Terms and Conditions
STANDARD TERMS AND CONDITIONS
AND SALE OF PHASEFREE PRODUCTS AND/OR SERVICES
1. Definitions. As used in this Terms and Conditions ('Agreement'), the terms (a) 'Seller' shall mean Phasefree, Inc., (b) 'Buyer' shall mean the party executing this Agreement to purchase the Products or Services specified on the reverse side of this Agreement and/or the party accepting delivery of Seller's Products or Services hereunder, (c) 'Products' shall mean, but not be limited to, the software programs ('Software'), transient voltage surge suppressors, custom engineered products, equipment and goods provided by Seller under this Agreement, and (d) 'Services' shall mean all manufacturing assemblies, relocation, maintenance or other services provided by Seller in connection with the sale, use or installation of the Products.
2. Acceptance, Merger and Integration. Seller will be deemed to have accepted this Agreement when Buyer returns an acknowledged and executed copy of this Agreement, or, at Seller's option, when Seller begins substantial performance under this Agreement. Buyer accepts this Agreement by acknowledging and executing a copy of this Agreement, by confirming this Agreement by its purchase agreement or confirmation, or by acceptance of delivery of the Products or Services hereunder. Buyer has no right to cancel or defer manufacture, shipment or delivery unless agreed to in writing by Seller. Notwithstanding the manner in which Buyer accepts, Buyer's acceptance is limited exclusively to the acceptance of Seller?s terms and conditions set forth in this Agreement only. Seller hereby objects to and rejects any proposal by Buyer for additional or different terms in connection with the Products or Services provided. Buyer may acknowledge this Agreement by its purchase agreement, but any and all terms, conditions and provisions contained in said purchase agreement, acknowledgment form or other communications with respect to the transaction contemplated by this Agreement, or subsequent to the date hereof, are agreed to be superfluous and without any force and effect. This Agreement, which includes all of the terms and conditions hereunder, and all exhibits, riders or limited warranties attached hereto, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the Products or Services hereunder. There are no promises, representations or understandings made in connection with this Agreement or contemporaneous with the execution hereof, except as set forth in this Agreement.
3. Payment. Payment shall be net thirty (30) days from the date of shipment. It is agreed that with respect to Buyer?s payment obligation, time is of the essence. All payment terms are expressed in U.S. dollars. Seller reserves the right to determine, at its sole discretion, the parties and extent of any credit approval, if applicable. Failure to make prompt and full payment hereunder constitutes a material breach of this Agreement and affords Seller the right to suspend its performance without liability to Buyer and/or cancel this Agreement and any Purchase Orders. Buyer has no right of setoff.
4. Taxes and Import Duties. The price of the Products or Services specified does not include federal taxes, state or local sales taxes, use taxes, occupational taxes, or import duties. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes or import duties applicable to the manufacture, sale, price, delivery or use of the Products or Services provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to and considered valid by the applicable taxing authorities.
5. Delivery and Risk of Loss. All sales are FOB\\FCA Seller's or supplier's U.S. dock. Risk of loss, destruction of or damage to the Products shall be Seller's until delivery of the Products to a common carrier at the Seller?s U.S. dock. Thereafter, title shall pass to Buyer and Buyer shall be fully responsible for and assume all risk of loss, destruction of or damage to the Products. Loss or damage to the Products after risk of loss has passed to Seller will not release or excuse Buyer from its obligations under this Agreement to Seller, including the obligation to make full payment of the purchase price.
6. Delivery Delays. Seller shall use reasonable efforts to make prompt deliveries in a commercially reasonable manner. Delivery dates and estimates are, however, not guaranteed. Seller disclaims any liability or responsibility for the late or non-delivery of Products hereunder. Seller shall additionally not be liable for failure to deliver or delays in delivery of the Products or Services covered by this Agreement if such failure or delay is due, in whole or part, to any cause or conduct beyond the reasonable control of Seller. Buyer has no right to delay or defer delivery or acceptance.
7. Tooling. Seller retains all right, title and interest in and to tooling, blueprints, sketches or other data in connection with the sale, design and manufacture of the Products, and shall have a tooling lien to the full extent permitted by Colorado law.
