STANDARD TERMS AND CONDITIONS OF SALE OF PHILLIPS INDUSTRIES, INC.
1. STANDARD TERMS AND CONDITIONS OF SALE OF PHILLIPS INDUSTRIES, INC. The following are the standard terms and conditions of sale (“Terms and Conditions”) in respect to all products of Phillips Industries, Inc. (“Phillips”). These Terms and Conditions are effective as of the date of delivery hereof to Phillips’s customer. Customer shall be deemed to have accepted these Terms and Conditions upon the earlier to occur of receipt hereof or customer’s acceptance of any product or service referenced herein.
2. EXCLUSIVE TERMS AND CONDITIONS OF SALE. Together with any Phillips document into which these Terms and Conditions may be incorporated, these Terms and Conditions represent the exclusive terms and conditions of sale of Phillips’ products to customer. If customer has submitted any offer in any form or by any means, including a purchase order, setting forth customer’s own terms and conditions, then, unless customer assents to these Terms and Conditions, Phillips’ delivery of these Terms and Conditions to customer shall constitute a rejection of customer’s offer as reflected in customer’s terms and conditions. If customer treats these Terms and conditions as a “counter offer,” customer may accept the counter offer only on the Terms and Conditions here set forth, and terms and conditions contained in customer’s acceptance additional to or not identical with the terms of the “counter offer” (viz., these Terms and Conditions) will not become part of the agreements between customer and Phillips. Further, Phillips’ failure to expressly object to any provisions contained in any purchase order or other communication from any customer shall not be construed as either a waiver of these Terms and Conditions, or an acceptance of any such provisions on the part of Phillips. The foregoing constitutes notice to the foregoing effect pursuant to Section 2207 of the California Commercial Code.
3. TAXES. Sales or other taxes are not included in any price of any products sold. Applicable state resale certificate must be on file to support exemption from sales tax. Customer shall pay all federal, state, county or other local taxes, levies, duties or assessments, however designated, levied or based, whether upon these Terms and Conditions, the prices hereunder, the services hereunder, or any product or product use, and any taxes or charges in lieu thereof, paid or payable by Phillips with respect to the foregoing, exclusive of taxes based on net income. All personal property taxes assessed or assessable on any product after delivery shall be borne by customer. In the event Phillips is required to pay any such tax, levy, duty or assessment, customer shall forthwith reimburse Phillips.
4. DELIVERY, RISK OF LOSS, ETC.
a. Delivery. Unless Phillips shall have otherwise agreed in writing, any delivery shall be F.O.B. Phillips factory of manufacture. Upon delivery to carrier at point of shipment, customer shall assume all risk of loss or damage, except for loss resulting exclusively from negligence of Phillips, and possession and title to all products shall be deemed to pass to customer. All transportation charges or costs of insurance which may be assessed in connection with all products delivered hereunder shall be in addition to the price and shall be paid by customer.
b. Prepaid Shipping Policy. In respect to any order in excess of $875.00 in case of original equipment service customer, or $1250.00 in case of after-market customer (in each case net of shipping cost) and shipping within 48 contiguous states of U. S., Phillips may agree to pay freight in advance and add to customer’s applicable invoice. Any such arrangement must be agreed by authorized Phillips personnel at or before placement of order. (Any back-order will be shipped prepaid if Phillips had agreed originally that order would ship prepaid.) In respect to any prepaid shipment, Phillips reserves the right to choose the most economical carrier, unless customer specifies carrier at time of order, in which case shipment will be on “freight collect” basis only. Delay or additional receiving or freight handling (redelivery) charges shall be the responsibility of customer.
c. Drop Shipments. Phillips will direct ship orders only to “Ship To” addresses previously authorized by Phillips.
d. Shipping Related Claims. Phillips will only process claims for shipments in which Phillips engaged the carrier and prepaid the freight. All such claims, including damage or short-package claims, must be reported to Phillips’ customer service department at 800-423-4512 or in writing [email protected] within 10 days of receipt of the order.Claims arising from shipments made “freight collect” must be reported directly to applicable freight carrier. Reporting and processing these claims are the sole responsibility of the customer.
