1. Applicability
A. These 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 Phoenix Corporation (“Phoenix”), to you, the customer (“Customer”) named in the accompanying quotation or proposal (the “Proposal”).
B. The Proposal, in conjunction with these Terms (collectively, the “Agreement”) comprise the entire agreement between Phoenix and Customer, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Proposal will not serve as an acceptance of any request for quotation that may have been issued by Customer; if any such request for quotation has been issued, the terms and conditions contained therein are hereby rejected. Any purchase order submitted by the Customer in response to the Proposal shall be considered an acceptance of this Proposal, on the terms contained set forth on the Proposal and stated herein. Any conflicting terms contained in such purchase order shall be, and are hereby, rejected; and any additional terms contained therein shall not alter or modify the terms set forth herein on the other side of this form, but shall be construed as proposals for additions to the contract between the parties.
C. The terms of the Proposal shall prevail to the extent they are inconsistent with these Terms. Fulfillment of Customer’s order, or the provision of Goods or Services, does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the terms of this Agreement.
2. Delivery of Goods and Performance of Services
A. The Goods will be delivered within a reasonable time after the receipt of Customer’s order or acceptance of the 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 Customer’s address identified in the Proposal (the “Delivery Point”), using Phoenix’s standard methods for packaging and shipping such Goods. Customer shall be responsible for all loading costs and provide Goods and labor reasonably suited for receipt of the Goods at the Delivery Point.
B. Phoenix may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of Customer’s order.
C. If for any reason Customer 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 Customer has not provided appropriate instructions, documents, licenses or authorizations, then (i) the Goods shall be deemed to have been delivered and (ii) Phoenix, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
D. Phoenix shall use reasonable efforts to meet any performance dates to render the Services specified in the Proposal, and any such dates shall be estimates only.
E. Customer further acknowledges that certain Goods to be sold and provided to Customer (e.g. any belt or spiral components) will be unique to Customer and must be specially manufactured for Customer’s unique needs. As such, Customer acknowledges that circumstances beyond Phoenix’s control may affect the delivery date of such specially manufactured Goods. Therefore, provided that Phoenix timely places orders with its vendors for the specially manufactured Goods detailed in its Proposal, and thereafter uses commercially reasonable efforts to secure timely delivery of the same, Phoenix shall not be responsible for any delay in the delivery of such specially manufactured Goods. Should the specially manufactured Goods not be delivered in full within two (2) weeks of the proposed delivery date, Customer may terminate its order immediately by providing written notice to Phoenix. If such termination is provided to Phoenix subsequent to the time that the specially manufactured Goods is in process of being manufactured by Phoenix’s vendor, such that Phoenix’s vendor is unable to cancel the manufacture of said specially manufactured Goods without charge or cost to Phoenix, then Customer shall pay Phoenix the cost of such specially manufactured Goods upon delivery of the same to Customer (regardless of the ultimate delivery date).
F. With respect to the Services, Customer shall (i) cooperate with Phoenix in all matters relating to the Services and provide such access to Customer’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.
3. Non-Delivery
A. The quantity of Goods as recorded by Phoenix on dispatch from Phoenix’s facility or place of business is conclusive evidence of the quantity received by Customer on delivery, unless Customer can provide conclusive evidence proving the contrary.
B. Phoenix shall not be liable for any non-delivery of Goods (even if caused by Phoenix’s negligence) unless Customer 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.
C. Any liability of Phoenix for non-delivery of the Goods shall be limited to delivering or procuring replacement delivery of the Goods within a reasonable time or, in the sole discretion of Phoenix, adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
D. Customer acknowledges and agrees that the remedies set forth in Section 3 are Customer’s exclusive remedies for the non-delivery of Goods. Except as provided in the Agreement, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return to Phoenix Goods purchased under this Agreement, without first receiving from Phoenix written authorization to make such return.
4. Quantity.
If Phoenix delivers to Customer a quantity of Goods of not more than 2% more or less than the quantity set forth in the Proposal, Customer shall not be entitled to object to or reject the Goods or any portion of the same by reason of the surplus or shortfall, and Customer shall pay for such quantity of Goods at the price set forth in the Proposal, adjusted pro rata.