8. Rejection and Revocation of Acceptance. Any rejection or revocation of acceptance by Buyer must be made within thirty (30) days of delivery and any attempted rejection or revocation of acceptance made thereafter shall be null and void unless agreed to in writing by Seller.
9. Limited Warranty and Disclaimer of All Other Warranties. (a) SELLER WARRANTS FOR A PERIOD OF ____ YEARS FROM THE DATE OF DELIVERY THAT THE PRODUCTS (i) MEET OR EXCEED THE WRITTEN SPECIFICATIONS SET FORTH ON THE REVERSE SIDE HEREOF, AND (ii) ARE FREE OF MATERIAL DEFECTS IN DESIGN OR WORKMANSHIP, EXCLUDING, HOWEVER, ANY DEFECTS RESULTING FROM SPECIFICATIONS, METHODS OR DESIGNS PROVIDED BY BUYER. BUYER?S EXCLUSIVE REMEDY IN CONNECTION WITH THESE EXPRESS WARRANTIES AND THIS AGREEMENT IS THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR SERVICES OR, AT SELLER?S OPTION, A REFUND OF THE PURCHASE PRICE, IF ANY, ACTUALLY PAID BY SELLER FOR THE NONCONFORMING PRODUCTS OR SERVICES. IN THE EVENT THAT BUYER OBTAINS A REFUND OF THE PURCHASE PRICE, BUYER SHALL FIRST SHIP THE PRODUCTS SUBJECT TO THE REFUND TO SELLER AND TRANSFER TITLE TO SAID PRODUCTS TO SELLER AS SOON AS PRACTICABLE. PRODUCTS OBTAINED FROM THIRD PARTIES ARE SOLD ?AS IS.?
(b) EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES IN THIS AGREEMENT OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SELLER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO BUYER FOR ANY CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF USE, LOSS OF PROFITS, INCOME, OR REVENUE, LOSS OF TIME OR INCONVENIENCE, LOSS OR DAMAGE TO ASSOCIATED EQUIPMENT, UPTIME, COST OF SUBSTITUTED OR REPLACEMENT EQUIPMENT, LOSS TO FACILITIES, LOSS OF CAPITAL, LOSS OF SERVICES OR COST OF REPLACEMENT POWER, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGE ARISING OUT OF THIS AGREEMENT OR THE OPERATION, FUNCTION OR CHARACTERISTICS OF THE PRODUCTS OR SERVICES PURCHASED HEREUNDER OR OTHERWISE PROVIDED BY SELLER. IT IS EXPRESSLY UNDERSTOOD THAT THE LIMITED WARRANTY AFFORDED BUYER IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER.
10. Limitation of Liability. To the fullest extent permitted by law, the parties waive and relinquish any claims, demands, causes of action or recoveries for punitive damages, exemplary damages, or statutory damages. In no event will Seller be liable for indirect, special, incidental or consequential damages arising under this Agreement or otherwise with respect to the sale or use of the Products or provision of Services, including any lost revenues or profits, consequential and/or incidental or indirect damages, business interruption or damage to business, reputation, regardless of the theory upon which any claim may be based, including, without limitation, any tort or statutory causes of action. Notwithstanding the terms of any limited warranty, and/or in the event any limited warranty provided to Buyer fails of its essential purpose, in no event will Seller?s entire liability to Buyer (in tort, contract, for intellectual property infringement, or otherwise) exceed the purchase price actually paid by Buyer for the Products and/or Services subject to the contract or Agreement in dispute, or any defective or nonconforming portion thereof, whichever is the lesser amount.
11. Default. The failure of Buyer to perform any obligation hereunder, including without limitation, the breach of this Agreement, the prompt and complete payment of the purchase price for Products or Services and all other amounts due hereunder, the failure to materially perform other agreements between Buyer and Seller, or Buyer?s bankruptcy, insolvency, fraud or inability to pay its debts as they mature, shall constitute a default under this Agreement and shall, in addition to any other remedies at law or in equity, afford Seller all of the remedies of a secured party under the Uniform Commercial Code of the State of Colorado. In the event of default, Seller may, in addition to pursuing any of the remedies provided by law, equity or as set forth in this Agreement, refuse to provide warranty, repair and/or maintenance Service and/or deliver Products under this or any Service or maintenance agreement relating to the Products, and may also cancel this Agreement and any pending orders without liability to Buyer. In the event of default, Seller may also, without limiting its other remedies, terminate this Agreement and apply any and all payments received hereunder or otherwise from Buyer to any damages that Seller may have as a result of the breach of this Agreement or otherwise. To the fullest extent permitted by law, all of Seller's rights and remedies under this Agreement shall be cumulative and not exclusive.
