Terms and Conditions of Sale

 

These terms and conditions of sale are the only terms that govern the sale of the Phoenix MICRON imaging platform (“Product”), other goods, and/or repair services set forth on the Sales Order to which these terms are incorporated by reference (together, this “SO”). As used herein, “Phoenix” means Phoenix-Micron, Inc. and “Buyer” means the Buyer listed on this SO. Buyer’s acceptance of this SO is evidenced by its issuance of a Purchase Order in response to a Phoenix quotation (each, a “Buyer PO”), which is confirmed by this SO, or payment of any fees due hereunder, whichever occurs sooner. Buyer’s acceptance is limited to the terms and conditions of this SO. Unless separately agreed in writing this SO constitutes the entire agreement of the parties with respect to the subject matter hereof and cancels and supersedes all prior communications, understandings and agreements. All amendments or changes of any kind must be in writing, executed by both parties.

PAYMENT TERMS: Buyer shall make all payments as set forth in the payment terms on this SO. Unless explicitly stated otherwise, all prices are in U.S. dollars. All prices for goods are exclusive of, and Buyer is responsible for, all sales, value added, use and like taxes and any applicable customs duties, import licenses, excise fees or tariffs, except for those sales taxes that Phoenix is obligated to collect and remit the appropriate taxing authority. Buyer must provide Phoenix a valid certificate of tax exemption from the appropriate taxing authority if Buyer is exempt from paying sales tax. Payments not received in a timely manner shall be subject to interest at a rate of the lesser of the maximum allowed by law and 1.5% per month. Buyer is responsible for all payment collection costs incurred by Phoenix, including attorneys’ fees.

DELIVERY: Unless otherwise expressly stated in this SO,

1. all shipments of goods to the United States and Canada shall be delivered FOB Phoenix’s factory, and title and liability for loss or damage thereto shall pass to Buyer upon Phoenix’s delivery of the goods to a carrier for shipment to Buyer;
2. all shipments of goods to destinations outside the United States and Canada shall be in accordance with the Incoterm stated in this SO, provided, that Buyer is responsible for all costs, tariffs, taxes, fees, and duties that may apply;
3. any loss or damage after title has passed to the Buyer shall not relieve Buyer from any obligation hereunder;
4. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred, as well as any licenses or clearance required at port of entry and destination;
5. Phoenix may deliver goods in installments. Unless agreed otherwise, quoted lead times and ship dates are approximate only. Phoenix shall not be liable for any loss or expense, whether by way of contract or tort, consequential or otherwise, incurred by Buyer if Phoenix fails to meet the specified estimated delivery schedule; and
6. Phoenix shall ship exclusively to the shipment address stated on the applicable Buyer PO. Should Buyer wish to change the ship-to address after the Buyer PO is accepted, Buyer must notify Phoenix in writing of the updated address.

CONTINGENCIES: Phoenix shall not be liable for any delay in delivery, repair or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Phoenix or its suppliers, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Phoenix has exercised ordinary care in the prevention thereof. Phoenix may allocate production and deliveries among Phoenix’s Buyers.

REPAIR SERVICES: In consideration of Buyer’s payment to Phoenix of the applicable fees outlined in this SO, Phoenix will provide the repair services expressly described in this SO to repair Product that is not covered by a Product Warranty or a Service Contract (“Repair Services”). Upon completion of the Repair Services and Phoenix quality assurance checks the Repair Services are complete. Upon receipt of the repaired Product, if issues are found, Buyer may open a support ticket for resolution.

If Repair Services are purchased under this SO, Buyer and Phoenix agree that Phoenix is an independent contractor and that no partnership or joint venture shall be deemed to exist between them. This SO does not constitute authority for Phoenix to act for Buyer as its agent or make commitments for Buyer.

