine the arbitrability of the dispute. The arbitrator is not empowered to award damages in excess of compensatory damages as set forth in this Agreement. Both parties shall equally share the fees of the arbitrator.
4. ARBITRATION SHALL PROCEED ONLY ON AN INDIVIDUAL BASIS. THE PARTIES WAIVE ALL RIGHTS TO HAVE THEIR DISPUTES HEARD OR DECIDED BY A JURY OR IN A COURT TRIAL AND THE RIGHT TO PURSUE ANY CLASS OR COLLECTIVE CLAIMS AGAINST EACH OTHER, ARISING FROM THIS AGREEMENT, IN COURT, ARBITRATION, OR ANY OTHER ACTION OR PROCEEDING. Each party shall only submit their own individual claims against the other and will not seek to represent the interests of any other person. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other party to an arbitration between the Parties. The arbitrator, not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of any dispute between the Parties, except for any dispute relating to the enforceability or scope of the class and collective action waiver, which shall be determined by a court of competent jurisdiction.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Intellectual Property, Governing Law, Submission to Jurisdiction and Survival.
Amendment and Modification. Phoenix may, at any time and from time to time, amend or modify these Terms by posting such amendment or modification on its website at https://www.phoenixcorporation.com/terms and notifying the Buyer. Buyer’s orders of Goods or Services after such notification of changes to the Terms CONSTITUTES ACCEPTANCE OF THE CHANGES. These Terms may also be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.