12. Waiver and Severability. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. If any term, covenant, warranty, remedy or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law.
13. Force Majeure. Seller shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products or provide maintenance or Services, arising from any delay or failure to perform all or any part of this Agreement as a result of causes, conduct or occurrences beyond Seller's reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Seller.
14. Indemnification. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by Buyer?s insurers, causes of action, controversy, liabilities, fines, regulatory actions, seizures of Product, losses, costs, expenses (including, but not limited to attorneys' fees, expert witness expenses and litigation expenses) (hereinafter 'Claim'), arising from or in connection with any Claim asserted against Seller for any damage, environmental liability, patent or intellectual property infringement caused by Buyer?s requirements, specifications or use of the Products, modification or alteration of the Products, injury, death, loss, property damage, delay or failure in delivery of Seller's Products or any other Claim, whether in tort, contract, or otherwise, relating to this Agreement, the business relationship between the parties, the Products or Services provided hereunder, or Buyer's breach of this Agreement. Notwithstanding the foregoing, Buyer has no indemnity obligation to Seller with respect to any Claims that result solely from the negligence of Seller and this indemnity provision does not purport to indemnify Seller solely for its own negligence, but rather for the negligence or conduct, whether sole or concurrent, of Buyer. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer's contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller?s insurers in the event of the personal injury or death of Buyer?s employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, Claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants.
15. Arbitration and Venue. Any controversy, Claim, cause of action or other dispute among the parties ('Dispute'), whether or not arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be resolved by binding arbitration and in strict accordance with the CPR Institute for Dispute Resolution's Rules for Non-Administered Arbitration of Business Disputes, by a sole arbitrator. The arbitration shall be governed by the United States Arbitration Act, 9 USC § 1-16 and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The selection of the independent arbitrator shall be made by agreement of the parties. In the event that the parties cannot agree upon the selection of an independent arbitrator, the arbitrator shall be appointed pursuant to Rule 6 of the CPR Institute for Dispute Resolution's Rules for Non-Administered Arbitration of Business Disputes. The parties shall make reasonable efforts prior to submitting any claim or Dispute to arbitration to resolve the matter through mediation. The arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the State of Colorado and the express terms of this Agreement. The official language of the arbitration shall be English. The exclusive venue for any Disputes under this Agreement or otherwise shall be Bayfield, Colorado. The arbitrator shall not be empowered to grant punitive or exemplary damages or any damages in excess of those damages permitted or limited under the express terms of this Agreement. The party prevailing on substantially all of its claims in arbitration, litigation, or otherwise shall be entitled to recover its costs, including attorneys fees, as well as any ancillary proceedings, including a proceeding to compel or enjoin arbitration, to request interim measures or to confirm or set aside an award. The parties acknowledge that certain Disputes may cause irreparable harm, and therefore, each party will be entitled to seek equitable or injunctive relief in any court of competent jurisdiction. Any other relief beyond equitable or injunctive relief shall be sought exclusively in arbitration under this Section 15. Any arbitration proceeding shall be confidential.
16. Relationship. The relationship between Seller and Buyer shall be that of independent contractors and Seller, its agents and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents or representatives of Buyer.
17. Assignment and Modification. The rights and obligations of the parties under this Agreement shall not be assignable unless consent to the assignment is in writing and signed by the parties. This Agreement shall not be modified, altered or amended in any respect except by a writing signed by the parties. Any variation, modification, or addition to the terms set forth in this Agreement shall be considered a material modification and shall not be considered part of this Agreement.
18. Governing Law. This Agreement and all claims and disputes between the parties shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of Colorado.
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