LIMITED WARRANTY:

1. Phoenix warrants the new Product purchased pursuant to this SO to be free from defects in materials and workmanship for one year from date of the Product is shipped from the Phoenix facility, or two or three years from date of shipment if Buyer has purchased a valid and authorized extended warranty with a one or two-year additional term (“Product Warranty”).
2. Phoenix warrants replacement parts delivered as part of Repair Services or Product Warranty to be free from defects in materials and workmanship for ninety (90) days from date of shipment or date of the service, whichever is applicable (“Parts Warranty”).
3. Buyer may purchase extended service (“Service Contract”) to further extend the warranty coverage of Product. The service level commitment options for a Service Contract are detailed in Exhibit A (“Service Level Agreement”) to these terms and conditions, and the selected Service Contract option will be as specified on the associated SO.
4. Parts Warranty together with the Product Warranty and Service Contract comprise the “Limited Warranty”

   Provided that the Product is within the Limited Warranty period, Phoenix will repair or replace such Product or part thereof which, upon inspection by Phoenix, is found to be defective in materials or workmanship. Unless a purchased Service Contract provides for onsite repair as a condition to the obligation of Phoenix to repair or replace such Product, the Product or its components must be returned to Phoenix together with proof-of-purchase satisfactory to Phoenix prior to delivery of Repair Services.

   For repairs under this Limited Warranty, Buyer shall be responsible for transportation and insurance costs to the Phoenix factory in the U.S. as described the applicable Service Level Agreement (SLA). Phoenix shall use reasonable efforts to repair or replace any part covered by this Limited Warranty in the timeframe described the applicable Service Level Agreement provided the warranty nonconformance can be reproduced at the factory. In the event repair or replacement requires longer than described in the applicable SLA, Phoenix shall notify the Buyer accordingly. Phoenix reserves the right to replace any Product or component thereof that has been discontinued from its product line during the Limited Warranty period with a new product or component of comparable value and function.  Phoenix is responsible for all return to Buyer shipping costs on valid warranty repairs (FOB Origin for shipments to the U.S. and Canada and DAP for shipments outside the U.S. and Canada).

   Exclusions: This Limited Warranty shall be void and of no force of effect in the event a covered Product has been: (i) modified in design or function, (ii) subjected to abuse, (iii) used not in accordance with all applicable documentation, (iv) mishandled in any way, or (v) repaired by an unauthorized party. Further, this Limited Warranty does not cover normal wear and tear or deterioration and excludes loss or damage to the Product that results from acts of God or acts of force majeure.

   Limited Warranty Returns: For repair services required under the Limited Warranty, Buyer may be instructed to return the Products to Phoenix. The proper Return Merchandise Authorization (“RMA”) number must be obtained from Phoenix in advance of return of any Product. Contact your authorized Phoenix distributor or contact Phoenix at micronhelp@phoenixmicron.com or +1-541-668-7539 to receive the RMA number and detailed return instructions. All returns for warranty repair must be accompanied by a written statement setting forth the name, address, and daytime telephone number of the owner, together with a brief description of any claimed defects. Returned parts or Products that are replaced by Phoenix under the Limited Warranty shall become the property of Phoenix.

   Phoenix reserves the right to modify or discontinue, without prior notice, any model or style Phoenix Product.

   DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL GOODS AND SERVICES ARE “AS IS” AND PHOENIX DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR USE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. THE SOLE OBLIGATION OF PHOENIX UNDER THIS LIMITED WARRANTY SHALL BE TO REPAIR OR REPLACE THE COVERED PRODUCT IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN. ANY WARRANTIES WHICH ARE IMPLIED AND WHICH CANNOT BE DISCLAIMED SHALL BE LIMITED IN DURATION TO A TERM OF ONE YEAR FROM THE DATE OF ORIGINAL RETAIL PURCHASE. THESE LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

   LIMITATION OF LIABILITY: IN NO EVENT WILL PHOENIX BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS SO, INCLUDING ANY PRODUCTS PROVIDED HEREUNDER OR ANY CONDUCT IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS SO, EVEN IF PHOENIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE.  IN NO EVENT WILL PHOENIX’S TOTAL CUMULATIVE LIABILITY RELATING TO THIS SO EXCEED THE TOTAL AMOUNT PAID BY BUYER TO PHOENIX FOR THE APPLICABLE GOODS OR SERVICES GIVING RISE TO THE LIABILITY. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, PHOENIX’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.