PHOSCRETE CORPORATION – TERMS AND CONDITIONS OF SALE
1. NO MODIFICATION OF SALES TERMS
Any terms and conditions contained in any purchase order or other form of communication from Buyer that are additional to or different from these Terms and Conditions (“Terms and Conditions”) shall be deemed rejected by Phoscrete unless expressly accepted in writing by Phoscrete. No modification, amendment, waiver or other change of any of these Terms and Conditions and those contained on the Order Acknowledgement and/or in attachments thereto, or of any rights or remedies thereunder, shall be binding on a party unless expressly accepted in writing by such party’s authorized officers. No course of dealing, usage of trade, or course of performance shall be relevant to explain or supplement any of these Terms and Conditions. In case of conflict between the Terms and Conditions printed on this page and those contained on the Order Acknowledgement and/or in attachments thereto, these terms and conditions as amended herein shall control. If any document issued by Phoscrete or a Buyer is sent by facsimile or another form of electronic document transmission, Phoscrete and each Buyer agrees that (a) the copy of such document printed on the facsimile machine or printer of the recipient thereof is a counterpart original copy thereof and is a “writing,” (b) delivery of such document to the recipient thereof and is legally sufficient for all purposes as if delivered by United States mail, (c) the electronic signature of an authorized agent of the party sending such document on any such document is sufficient as a signature thereon on behalf of such party and the intent of such signature is to authenticate the writing, and (d) an electronically stored and reproduced copy of such document shall be deemed to be legally sufficient evidence of the terms of such document for all purposes.
2. ACCEPTANCE OF ORDERS
Acceptance by Phoscrete of Buyer’s purchase order(s) is expressly conditioned upon Buyer’s assent to these Terms and Conditions as amended herein, except for different agreed upon terms and conditions.
Quotations by Phoscrete shall be deemed to be offers by Phoscrete to sell the product described therein subject to these Terms and Conditions. Purchase orders submitted by Buyer for the product quoted by Phoscrete shall be subject to and will be deemed to constitute acceptance of these Terms and Conditions. All purchase orders will be subject to approval by Phoscrete.
4. PRICES; PRICE CHANGES
All prices are net F.O.B. shipping point and are subject to change with notice, subjected to Buyer’s approval. If Phoscrete’s quoted price was based upon delivery to and acceptance by Buyer of a specified quantity of product, such price shall be subject to adjustment if Buyer does not accept the quantity at the times specified in Phoscrete’s quotation, and Buyer will be invoiced at Phoscrete’s standard price without quantity discounts, if any, for the quantity of product actually accepted by Buyer.
In addition to the purchase prices for Phoscrete’s product, Buyer shall pay the amount of any present or future manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Phoscrete and Buyer to the extent Buyer should pay for such taxes and fees as legally determined. If Phoscrete is required to pay any such tax, fee or charge, Buyer shall reimburse Phoscrete therefor; or, in lieu of such payment, Buyer shall provide Phoscrete at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing such tax, fee or charge.
6. TERMS OF PAYMENT
Terms of payment are net thirty (30) days from receipt of an undisputed invoice. No discount unless otherwise noted on the quotation or invoice. If, during the period of performance of an order, the financial condition of Buyer is determined by Phoscrete not to justify the terms of payment specified, Phoscrete may demand full or partial payment in advance before proceeding with the work, or satisfactory security or guarantees that invoices will be promptly paid when due, or, at Phoscrete’s option without prejudice to its other lawful remedies, may defer delivery or cancel the order, with reasonable prior written notice. If delivery is deferred, the product may be stored as provided in Section 9 hereof and Phoscrete may submit a new contract price based on prevailing conditions. If Buyer defaults in any payment when due, or if any voluntary or involuntary bankruptcy or insolvency proceedings involving Buyer are initiated by or against Buyer, then open invoices shall become due and payable upon demand, or Phoscrete, at its option without prejudice to its other lawful remedies, may defer delivery or cancel the order with prior written notice.
Prorata payments shall become due as shipments are made as directed by Buyer. If shipments are delayed by Buyer for reasons within its control, payments shall become due thirty (30) days from the date Buyer receives an undisputed invoice regardless of shipment and storage shall be Buyer’s risk and expense as provided in Section 9 hereof. If manufacture is delayed by Buyer for reasons within its control, a partial payment based upon the proportion of the completed order shall become due thirty (30) days from the date Buyer receives an undisputed invoice. Interest accrues at 1.5% per month on past due balances.
