Terms and Conditions
Standard Terms and Conditions for Acceptance of Purchase Orders
Last modified: June 15, 2015
These Standard Terms & Conditions for Acceptance of Purchase Orders (hereafter, “Standard Terms”) shall apply to all purchase orders or other Supply Arrangements (hereafter defined) submitted by any customer (“Buyer”) of PHYTEC America LLC (“PHYTEC”) regardless of the form or medium of Buyer’s purchase order. These Standard Terms shall govern all quotes, invoices, purchase orders and agreements (“Supply Arrangements”) between PHYTEC and Buyer, collectively referred to as “Parties”. Except as specifically stated otherwise herein, the term “Product” shall refer to both hardware and software delivered by PHYTEC to Buyer. If any of the provisions of a purchase order or other writing issued by Buyer are in addition to, ambiguous, or in conflict with the Standard Terms herein, those additional, conflicting or ambiguous provisions are expressly rejected and these Standard Terms shall supersede them and govern. In the event of a conflict among the Standard Terms herein and any other writings from PHYTEC, the following documents shall govern in descending order: a) written agreement between PHYTEC and Buyer, b) PHYTEC Quote, c) these Standard Terms, d) other documents issued by PHYTEC to Buyer.
2. Quotes and Purchase Orders
2.1 Quotes from PHYTEC are subject to change until they are issued in writing and are valid for thirty (30) days, unless withdrawn.
2.2 Quotes are not to be construed as an obligation to sell.
2.3 Purchase Orders issued by the Buyer to PHYTEC are legally binding only upon written confirmation or fulfillment by PHYTEC.
3. Pricing and Releases
3.1 Prices are denominated in U.S. dollars for all transactions made in North America. Prices are inclusive of packaging for shipping F.O.B point of shipment.
3.2 Applicable prices shall be those prices quoted by PHYTEC to Buyer and contained in Buyer’s purchase order accepted by PHYTEC. Pricing shall apply to the quantity indicated on the accepted purchase order. The price quoted shall apply only if the quantity ordered on the accepted purchase order is released and shipped within a period of time not to exceed twelve (12) months.
3.3 If significant fluctuations occur at any time in the cost of PHYTEC’s Product due to market increase in fuels, materials, raw materials, equipment, labor, political risk or other production costs, PHYTEC shall notify Buyer in writing. Within ten (10) days of the notification, the Parties will review the impact of such fluctuations and shall mutually agree to an adjustment to the Product price arising therefrom for Products whose costs are affected by such fluctuations and have not yet been manufactured or delivered.
4. Shipping and Transport Insurance
All Product shall be shipped F.O.B. point of shipment. Title in, the right of possession, and risk of loss to the Product passes to Buyer upon delivery of goods by PHYTEC to a carrier at point of shipment. Buyer shall be responsible to insure the Product at point of shipment.
5. Delivery and Acceptance
5.1 PHYTEC will use commercially reasonable efforts to deliver Product pursuant to a mutually agreeable delivery schedule; however, delivery dates are approximate and PHYTEC assumes no liability for delivery delays for any reason.
5.2 Buyer shall inspect the Product immediately after delivery and shall inform PHYTEC of any missing items and/or damage (“defects”) in writing within eight (8) calendar days of receiving Product. If Buyer fails to notify PHYTEC, then Buyer shall be deemed to have accepted the Product.
6. Payment Terms
6.1 All payments are denoted and shall be made in U.S. dollars. Payment terms are net thirty (30) days from the date of shipment. Interest shall accrue from the payment due date at 18% per annum.
6.2 Payments will be first applied to interest, then to costs and expenses for which PHYTEC is entitled to reimbursement, then to the sales price.
6.3 All taxes, bank, discount, or withdrawal charges are at the expense of the Buyer.
7. Security Interest
Buyer hereby grants to PHYTEC a security interest in any delivered Product until PHYTEC has received full payment from Buyer for the Product. Buyer agrees to cooperate with PHYTEC in perfecting and maintaining PHYTEC’s security interest, including the preparation, signing and filing of Uniform Commercial Code (“UCC”) financing statements or documents of a similar legal nature. PHYTEC may, at its option and without any further agreement or signature by Buyer, file evidence of such security interest in accordance with the provisions of the UCC.
8.1 Buyer may cancel orders for PHYTEC Product that is generally available, non-custom, stocked and other such standard product categories as defined by PHYTEC (collectively “Standard Product”), only if PHYTEC receives a written cancellation within two (2) business days of PHYTEC’s order confirmation to Buyer.
8.2 Buyer may cancel orders for non-standard, built-to-order, custom, semi-custom, unique to a customer and other such special product categories as defined by PHYTEC (collectively “Special Product”), only if PHYTEC receives a written cancellation notice not less than ninety (90) days prior to the Buyer’s scheduled delivery date. Buyer shall remain liable for all non-recoverable costs associated with cancellation incurred by PHYTEC, including all non-transferable and non-cancellable raw materials and work in process.
