Terms & Conditions
General Terms and Conditions
Last modified: April 17, 2013
Effective as of the time that the buying party (“Buyer”) orders Product from PHYTEC America LLC and its subsidiary Phytools LLC (collectively “PHYTEC-Phytools”), these General Terms and Conditions (“Terms and Conditions”) shall govern all quotes, sales, purchase orders and agreements between PHYTEC-Phytools 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-Phytools 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 Terms and Conditions herein, those additional, conflicting or ambiguous provisions are expressly rejected and these Terms and Conditions shall supersede them and govern. In the event of a conflict among the Terms and Conditions herein and any other writings from PHYTEC-Phytools, the following documents shall govern in descending order: a) written agreement between PHYTEC-Phytools and Buyer, b) PHYTEC-Phytools Quote, c) these Terms and Conditions, d) other documents issued by PHYTEC-Phytools to Buyer, including on Online Terms of Service.
If Buyer does not accept these Terms and Conditions, Buyer may cancel its order within two (2) business days of the date of PHYTEC-Phytools’ Order Confirmation. If Buyer does not cancel, then Buyer will be deemed to have accepted these Terms and Conditions.
2. Quotes and Purchase Orders
2.1 Purchase Orders issued by the Buyer to PHYTEC-Phytools are legally binding only upon PHYTEC-Phytools’ written confirmation or fulfillment of said orders.
2.2 No agreement between the Parties, including these Terms and Conditions, shall be modified except by a writing signed by both Parties.
3.1 Prices are denominated in U.S. dollars for all transactions made in North America. Prices are inclusive of packing for shipping F.O.B point of shipment and applicable sales tax on the day of accounting.
3.2 Current single unit prices for standard products are available at www.phytec.com. Custom Product pricing, including volume discount pricing, must be obtained from PHYTEC-Phytools in writing.
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 Products passes to Buyer upon delivery of goods by PHYTEC-Phytools to a carrier at point of shipment. Buyer shall be responsible to insure the Products at point of shipment.
5. Terms of Payment
5.1 All payments are denoted and shall be made in U.S. dollars. Payment terms are net 30 days from the later of invoice or date of shipment. Interest shall accrue from the payment due date at 18% per annum.
5.2 Payments will be first applied to interest, then to costs and expenses for which PHYTEC-Phytools is entitled to reimbursement, then to the sales price.
5.3 All taxes, bank, discount, or withdrawal charges are at the expense of the Buyer.
5.4 If the Buyer defaults in payment or otherwise fails to comply with any term herein, PHYTEC-Phytools has the right to demand return, and take possession of all unpaid Products, cease delivery of any further product, and to be reimbursed for all costs occurred in connection with the repossession of said Products. This includes, without limitation, transportation costs and devaluation of Products. Products shall be valued at the invoiced purchase price at the time of return.
6. Security Interest and Resale
Buyer hereby grants to PHYTEC-Phytools a security interest in any delivered Product until PHYTEC-Phytools has received full payment from Buyer. Buyer shall not sell, transfer or assign any Product until Buyer has paid PHYTEC- Phytools in full. Buyer hereby grants PHYTEC-Phytools a security interest in all products of Buyer in which the Product is incorporated or combined. PHYTEC-Phytools’ security interest shall continue notwithstanding a transfer of ownership of the Product by Buyer to a third party, and PHYTEC-Phytools may exercise any and all remedies against such third party as to the Product. Buyer hereby consents to PHYTEC-Phytools’ filing of any documents to perfect any security interest granted herein, without further act of Buyer.
7. Terms of Delivery
7.1 PHYTEC-Phytools can only provide an “estimated delivery date” and cannot guarantee a fixed delivery date. PHYTEC-Phytools shall inform the Buyer in writing of any foreseeable delay in any stated, estimated delivery date.
7.2 PHYTEC-Phytools may deliver Product against Buyer orders in multiple partial shipments.
7.3 Estimated delivery dates, as originally printed in quotes, sales contracts or Purchase Order confirmations, are subject to change due to delays in PHYTEC-Phytools’ receipt of components from suppliers, production errors, strikes, Acts of God, as well as other circumstances that are beyond PHYTEC-Phytools’ control. PHYTEC-Phytools shall promptly inform the Buyer in writing of any such delays, together with a new estimated delivery date.
7.4 PHYTEC-Phytools shall not be responsible for any damages of whatsoever nature caused to Buyer as a result of any delay.
7.5 Buyer shall report missing items and/or damage (“defects”) sustained to Products during shipping in writing within eight (8) calendar days of receiving Products. Buyer shall inspect the Products immediately after delivery and shall inform PHYTEC-Phytools of any defects in writing. Buyer shall return the defective Products to PHYTEC-Phytools pursuant to PHYTEC-Phytools prevailing Return Merchandise Authorization (RMA) procedures. If Buyer fails to notify PHYTEC-Phytools as stated herein, then Buyer shall be deemed to have accepted the Product.
8. Cancellation of Delivery
8.1 Subject to Section 8.2, Buyer may cancel any order within two (2) business days of the date of PHYTEC-Phytools’ Order Confirmation.
8.2 Buyer shall pay the full purchase price for orders of Products designated by PHYTEC-Phytools as NCNR (Non-Cancelable, Non-Returnable), and orders of Products for which PHYTEC-Phytools has already completed production at the time of Buyer’s written notice of cancellation, unless the Parties otherwise agree.