7. DELIVERY; RISK OF LOSS
All sales are F.O.B. Phoscrete’s plant or other point of shipment designated by Buyer. Shipping dates are estimates only, nonetheless delivery must be made prior to agreed upon date. Shipping dates are not guaranteed and are based upon prompt receipt from Buyer of all necessary shipping and other information. Parties may agree to delivery in installments, and all installments shall be separately invoiced and paid for by Buyer when due, without regard to subsequent deliveries. Delivery of product to a commercial carrier at Phoscrete’s plant or other loading point shall constitute delivery to Buyer, and any risk of loss and further cost and responsibility thereafter for claims, delivery, loss or damage, including, if applicable, placement and storage, shall be borne by Buyer. When product is delivered by Phoscrete’s truck, unloading at Buyer’s dock shall constitute delivery to Buyer. Claims for shortages or other errors in delivery shall be made in writing to Phoscrete within ten (10) days after receipt of shipment. Claims for loss or damage to product in transit by common carrier must be made to the carrier and not to Phoscrete, however Phoscrete shall cooperate with Buyer and provide all necessary information for such claims.
Freight and handling charges by Phoscrete may not reflect actual freight charges prepaid to the carrier. Phoscrete may have incentive discounts earned by Phoscrete based upon Phoscrete’s aggregate volume of freight tendered to a carrier or due to use of a carrier that charges a rate different than the rate upon which Phoscrete’s freight and handling charges were based. When shipments are delivered in Phoscrete’s private trucks, Buyer will be charged fair market amount of prevailing common carrier rate.
8. EXCUSABLE DELAYS; FORCE MAJEURE
Phoscrete shall not be liable for any ordinary, incidental, consequential or special loss or damage as a result of delay in or failure of delivery or installation due to (i) any cause beyond Phoscrete’s reasonable control, such as fire, theft, accident, strike, slowdown or other labor disturbances, delay in transportation, which could not be reasonably avoided by Phoscrete (ii) an act of God, act of the Buyer, embargo or other government act, authority, regulation or request, , war, riot, or (iii) inability to obtain necessary labor, materials components or facilities from factors not within Phoscrete control. Should any of the aforementioned events or force majeure occur, Phoscrete, at its option, may cancel Buyer’s order with respect to any undelivered product or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer. If Phoscrete elects to cancel the order, Phoscrete shall be released of and from all liability for failure to deliver the product, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any nature that Buyer might have.
If shipping is delayed or interrupted by Buyer, directly, Buyer shall pay Phoscrete for all proven additional charges resulting therefrom.
If the product is not shipped within thirty (30) days after notification has been made to Buyer that it is ready for shipping, for any reason beyond Phoscrete’s control, including Buyer’s failure to give shipping instructions, Phoscrete may store the product at Buyer’s risk and expense in a warehouse or on Phoscrete’s premises, and Buyer shall pay all reasonable and necessary handling, transportation and storage costs at the fair market rates following Phoscrete’s submission of invoices for such costs.
10. LIMITED WARRANTIES TO DISTRIBUTORS AND INDUSTRIAL OR COMMERCIAL
This limited warranty is extended to Phoscrete’s distributors and industrial or commercial customers. Limited Warranty Period. All Phoscrete products are manufactured to meet published physical properties within tolerances established by Phoscrete, in accordance with industry standards, when the material is stored, mixed, placed, and cured according to Phoscrete’s standards for such products, and Phoscrete warrants all of its products to be free from defects for a period consistent with the shelf life of the material as described in Phoscrete’s published installation guides or until it is installed, whichever period shall expire first.
Limited Warranty Remedies. If, prior to expiration of the foregoing applicable limited warranty period, any of such products shall be proved to be defective or nonconforming, Phoscrete will repair or replace such defective product, at the destination designated by Buyer, or will refund or provide Buyer with a credit in the amount of the purchase price paid therefore by Buyer, as mutually agreed by Buyer and Seller. Buyer’s exclusive remedy and Phoscrete’s sole obligation under this warranty shall be limited to such repair or replacement, plus costs arising directly from such defect or non- conformity subject to Section 11 hereof, or refund or credit by Phoscrete, and shall be conditioned upon Phoscrete’s receiving written notice of any defect within a reasonable period of time (within sixty (60) days) after it was discovered.