8.3 Buyer may not cancel Product designated as Non-Cancellable and Non-Returnable (“NCNR”).
8.4 PHYTEC may terminate any Supply Arrangement, including open or continuing purchase orders: (i) on reasonable ten (10) day notice to Buyer, for any or no reason, or (ii) immediately, if Buyer fails to timely pay for goods delivered or services rendered, breaches any of its other obligations under any Supply Arrangement, violates or refuses to abide by or acknowledge these Standard Terms, or threatens any of the foregoing. Termination in accordance with this clause shall not affect PHYTECs right to pursue any other available remedies.
Buyer may reschedule the shipment date only if written notice is provided to PHYTEC. For Standard Product, the notice must be provided no less than thirty (30) days prior to the current PHYTEC planned shipment date as of the date of the notice. For Special Product, the notice must be provided no less than ninety (90) days prior to the current PHYTEC planned shipment date as of the date of the notice. For each shipment, only one (1) reschedule is allowed; the rescheduled shipment date must be within thirty (30) days of the current PHYTEC planned shipment date.
10.1 Buyer may not request changes to Standard Products or to Products designated as NCNR.
10.2 Buyer may request changes to Special Products only if PHYTEC receives a written change request not less than ninety (90) days prior to the Buyer’s scheduled delivery date. PHYTEC shall use reasonable efforts to respond in writing with the impact of such requested change, including but not limited to cost, manufacturing and delivery schedules. PHYTEC shall, in its sole discretion, have the right to accept or reject any change request. Buyer shall be liable for all non-recoverable costs associated with a change order incurred by PHYTEC, including all non-transferable and non-cancellable raw materials and work in process not consumed after the change.
10.3 PHYTEC shall notify Buyer of changes impacting Product form, fit, or function via a Product Change Notification (PCN). For Standard Products, lack of acknowledgement of the PCN within thirty (30) days constitutes acceptance of the change. For Special Products, having a controlled Bill of Materials, PHYTEC may only implement Changes with written approval from Buyer.
10.4 PHYTEC disclaims any liability for any BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND caused by Buyer failure to accept PCN’s in a timely manner.
10.5 PHYTEC shall provide notice of Product discontinuance to Buyer in a timely manner to enable Life Time Buys, or other reasonable continuation of supply, of impacted Products.
11. Hardware Warranties
11.1 PHYTEC warrants to Buyer that PHYTEC’s Product is free from defects in material and workmanship, under normal use and service. Buyer shall promptly notify PHYTEC in writing of any defective Products under Warranty.
11.2 PHYTEC warrants no Product defect that results from improper use, negligence, modification, improper installation, improper product testing methods, repairs made by the Buyer, or other factors outside of PHYTEC’s control.
11.3 Buyer’s removal of the unique serial number adhesive label on hardware Products shall void any warranty.
11.4 PHYTEC does not warrant the sale of used or reconditioned hardware.
11.5 Buyer shall return any Products with defects to PHYTEC pursuant to PHYTEC prevailing Return Merchandise Authorization (RMA) procedures at www.phytec.com. PHYTEC’s obligation under its Warranty herein shall be limited to either (at PHYTEC’s election) a credit to Buyer’s account for such Products or replacement or repair of Products, free of charge, for which a defect has been substantiated by PHYTEC, for a period of twelve (12) months from date Buyer receives Product shipped from PHYTEC.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTIES OR LIABILITY ARISING BY LAW OR OTHERWISE, (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND CONSEQUENTIAL DAMAGES.)
12. Software Warranties
SOFTWARE IS PROVIDED “AS IS”. PHYTEC MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OBJECT CODE OR SOFTWARE SOURCE CODE OR WITH RESPECT TO ANY THIRD PARTY MATERIALS OR OTHER SOFTWARE PRODUCTS OR INTELLECTUAL PROPERTY OBTAINED FROM THIRD PARTIES. PHYTEC MAKES NO WARRANTY THAT THE SOFTWARE IS MARKETABLE, MERCHANDISABLE OR FIT FOR ANY PARTICULAR PURPOSE.
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL WARRANTIES – WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED. PHYTEC EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. IN NO CASE SHALL PHYTEC BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES FOR BREACH OF ANY WARRANTY, WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED AS TO SOFTWARE.