5. Shipping Terms
Delivery of the Goods shall be made FOB Phoenix’s place of business in Twinsburg, Ohio (the “Delivery Point”).
6. Title and Risk of Loss
Title and risk of loss passes to Customer upon Phoenix’s tender of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Phoenix a lien on and security interest in and to all of the right, title and interest of Customer 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 held, warehoused, installed, or otherwise placed.
7. Customer’s Acts or Omissions
If Phoenix’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer 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 Customer, in each case, to the extent arising directly or indirectly from such prevention or delay
8. Inspection and Rejection of Nonconforming Goods
A. Customer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods so delivered unless Customer notifies Phoenix in writing during the Inspection Period of any nonconforming goods and furnishes such written evidence or other documentation as reasonably required by Phoenix. “Nonconforming Goods” is limited to the following: Goods delivered to Customer that to not substantially meet or match the specifications provided by Customer in its order.
B. If Customer 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 Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Phoenix’s facility located at Phoenix’s address identified in the Proposal. If Phoenix exercises its option to replace Nonconforming Goods, Phoenix shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point.
C. Customer acknowledges and agrees that the remedies set forth in Section 8(B) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in the Agreement, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Phoenix.
D. In all cases, whether for warranty claims, claims of defect, non-conforming goods, or otherwise, no credit be allowed for unauthorized return of any Goods. Goods may be returned at the customer’s request only upon the approval of Phoenix, and subject to the terms provided by Phoenix.
9. Price
A. Customer shall pay the price(s) for the Goods and Services (the “Price(s)”) set forth in Phoenix’s Proposal, unless other prices are agreed to by Customer and Phoenix in writing.
B. Customer agrees to reimburse Phoenix for all reasonable travel and out-of-pocket expenses incurred by Phoenix in connection with the performance of the Services.
C. 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 Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer 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.
D. Customer acknowledges that the pricing for Services contained in the Proposal reflects Services rendered on dates that are not state or federal holidays; and that Services rendered on any such state or federal holiday, or on days immediately prior to or after a state or federal holiday or exclusively on weekends, are subject to being priced at a premium (“Holiday Pricing”). Phoenix reserves the right, in its sole and exclusive discretion, to charge Holiday Pricing (which will be in excess of the stated pricing) to Customer should Customer require delivery of the Services on a state or federal holiday, or on days immediately prior to or after a state or federal holiday or exclusively on weekends. In addition, any change in in the delivery of the Goods or scope of the Services, as requested by Customer after an order is placed may also cause an increase in the price set forth in the Proposal. Phoenix reserves the right to adjust to Holiday Pricing as may be necessary to cover its costs and expenses resulting from such change. Finally, Phoenix cannot guarantee the price set forth in the Proposal until the date or dates for delivery of Goods and/or Services is confirmed by Phoenix and Customer.
10. Payment Terms.
A. Unless the Proposal specifies a longer or shorter payment terms, Customer shall pay all invoiced amounts due to Phoenix within fifteen (15) days from the date of Phoenix’s invoice. Customer shall make all payments hereunder by an accepted method set forth on Phoenix’s invoice and in US dollars.
B. By submitting an order or taking receipt of the Goods or Services, Customer agrees to 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. Customer 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 Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
C. Customer 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.
11. Limited Warranty
A. Phoenix warrants to Customer that for a period of ninety (90) days from the date of delivery of the Goods (“Warranty Period”), such Goods will materially conform to Phoenix’s published specifications (if any) and will be free from defects in material and workmanship. Phoenix shall have no liability to Customer, or to any third party, for any damage or defect to the extent caused by: (i) misuse, neglect, improper repairs or alterations, or accident by Customer with regards to the Goods or Services; 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 Customer. Any and all determination as to whether Goods are defective shall be in Phoenix’s sole and exclusive discretion.
B. Phoenix warrants to Customer 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.
C. 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 (1) WARRANTY OF MERCHANTABILITY; (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (3) WARRANTY OF TITLE; OR (4) 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.