Exclusions. This warranty (i) does not apply to, and shall be void with respect to, product not installed in accordance with installation instructions or requirements, to product altered by a party other than Phoscrete or Phoscrete’s authorized service agents; product which has been rendered defective or nonconforming as a result of mixture with any defective or nonconforming materials of any party other than Phoscrete; product that was subjected to abuse, negligence, misuse, misapplication, , damages by circumstances beyond Phoscrete’s control, improper installation, operation, maintenance or storage, or any use or service other than normal use or service; and (iii) does not apply to product not manufactured by or for Phoscrete. With respect to product not manufactured by Phoscrete, Phoscrete’s warranty obligations shall in all respects conform and be limited to the warranty actually extended to Phoscrete by its suppliers, but in no event, shall Phoscrete’s obligations be greater than those provided under Phoscrete’s limited warranty set forth in this Section 10.
THE FOREGOING LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (EXCEPT TITLE), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO EMPLOYEE. REPRESENTATIVE OR AGENT OF PHOSCRETE (OTHER THAN AN OFFICER OF PHOSCRETE) IS AUTHORIZED TO ALTER OR MODIFY ANY PROVISION OF THIS SECTION 10 OR TO MAKE ANY GUARANTEE, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, WHICH IS CONTRARY TO THE FOREGOING. Any description of the product, whether in writing or made orally by Phoscrete or Phoscrete’s agents, or specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials which may have been used in connection with Buyer’s order or in any promotional materials or otherwise used in selling products to Buyer, are for the sole purpose of identifying the product and shall not be construed as an express warranty or to modify this limited warranty in any manner whatsoever. Any suggestions by Phoscrete or Phoscrete’s agents regarding use, application or suitability of the product shall not be construed as an express warranty or to modify this limited warranty in any manner unless confirmed to be such in writing by an authorized officer of Phoscrete.
11. LIMITATIONS OF LIABILITY; CONSEQUENTIAL DAMAGES
Improper Use Disclaimer. Product sold by Phoscrete is not intended for use (i) in connection with any nuclear facility or activity, (ii) in connection with any material not specifically approved in the Installation Guide, or (iii) in any manner or use otherwise contrary to the Installation Guide. If so used, Phoscrete disclaims all liability for any nuclear damage, other damage, injury or contamination, and Buyer shall indemnify and hold Phoscrete, and its officers, agents, employees, successors, and assigns harmless from and against any and all damages, liability, claims, losses or expenses (including reasonable attorneys’ fees, court costs, and other costs of defending any action as determined by a competent jurisdiction) arising from personal injuries and/or property damages to the extent caused by Buyer’s negligence or willful misconduct. Consequential Damage Disclaimer. Phoscrete’s liability with respect to product proved to its satisfaction to be defective or nonconforming within the limited warranty period, and for which no other exclusions or limitations set forth in this limited warranty are applicable, shall be limited to replacement or refund as provided in Section 10 hereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATION TO THE LOST PROFITS, LOSS OF REVENUE) ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM ANY CAUSE WHATSOEVER. Liability: Phoscrete shall indemnify and hold Buyer and its officers, agents, employees, successors and assigns harmless from and against any and all damage, liability, claims, losses or expenses ( including reasonable attorneys’ fees, court costs and other costs defending any action, as determined by a court of competent jurisdiction) arising from personal injuries and/or property damages to the extent caused by Phoscrete’s negligence or willful misconduct.
EVEN IF THE REPLACEMENT REMEDY SHALL BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE UNDER SECTION 2-719 OF THE UNIFORM COMMERCIAL CODE, PHOSCRETESHALL HAVE NO LIABILITY TO BUYER FOR CONSEQUENTIAL DAMAGES, SUCH AS LOST PROFITS, LOST REVENUE, OR DAMAGE TO OTHER PRODUCT. PARTIES SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.
12. INDEMNIFICATION BY BUYER
Buyer shall indemnify, hold harmless, and defend Phoscrete, and Phoscrete’s officers, agents, employees, successors, , from and against any and all damages, liability, claims, losses and expenses (including reasonable attorneys’ fees, court costs, out-of-pocket expenses and other costs of defending any action, as determined by a court of competent jurisdiction) arising from personal injuries and/or property damages to the extent caused by Buyer’s negligence or willful misconduct.
