1.1. These General Terms and Conditions of Sale shall apply to all Offers submitted by PHIBER Systems to a Customer and to Purchase Orders received from a Customer and accepted by PHIBER Systems for the sale of Products. These Terms and Conditions shall prevail over any other terms and conditions contained in any Purchase Order or other document of or communication from the Customer.
1.2. The Offer is open for acceptance within 60 days after its date of issuance unless a different validity period is stated in the Offer. All Purchase Orders are subject to acceptance by PHIBER Systems in writing.
1.3. Descriptions and illustrations contained in PHIBER Systems’ system diagrams, spec sheets, price lists, and other advertisements are for general information purposes only and Customer shall be deemed to have purchased the Products without reliance on such descriptions and illustrations.
2.1. “Terms and Conditions” shall mean these PHIBER Systems General Terms and Conditions of Sale.
2.2. “Offer” shall mean an official quotation by PHIBER Systems for the purchase of Products by Customer.
2.3. “Purchase Order” shall mean the order issued by the Customer for the purchase of Products and acknowledged by PHIBER Systems in accordance with these Terms and Conditions and applicable Customer Terms and Conditions.
2.4. “Products” shall mean the goods, materials, or equipment and any part or component thereof supplied by PHIBER Systems and/or any work or services performed by PHIBER Systems pursuant to these Terms and Conditions.
2.5. “Customer” shall mean the buyer of Products, the recipient of an Offer, or the party issuing a Purchase Order.
2.6. “PHIBER” and “PHIBER Systems” shall mean PHIBER Systems, LLC.
3.1. Unless otherwise agreed in writing, Products are invoiced at the prices agreed upon in the purchase order.
3.2. Unless otherwise agreed in writing, all prices are given by PHIBER Systems on Ex Works basis (Incoterms 2010). Whenever PHIBER Systems agrees to deliver the Products other than at PHIBER Systems’ premises, Customer shall be liable to pay all PHIBER Systems’ charges and duties in respect of carriage, freight, packaging, customs, and insurance.
3.3. Payment for Products shall be made by the Customer within 30 days from the date of the invoice or as otherwise agreed between PHIBER Systems and the Customer. Unless otherwise stated, PHIBER Systems’ prices do not include sales, use, excise, or any other duties, including all export and import fees and port handling fees. All taxes of any kind levied by any federal, state, municipal, or other governmental authority which PHIBER Systems is required to collect or pay with respect to the sale or shipment of Goods sold hereunder (excluding only income taxes imposed on the net income of PHIBER Systems) shall be the responsibility of Customer. Customer agrees to pay all such taxes and to reimburse PHIBER Systems for any such payments made by PHIBER Systems.
3.4. Any past due Invoice shall, from the date due, be subject to a finance charge equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law. Additionally, Customer shall be responsible for all collection costs, court costs, and reasonable attorneys’ fees (where allowed by law) in connection with the recovery of any delinquent accounts.
3.5. If, in PHIBER Systems’ opinion, the credit of Customer becomes impaired, PHIBER Systems may, at its sole option, suspend performance of its obligations to Customer until such time as PHIBER Systems has received full payment or satisfactory security for deliveries of Products made and is satisfied as to Customer’s credit for future deliveries.
4.1. All Products will be suitably packed for shipment in accordance with PHIBER Systems’ standard, unless otherwise requested by the Customer and agreed to in writing by PHIBER Systems.
4.2. PHIBER Systems shall do its best to comply with the delivery date specified in the Purchase Order acknowledged and/or in the Offer. Partial delivery shall be permitted. Delays shall, in no case, justify the cancellation of the Purchase Order. PHIBER Systems shall not be responsible for delays in delivery or performance due to causes beyond its reasonable control, including Force Majeure as defined in Section 13. If performance by PHIBER Systems is delayed by reason thereof, PHIBER Systems shall notify Customer, and the time for performance shall be extended for the period of such contingency. If, as a result of any such contingency, PHIBER Systems is unable to perform any accepted Purchase Order in whole or in part, then to the extent it is unable to perform, such Purchase Order shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion thereof, if any.
4.3. Delivery takes place in accordance with Ex Works Incoterms 2010 at PHIBER Systems’ facilities or as otherwise agreed in writing between the parties.
4.4. It is agreed between PHIBER Systems and Customer the Products are shipped at the Customer’s risk even if the shipping is done at PHIBER Systems’ expense. Customer shall then take all necessary precautions including insurance to cover these risks.
4.5. The Customer shall perform a visual inspection at the receipt of the Products and notify PHIBER Systems of any reservations within 24 hours.