9. Return Merchandise Authorization
9.1 All elective returns for Product that is not damaged or defective are subject to a 15% restocking charge.
9.2 Returns must be made within thirty (30) days of Buyer’s receipt of original Product, and must be accompanied by a Return Material Authorization (RMA) number issued by PHYTEC-Phytools.
9.3 Shipping charges are non-refundable, and Buyer is responsible for all return shipping costs. However, if PHYTEC-Phytools is in error regarding fulfillment of Buyer’s order, PHYTEC-Phytools will issue an RMA and ship correct Product in exchange for any Product that PHYTEC-PHYTOOLS has shipped in error. PHYTEC-Phytools will not charge Buyer for supplemental shipping charges in such instances.
9.5 PHYTEC-Phytools reserves the right to refuse any RMA returns without an RMA number, with incomplete Product contents or documentation, or if the Products has been altered by the Buyer.
9.6 PHYTEC-Phytools shall issue any credit that is due no later than thirty (30) days following receipt of RMA Products.
9.7 Software and licenses are non-refundable.
10. Hardware Warranties
10.1 PHYTEC-Phytools warrants to Buyer that PHYTEC-Phytools’ Products are free from defects in material and workmanship, under normal use and service. Buyer shall promptly notify PHYTEC-Phytools in writing of any malfunction in any Products under Warranty, which notification and return to PHYTEC-Phytools of Product under Warranty shall be pursuant to PHYTEC-Phytools’ prevailing Return Merchandise Authorization (RMA) procedures. PHYTEC-Phytools’ obligation under this warranty shall be limited to replacement or repair of Products, free of charge, F.O.B. point of manufacture for which a defect has been substantiated by PHYTEC-Phytools, for a period of twelve (12) months from date of Product shipment from PHYTEC-Phytools to Buyer.
10.2 PHYTEC-Phytools 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- Phytools’ control.
10.3 Removal of the unique serial number adhesive label on hardware Products shall void any warranty.
10.4 PHYTEC-Phytools makes no warranty for Products furnished, but not manufactured by PHYTEC-Phytools, which Products shall be covered by the warranty of the original manufacturer.
10.5 PHYTEC-Phytools does not warrant the sale of used or reconditioned hardware
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.)
11. Software Warranties
SOFTWARE IS PROVIDED “AS IS”. PHYTEC-PHYTOOLS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITHRESPECT 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-PHYTOOLS 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-PHYTOOLS EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. IN NO CASE SHALL PHYTEC-PHYTOOLS BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES FOR BREACH OF ANY WARRANTY, WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED AS TO SOFTWARE.
12. ACKNOWLEDGEMENT REGARDING HIGH RISK ACTIVITIES
Buyer acknowledges that the Products provided by PHYTEC-Phytools 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 Products could lead or reasonably be expected to lead to death, injury or severe environmental damage (“High Risk Activities”). PHYTEC-Phytools 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-PHYTOOLS, 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-PHYTOOLS OR OTHERWISE, occurring as a result of the use or incorporation of the Product in any High Risk Activity.
13. Limitation of Liability
PHYTEC-Phytools’ liability is limited to damages not to exceed the original purchase price of the Product purchased from PHYTEC-Phytools by Buyer. PHYTEC-PHYTOOLS HEREBY DISCLAIMS AND EXCLUDES ANY LIABILITY FOR ANY CONSEQUENTIAL OR OTHER DAMAGES RESULTING FROM ANY REASON WHATSOEVER. THIS EXCLUSION AND LIMITATION APPLIES TO ALL LEGAL THEORIES UNDER WHICH DAMAGES MAY BE SOUGHT. IN NO EVENT WILL PHYTEC-PHYTOOLS BE LIABLE TO BUYER FOR ANY LOST PROFITS, LOST SAVINGS OR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF BUYER’S USE OR INABILITY TO USE THE PRODUCT, OR THE BREACH OF ANY WARRANTY OR TERM HEREIN.
14. Parameters of Use
14.1 Buyer shall not copy, modify, reverse assemble, deconstruct, or reverse engineer any Product, without the advance written consent of PHYTEC-Phytools. PHYTEC-Phytools may withhold this consent, in PHYTEC- Phytools’ sole and absolute discretion.
14.2 Reproduction of PHYTEC-Phytools software without the express written consent of PHYTEC-Phytools is allowed solely for the purposes of Buyer’s internal use or for backup.
15. Ownership of Technical Information and Intellectual Property
PHYTEC-Phytools 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-Phytools 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 software Product object and source code shall be defined in any applicable PHYTEC-Phytools Software End User Licensing Agreements (“EULA”) between Buyer and PHYTEC-Phytools.
16. 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.
17.1 PHYTEC-Phytools shall not be deemed to have waived any rights under these Terms and Conditions unless such waiver is given in writing and signed by PHYTEC-Phytools. No delay or omission on the part of PHYTEC-Phytools in exercising any right shall operate as a waiver of such right or any other right. If the Buyer breaches any provision of these Terms and Condition, PHYTEC-Phytools may refuse further delivery of any Product without affecting any other legal rights or remedies PHYTEC-Phytools may have.
17.2 In the event any provision of these Terms and Conditions 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 Terms and Conditions or any other document executed by the Parties, which shall continue in full force and effect.
17.3 Buyer may not assign its rights and obligations with PHYTEC-Phytools unless PHYTEC-Phytools consents in writing, in advance. Any such transfer without the written consent from PHYTEC-Phytools shall be null and void.
17.4 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- Phytools’ sole election, unless the Parties agree otherwise in a writing signed by the Parties.