Phoenix Solar USA
Phoenix Solar Incorporated Standard Terms of Sale
These Terms of Sale by and between Phoenix Solar Incorporated (“Seller”) and the counterparty (“Buyer”) described in the invoice (“Invoice”) that accompanies these Terms of Sale (together, the “Agreement”) constitute the complete agreement between the parties for the sale of the products (“Goods”) and/or provision of services (“Services”) describe in the Invoice.
1. Acceptance of Order.
The Agreement becomes a binding contract between Buyer and Seller when Seller begins
performance. The terms of such binding contract consist only of the terms set forth in the Invoice, these Terms of Sale, and any other agreement identified in the Invoice, and constitute the entire agreement between the parties with respect to the transactions contemplated in the Invoice. No different, inconsistent, conflicting or additional terms or conditions proposed by Buyer in accepting or acknowledging the Invoice or attempting to vary the pre-printed form of these Terms of Sale shall be valid or binding upon Seller unless Seller expressly accepts such terms or conditions in writing.
2. Price.
The price stated in the Invoice excludes all taxes, duties, fees, charges, packaging, freight and expenses payable by Buyer unless otherwise stated on the Invoice.
3. Payment.
Buyer shall pay Invoices on the payment terms stated on the face of the Invoice, including any retentions, or within 20 days of Invoice date if no term is stated. If Buyer in good faith disputes any portion the price, it shall pay the undisputed portion when due. Buyer may not withhold or set-off any amount due on the Invoice in connection with any other transaction. Any amount that is not paid when due shall bear interest at the rate of 18 percent per annum from the Invoice date until the date payment is received.
4. Title; Risk of Loss; Acceptance.
Title and risk of loss to Goods will pass to Buyer upon delivery to shipper. Buyer shall inspect Goods and/or Services within one business day of delivery and will promptly notify Seller of nonconforming Goods or Services.
5. Shipping.
Goods will be shipped, F.O.B. origin, unless otherwise stated in the Invoice.
6. Warranties.
Seller warrants that the Goods will, upon delivery: (a) be free from liens and encumbrances, (b) conform to any specifications set forth in the Invoice, and (c) be new and of merchantable quality. Seller will pass through to Buyer any warranty provided by the manufacturer of Goods to the extent it is permitted to do so, but Seller makes no warranty as to the quality, fitness, merchantability or other condition of such Goods. Seller warrants that all Services will, upon completion of performance: (i) be performed in a timely, professional and workmanlike manner; (ii) comply with all applicable specifications and descriptions of such Services; and (iii) comply with all applicable laws and standards. Seller represents and warrants that all Goods and Services do not infringe upon any patent, trade secret, copyright, trademark, or any other intellectual or proprietary rights of any person. If Buyer notifies Seller during the period ending twelve (12) months after delivery of the Goods or Services that the Goods or Services do not conform to the warranties, Seller shall, at its sole expense, correct such nonconformity or refund all or an
equitable portion of the Invoice price to reflect the diminished value of such non-conforming Goods or Services. THE WARRANTIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
7. Related Property.
Seller retains ownership of all documents, drawings and other intellectual property (“Intellectual Property”) related to the Goods and Services, and upon full payment of the Invoice price, grants to Buyer a nonexclusive license to use, copy, modify and otherwise reproduce the Intellectual Property as necessary to use the Goods or Services.
8. Independent Contractor.
Neither party is an agent of the other, shall have any authority to assume or create any
obligation, express or implied, on behalf of the other party, nor the authority to represent itself as an agent or employee of the other party. Each party shall be responsible for the actions of its employees and subcontractors and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), workmen's compensation, disability benefits and the like to the extent applicable to the personnel involved.
9. Default and Termination.
Either party may terminate the Invoice for convenience any time before Seller begins performance. Thereafter, the Invoice may be terminated for cause.
10. Indemnification.
Each party shall, at its sole expense, defend, indemnify and hold harmless the other party, its affiliates, and their successors and assigns, against all damages, losses, costs, claims, liens, encumbrances, liabilities, and expenses (including attorney’s fees) to the extent caused
by any act or omission of the indemnifying party, its agents, employees, suppliers or subcontractors.
11. Limitation of Liabilities.
Neither party shall be liable for any lost profits or consequential, special, or incidental damages. This limitation shall apply notwithstanding any failure of essential purpose of any limited remedy. Each party’s cumulative liability to the other for any cause of action, under, related to or arising out of the Invoice is expressly limited to an amount equal to the purchase price.
12. Force Majeure.
If either Party is rendered wholly or partly unable to perform its obligations under this Agreement because of war, terrorism, fire, flood, strike, labor unrest, accident, riot, act of government authority, natural disaster, or acts of God or contingencies beyond its reasonable control, that party will be excused from whatever performance is affected by the force majeure event to the extent so affected; provided that, a force majeure event shall not excuse Buyer from paying for Goods and Services delivered to it.
13. Miscellaneous.
The provisions of the Invoice shall be binding upon and inure to the benefit of Buyer and Seller and their successors and permitted assigns. The provisions of the Agreement are severable and the invalidity or unenforceability, in whole or part, of any provision shall not
impair or affect the remainder of that provision or other provisions. The paragraph headings of the Agreement are for convenience only and shall not be deemed to affect in any way the language of the provision to which they refer. The Invoice shall be governed by the laws of California, without regard to its conflicts of law provisions. All covenants, indemnities, guaranties, and warranties shall survive the termination or expiration of the Agreement. Waiver of any breach of the terms and conditions contained herein will not be construed as a waiver of any other or continuing breach. The parties disclaim any applicability of the U.N. Convention of the International Sale of Goods.