4.6. Should Customer postpone delivery of any Products, Customer will be required to pay to PHIBER Systems the invoice at the due date and 1% of the Purchase Order price per week for the Products’ storage at PHIBER Systems premises. Should Customer postpone delivery of any Products more than 12 weeks from the scheduled delivery date, PHIBER Systems shall have the right to deliver the Products and to invoice accordingly.
5.1. PHIBER Systems retains full ownership of the Products until full payment of the selling price has been received.
5.2. Notwithstanding PHIBER Systems’ retention of title, the risks related to the Products (including the risk of loss or destruction) shall pass to the Customer in accordance with Section 4.3 above.
5.3. Until full payment of the price, the Products are identified as PHIBER Systems’ property.
5.4. PHIBER Systems reserves the right to reclaim the Products if the selling price is unpaid at the due date, and Customer undertakes to return the Product on PHIBER Systems’ first demand and bear all related expenses.
If Customer believes a Product is defective, it must obtain a Return Material Authorization (RMA) number from PHIBER Systems prior to shipment of such Product back to PHIBER Systems. The RMA number must appear on all packages returned to PHIBER Systems and be referred to in all related correspondence. Return shipment of the Product for which damages are claimed shall be at Customer’s expense, and such Products shall not be returned, repaired, or discarded without PHIBER Systems’ written consent. Returned Products will be subject to inspection and final determination as to whether or not any adjustment is due. If the inspection shows the warranty for the Product is breached, the provision of Section 7 will apply.
7.1. PHIBER Systems warrants, unless otherwise agreed to between buyer and seller (PHIBER Systems Inc), for a period of two years from PHIBER Systems’ delivery of such Products, the Products shall be free from defects in materials and workmanship and shall conform to the contractual specifications or to specification sheet of the Product. This warranty does not cover defects or failure caused by improper handling, storage, maintenance, or repair or by any modification, misconnection, abuse, abnormal use of such Products or use not complying with PHIBER Systems’ user manual provisions if any.
7.2. For warranty service to be obtained, the installation must be certified after completion and have been recorded by the Dealer. Warranty claims must be made to PHIBER Systems immediately after discovering the defect and within the warranty period or are forever waived.
7.3. The foregoing warranty is exclusive of any other warranties, express, implied or statutory. In particular, this warranty shall not apply to failure arising from defect in design when the design has been completed in part by the Customer or a third party. Unless otherwise agreed, the warranty shall not apply to the compliance of Products to Customer’s needs. Should the Products warranty be breached, Customer’s exclusive remedy against PHIBER Systems, and PHIBER Systems’ sole obligation, shall be limited to, at PHIBER Systems’ option, repairing or replacing. Should the Products warranty be breached, Customer’s exclusive remedy against PHIBER Systems, and PHIBER Systems’ sole obligation, shall be limited to, at PHIBER Systems’ option, repairing or replacing the defective Products.
7.4. The Product shall be considered defective if the failure may be duplicated by PHIBER Systems, it being understood nonconformity shall be determined by reference to the contractual specifications applicable to the allegedly defective Products.
8.1. Unless otherwise agreed in writing, all prices are exclusive of any installation or service Customer may require.
8.2. PHIBER Systems products require professional installation supplied hereunder at the Customer’s premises or in the Customer’s care. PHIBER Systems shall be under no liability whatsoever for damage incurred by (or caused by) the Customer, its agents or subcontractors in installing the Products or for any consequential damages or purely financial loss howsoever caused.
9.1. Tests on the Products specified in the Offer will be performed by PHIBER Systems at its facilities.
9.2. If Customer requires tests other than those specified in the Offer, or if Customer requires the specified tests be carried out in the presence of its representatives, Customer shall pay for the cost of those tests and any other associated costs.
10.1. In no event shall PHIBER Systems have any liability for damages in an amount exceeding the purchase price of the related defective Products.
10.2. PHIBER Systems shall not have any liability for incidental, indirect, or consequential damages arising out of or relating to the Purchase Order or the Products, including but not limited to loss of profit or revenue, loss of business opportunity, or anticipated saving.
10.3. Unless otherwise agreed in writing with the Customer, PHIBER Systems shall not be liable for damages arising from the integration or the use of Products in a system or equipment (the “System”), on the design of which PHIBER Systems has no control. In such case, the Customer is solely liable for the System quality and reliability, as well as for any necessary security device and shall indemnify PHIBER Systems against any demand, claim, action, decision, loss, or damage arising from the use of the System which incorporates the Products.
11.1. Any and all intellectual property rights related to or in connection with the Products (including any designs, drawings, specifications, test results, technical descriptions, catalogue, brochures, manuals, and other data, submitted with or in connection with PHIBER Systems’ Offer or resulting from the performance of the Purchase Order by PHIBER Systems) is the property of PHIBER Systems. No license is granted by PHIBER Systems on the Products under these Terms and Conditions.