D. Phoenix makes and provides no warranties for products manufactured by a third party (“Third Party Product”), which may be incorporated with, be contained in or be attached to or packaged together with the Goods or otherwise. For the avoidance of doubt, PHOENIX MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (1) WARRANTY OF MERCHANTABILITY; (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (3) WARRANTY OF TITLE; OR (4) 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. Phoenix will, to the extent permissible, pass along to Customer any warranties that are issued or provided by the manufacturer of any Third Party Product.
E. Phoenix shall not be liable for a breach of the warranties set forth in Section 11(A) and Section 11(B) unless: (i) Customer 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 Customer discovers or ought to have discovered the defect (but in no event later than ninety [90] days after delivery of the Goods or Services); (ii) Phoenix is provided a reasonable opportunity after receiving such notice to examine such Goods and Customer returns such Goods to Phoenix’s place of business (at Customer’s cost) for the examination to take place there (with any examination of allegations of defective Services to be the location where such Services are provided by Phoenix); and (iii) Phoenix reasonably verifies Customer’s claim that the Goods or Services are defective. If Phoenix determines that Goods are defective, Phoenix shall reimburse Customer for the cost of delivery of the same to Phoenix’s office for examination.
F. Phoenix shall not be liable for a breach of the warranty set forth in Section 11(A) and Section 11(B) if: (i) Customer makes any further use of such Goods after giving such notice; (ii) the defect arises because Customer failed to follow Phoenix’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Customer alters or repairs such Goods without the prior written consent of Phoenix.
G. 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, Customer shall, at Phoenix’s expense, return such Goods to Phoenix.
H. 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.
I. THE REMEDIES SET FORTH IN SECTION 11(G) AND (H) SHALL BE THE CUSTOMER’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. NO EMPLOYEE OR REPRESENTATIVE OF PHOENIX, OTHER THAN THE PRESIDENT OF PHOENX IS, IS AUTHORIZED TO CHANGE THE FOREGOING WARRANTIES IN ANY WAY OR GRANT ANY OTHER WARRANTY ON BEHALF OF PHOENIX. ANY SUCH CHANGE OR OTHER WARRANTY MUST BE IN WRITING, SIGNED BY THE PRESIDENT.
12. Limitation of Liability
A. IN NO EVENT SHALL PHOENIX BE LIABLE TO CUSTOMER 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.
B. 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.
C. 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.
13. Insurance
During the term of this Agreement, and in connection with the any Services that Phoenix is required to provide at Customer’s location, Customer 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, Customer shall provide Phoenix with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide Phoenix with fifteen (15) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Phoenix’s insurers and Phoenix.
14. Compliance with Laws
Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
15. Termination
In addition to any remedies that may be provided hereunder, Phoenix may terminate this Agreement with immediate effect (having no further obligation to Customer, whether to deliver Goods or Services, or otherwise) upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer’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 in bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
16. 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.
17. 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 Customer, 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, Customer 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 Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
18. 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 Customer 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 Customer 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 Customer to make reasonable use of the Deliverables and the Services.
19. Goods Safety
If the Services consist of the repair and/or maintenance of any Goods, prior to Phoenix performing such Services, Customer shall be required, at Customer’s cost, to 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.
20. Force Majeure
Phoenix shall not be liable or responsible to Customer, 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, product shortages, 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.
20. Assignment
Customer shall not assign any of its rights or delegate any of its obligations hereunder, or to any order submitted by Customer, 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 Customer of any of its obligations under this Agreement.
21. Governing Law and Jurisdiction
All matters arising out of or relating to this Agreement, or any order submitted by Customer, are governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule. Subject to the provisions of Section 23 below, any legal 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 those courts located in Summit County Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
22. 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 Proposal or to such other address that may be designated by the parties.
23. Amendment and Modification
Phoenix may, at any time and from time to time, amend or modify these Terms by posting such amendment or modification to its website at https://www.phoenixcorporation.com/terms. Any order submitted by Customer shall be subject to the Terms, then in effect, as may be posted at the above website as of the date of such order.