13. Acknowledgement Regarding High Risk Activities
Buyer acknowledges that Product provided by PHYTEC are not specifically designed, manufactured or tested with the level of reliability necessary for use or resale in an environment requiring fail-safe performance, such as in the operation of aircraft navigation, nuclear facilities, life support or other medical systems or devices, or other critical applications in which failure of the services or Product could lead or reasonably be expected to lead to death, injury or severe environmental damage (“High Risk Activities”). PHYTEC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
Buyer further HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE PHYTEC, its members, directors, officers, employees, and agents from all liability to Buyer, Buyer’s agents and assigns for any loss, damage, and claims of whatsoever nature, on account of personal injury, accident, illness, death or property loss WHETHER CAUSED BY THE NEGLIGENCE OF PHYTEC OR OTHERWISE, occurring as a result of the use or incorporation of the Product in any High Risk Activity.
14. Limitation of Liability
PHYTEC’s liability is limited to damages not to exceed the original purchase price of the Product sold to Buyer by PHYTEC. TO THE FULLEST EXTENT PERMITTED BY LAW, PHYTEC HEREBY DISCLAIMS AND EXCLUDES ANY LIABILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. PHYTEC’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE PRODUCT GIVING RISE TO THE CLAIM OR LIABILITY. THIS EXCLUSION AND LIMITATION APPLIES TO ALL LEGAL THEORIES UNDER WHICH DAMAGES MAY BE SOUGHT. PHYTEC DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF PHYTEC HEREUNDER. CONSEQUENTIAL OR OTHER DAMAGES RESULTING FROM ANY REASON WHATSOEVER.
PHYTEC assumes no liability for any damages or costs associate with the integration, installation or incorporation (“Use”) of the PHYTEC Product with equipment of materials not provided by PHYTEC. Buyer agrees that is bears all liability for such Use of the PHYTEC Product, including but not limited to qualification; conformance; and functional, environmental and use case testing.
15. Intellectual Property
PHYTEC retains all right, title and interest in and to all Product technical information, intellectual property and proprietary rights (including without limitation trademarks, copyrights, patent rights, trade secrets, service marks, and goodwill) designed, developed, created or derived by PHYTEC from the Product or dealings with Buyer. Buyer does not acquire any Product rights in regards to any tooling, set-up, drawings, design information, computer programming, or invention(s) resulting therefrom. Buyer rights to any software Product object and source code shall be defined in any applicable PHYTEC Software End User Licensing Agreements (“EULA”) between Buyer and PHYTEC.
16. Parameters of Use
16.1 Buyer shall not copy, modify, reverse assemble, deconstruct, or reverse engineer any Product, without the advance written consent of PHYTEC. PHYTEC may withhold this consent, in PHYTEC’s sole and absolute discretion.
16.2 Reproduction of PHYTEC software without the express written consent of PHYTEC is allowed solely for the purposes of Buyer’s internal use or for backup.
17. Export Controls
Buyer shall comply with all applicable laws and regulations governing the transportation, import, export, and/or sale of goods. Neither Buyer nor any of its subsidiaries shall export/re-export any technical data, process, goods or service, directly or indirectly – including the release of controlled technology to foreign nationals from controlled countries – to any country for which an export license or other government approval without first obtaining such license.
18.1 Buyer shall provide a Washington Reseller Permit to PHYTEC if PHYTEC delivers Product to Buyer for integration in Buyer’s own product for resale and Buyer is (a) an out of state business with a business nexus in the State of Washington; (b) a registered business in the State of Washington; or (c) a resident individual of the State of Washington. No sales tax shall be assessed if Buyer is (a) an out of state individual or (b) out of state business without a registered business nexus in the State of Washington, in which case Buyer should provide a Uniform Sales and Use Tax Exemption Certificate at time of Buyer’s initial purchase order.
18.2 PHYTEC’s prices do not include sales, use, excise, customs, value-added or similar taxes. Buyer will pay or reimburse PHYTEC for all such taxes as may be applicable or provide PHYTEC with acceptable tax exemption certificate. Buyer indemnifies PHYTEC against any costs or losses, including attorney fees, arising from any improper designation of tax status.
19.1 No modification, amendment, rescission, waiver or other change to these Standard Terms shall be binding unless agreed to in writing by PHYTEC.
19.2 No delay or omission on the part of PHYTEC in exercising any right shall operate as a waiver of such right or any other right.
19.3 Buyer may not assign its rights and obligations with PHYTEC unless PHYTEC consents in writing, in advance. Any such transfer without the written consent from PHYTEC shall be null and void.
19.4 In the event any provision of these Standard Terms is held unenforceable by a court of competent jurisdiction, then such provision shall be deemed to be severable as to such jurisdiction (but, to the extent permitted by law, not elsewhere) and shall not affect the remainder of these Standard Terms or any other document executed by the Parties, which shall continue in full force and effect.
19.5 All agreements and disputes between the Parties will be governed by, construed and enforced in accordance with the laws of the state of Washington without regard to choice or conflict of law provisions. Venue for any action shall be in Chelan County, Washington, or in Kitsap County, Washington, at PHYTEC’s sole election, unless the Parties agree otherwise in a writing signed by the Parties.