11.2. The Customer shall refrain from infringing upon PHIBER Systems’ intellectual property rights (as defined Section 11.1) and shall not destructively test, disassemble, radiograph, reverse engineer, or otherwise analyze any Products without PHIBER Systems’ prior written consent.
11.3. In the event Products are developed and/or manufactured in accordance with plans, drawings, and specifications provided by the Customer, the Customer shall hold harmless PHIBER Systems against any and all claims and damages resulting from alleged or actual infringement of any industrial or intellectual property rights of a third party.
11.4. Customer shall promptly notify PHIBER Systems of any intellectual property claim related to the Products and shall give PHIBER Systems any assistance and information requested by PHIBER Systems for the defense of such intellectual property claim.
11.5. Unless otherwise agreed in writing, specific tooling designed and produced to manufacture Products designed by PHIBER Systems according to Customer’s specifications shall remain PHIBER Systems’ exclusive property.
Any information, data, and know-how disclosed by PHIBER Systems shall at all times be treated by the Customer as strictly confidential and shall not without PHIBER Systems’ prior written consent (i) be used by the Customer for any other purpose than the use of the Product and/or (ii) be communicated to third parties.
13.1. Force Majeure means any events beyond Parties’ control including without limitation strikes or other labor disturbances; inability to obtain fuel, material, or parts; delays in transportation; repairs to equipment; supplier’s failings; fire; or accident.
13.2. Should either party be prevented from performing its obligations by reason of Force Majeure, then such party shall not be liable for such nonperformance and its obligations shall be suspended for the duration of the Force Majeure event.
These Terms and Conditions shall be governed by the laws of Florida without making reference to its conflict of law provisions. Any action shall be brought by the parties within the exclusive jurisdiction of the State and Federal courts located in the State of Florida. Nothing in this paragraph shall limit the right of PHIBER Systems to bring proceedings in any other courts of competent jurisdiction to the extent permitted by applicable law.
15.1. Customer shall not offer, promise, or give any undue pecuniary, bribes, or other advantage for any reason, whether in dealings with governments or the private sector. Customer will not violate or knowingly permit anyone (including but not limited to its affiliates or employees) to violate any applicable laws, including without limitation anti-corruption laws, such as those of local, state, federal, domestic, or international including but not limited to the provisions of the OECD Convention on combating Bribery of Foreign Public officials in International Business Transactions.
15.2. Customer undertakes the Products shall not be sold directly or indirectly to any country/person if it is in violation of export control or economic sanctions laws or regulations. The Customer shall also ensure its sub-distributors and agents will comply with such laws. PHIBER Systems shall be excused from performance of any contractual obligation to the extent that such performance is prohibited under any export control or sanctions laws and regulations, without any liability what so ever.
15.3. Customer shall procure that any third parties to whom the products from PHIBER Systems will be supplied are under the same obligations as set out in this Section 15 such that all third parties down the supply chain, as far as the end-user, are under the same strict compliance obligations.
15.4. PHIBER Systems may perform unannounced audits at any time to validate whether Customer is in compliance with the provisions of this Compliance and Export Control section.
Depending on the equipment purchased and the Customer’s application, PHIBER Systems may require the Customer to purchase customized training to be taught by PHIBER Systems personnel. Customer will be responsible for ongoing training of their personnel on the operation and maintenance of the PHIBER Systems System. PHIBER Systems will provide additional training events for the Customer as needed at an agreed upon price.
PHIBER Systems offers technical support. Post system acceptance, training, and documentation delivery, gratuitous engineering support will be limited to four (4) hours per week. Support in excess of four (4) hours related to items deemed non-warranty will be billed to the Customer by PHIBER Systems. PHIBER Systems will track support related labor using its Trouble Ticket process. These tickets can be shared with the Customer as documentation / justification of engineering support.
18.1. Modification: PHIBER Systems reserves the right, at any time, to make any technical improvements of the Products subject to an increase of price.
18.2. Waiver: No failure or delay by PHIBER Systems or by the Customer in exercising any of its rights under these Terms and Conditions shall operate as a waiver thereof nor shall any single defective or partial exercise thereof preclude any other or further exercise of that or any other right.
18.3. Assignment: The Purchase Order shall not be assigned nor transferred by the Customer without the prior written consent of PHIBER Systems.
18.4. Amendment: Any modification to the Purchase Order shall be made only in writing and duly signed or acknowledged by PHIBER Systems and Customer.
18.4.1 PHIBER Systems can revise these Terms and Conditions without notice to the Customer.
18.5. Nullity: If any provisions of these Terms and Conditions are declared null and void, the validity of the other provisions shall not be affected.
Stay connected and receive PHIBER news and updates.
PHIBER Systems, Inc. © All rights reserved