13. PATENT INDEMNIFICATION
Phoscrete will, at its own expense, defend or settle any suits that may be instituted against Buyer for alleged infringement by the product of any United States patent, provided that (a) such alleged infringements consist of the use of the product for any of the purposes for which such product was sold, (b) Buyer shall give Phoscrete immediate notice in writing of any such suit and transmit to Phoscrete timely upon receipt all processes and papers served upon Buyer, and (c) Phoscrete shall through its counsel, hold Buyer harmless, and in the name of Phoscrete, defend such suit(s) Buyer shall cooperate with information, assistance and authority to enable Phoscrete to do so. Phoscrete shall indemnify and hold Buyer and its agents harmless from any damages and liabilities (including reasonable attorneys’ fees and related costs) arising out of such patent infringement, to the extent of Phoscrete’s negligence. In case of a final award of damages in any such suit, Phoscrete will pay such award but will not be responsible for any compromise or settlement made without its written consent. In case the product itself is in such suit held to infringe any valid patent issued in the United States and its use enjoined, or in the event of a settlement or compromise approved by Phoscrete that shall preclude future use of the product sold to Buyer hereunder, Phoscrete shall, at its own expense as mutually agreed by Buyer and Seller, either (a) procure rights to continue using such product, (b) modify the product to render it non-infringing, (c) replace the product with non-infringing product, or (d) refund the purchase price paid by Buyer for the product after return of the product to Phoscrete. Notwithstanding the foregoing, Phoscrete shall not be held responsible for infringements of combination or process patents covering the use of product in combination with other goods or materials not furnished by Phoscrete. The foregoing states the entire liability of Phoscrete for patent infringement, and in no event shall Phoscrete be liable for consequential or incidental damages attributable to an infringement, nor shall Phoscrete be liable for infringement based on the use of the product for a purpose other than that for which sold by Phoscrete. As to any product furnished by Phoscrete to Buyer manufactured in accordance with designs proposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of product sold hereunder, Buyer, to the extent of Buyer’s negligence, shall indemnify Phoscrete for any award made against Phoscrete or settlement by Phoscrete for any patent, trademark or copyright infringements, including reasonable attorneys’ fees, court costs, and other costs of defending any action as determined by a court of competent jurisdiction.
14. DRAWINGS; OTHER DESIGN DATA
Buyer shall not give, loan, exhibit, sell or transfer to any third party authorized to receive such information, or to any organization or entity, any Phoscrete Intellectual Property or reproduction thereof that may enable such person, organization or entity to furnish similar goods except for its Customer for which such product is procured.
15. RETURN OF PRODUCT
No product shall be returned to Phoscrete without written authorization and shipping instructions first having been obtained from Phoscrete, not to be unreasonably withheld.
16. ASSIGNMENT AND SUBCONTRACTING
Except to Buyer’s customer for which the products are procured for, none of the Buyer’s rights under any order shall be assigned by Buyer to any other person, whether by operation of law or otherwise, without Phoscrete’s prior written approval. Phoscrete may with the necessity of obtaining Buyer’s prior written consent, subcontract the production of all or any portion of the product. Phoscrete’s rights and obligations under this contract or any order shall not be assigned by Phoscrete to any other person whether by operation of law or otherwise, without Buyer’s prior written approval. Any purported assignment or transfer in violation of this contract shall be void and constitute a breach of this Contract. Notwithstanding the aforementioned, Phoscrete acknowledges and agrees that Buyer’s Customer is a third-party beneficiary and to transfer any and all warranties under this contract for such Customer.
No order submitted to Phoscrete may be cancelled by Buyer without the prior written consent of Phoscrete, which consent will be conditioned on Buyer’s agreement to pay Phoscrete’s cancellation charge. For all cancellations, the cancellation charge shall amount to all reasonable and necessary costs and expenses incurred by Phoscrete, but in no event less than ten percent [10%] of the invoice price of the product. Notwithstanding the aforementioned, in the case of defective or nonconforming products, as determined by a court of competent jurisdiction, Buyer shall have the right to cancel the order without Phoscrete’s consent and without paying any fees or costs, and any costs associated with such cancellation and return shall be Phoscrete’s responsibility.
Governing Law. These Terms and Conditions, and the contract of sale between Phoscrete and Buyer, shall be governed by and construed in accordance with the laws of the State of Florida. Parties hereby agree that any legal action deemed necessary by either party hereto shall be brought in the State of Florida and hereby consent to the personal jurisdiction of such court in any such action over the parties hereto. The rights and obligations of Phoscrete and Buyer shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Attorneys’ Fees. Buyer agrees to pay all of Phoscrete’s costs and expenses of collection and related litigation, including but not limited to reasonable attorneys’ fees and costs as determined by a court of competent jurisdiction. Savings Clause. The invalidity, in whole or in part, of any of the provisions of these Terms and Conditions shall not affect the enforceability of any of the other provisions thereof. Applicability. The Terms and Conditions as stated herein are applicable as of the date of this contract and until such time changed as agreed by both parties. Published 02-05-2020