5. PRICE, PAYMENT AND SECURITY INTEREST.
a. Price. All prices for products reflected in any documents or instruments delivered to customer essentially simultaneously with these Terms and Conditions supersede all previous price lists. Bulk price items include all discounts. Minimum order is $100.00. All pricing discrepancies must be reported within sixty days of the invoice date. If between the date of any customer order and date of manufacture of any products which are the subject of such order any supplier to Phillips of materials inherent in such products shall increase its prices for such materials in excess of 5%, then Phillips shall have the option of increasing the price of such products commensurately, and customer shall be obligated to such price as revised.
b. Payment Terms. All Phillips invoices shall be due and payable net 30 days from date of invoice. Delinquent amounts shall be subject to interest on the unpaid balance at the lesser of one and one half percent (1 1/2%) per month from original date due, or the highest rate permitted by law.
c. Security Interest. Customer hereby grants to Phillips a purchase-money security interest (or chattel mortgage) in all products sold hereunder, and all proceeds thereof (including cash or accounts receivable) to survive until Phillips receives payment in full for such products. Customer agrees that so as to perfect and maintain Phillips’s security interest Phillips may at will file UCC-1 financing statements in all applicable jurisdictions.
d. Set off; Recoupment. Under no circumstances, from whatever source derived, may customer set-off or recoup any amount which customer asserts that Phillips is, or may become, obligated to pay customer against any amount customer is, or may become, obligated to pay Phillips in connection with any sale of product pursuant to these Terms and Conditions.
6. WARRANTY. THE WARRANTIES PROVIDED IN THESE TERMS AND CONDITIONS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THESE TERMS AND CONDITIONS, ALL OF WHICH PHILLIPS EXPRESSLY DISCLAIMS, INCLUDING THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND/OR THE WARRANTY OF MERCHANTABILITY. Any descriptions, plans or specifications in respect to any products heretofore furnished or shown to customer were intended for the limited purpose of identifying such products, or to generally suggest the nature of such products, and such descriptions, plans or specifications were not intended to serve as a representation or warranty as to the nature or quality of such products or to become a part of the basis for the bargain between customer and Phillips.
a. Products Manufactured by Phillips. Unless otherwise stated to the customer in a writing signed by an authorized officer of Phillips, Phillips’ warranties as to any product sold to a customer shall be as set forthin full at Phillips’ website at http://phillipsind.com/resources/product_policies/north_american_warranty/. Such “Phillips’ Warranties” are hereby incorporated into these Terms and Conditions as though fully set forth herein. It is essential to customer’s interests that customer review the current Phillips’ Warranties, as such are legally binding upon customer. If for any reason customer is unable to gain access to Phillips’ Warranties at the foregoing web address, customer should so inform Phillips without delay, and Phillips shall promptly provide to customer a copy of Phillips’ Warranties by other means. Phillips Warranties are subject to change from time to time and without notice, and accordingly customer is advised to always review the Phillips Warranties as are currently in force.In the event of a claim made pursuant to Phillips Warranties, then at Phillips’s sole election (i) customer shall return the defective product to Phillips and Phillips shall repair or replace the defective item, (ii) customer shall repair the defective product using replacement materials supplied by Phillips, or (iii) Phillips may repair the defective product where it is located. PHILLIPS’S SOLE OBLIGATION UNDER THE WARRANTY SHALL BE WITH RESPECT TO DEFECTIVE PRODUCT ABOUT WHICH PHILLIPS ACTUALLY RECEIVES WRITTEN NOTICE OF DEFECT DURING THE WARRANTY PERIOD. All returns to Phillips are to be in accordance with Section 8 “RETURNS” below, cost of shipment prepaid by customer to the address specified by Phillips. Customer shall be responsible for proper packaging and undamaged arrival of returned products at proper destination. Phillips assumes no responsibility for improper or unauthorized returns. Phillips will in turn prepay shipment to customer of products or materials intended as replacements under this warranty.
b. Product Purchased for Resale. The sole and exclusive warranty for any product purchased by Phillips from another manufacturer for resale to a customer shall be limited to the warranty and warranty period, if any, extended by such manufacturer.
c. Limitation of Warranty. None of Phillips’ Warranties shall extend to any product that has been subjected to misuse for any reason, including operation contrary to Phillips’s printed instructions, neglect, accident, improper installation, application of improper power, improper matching, or to repairs or modifications performed by anyone other than Phillips’ own personnel or outside personnel whom Phillips shall have authorized in writing. PHILLIPS’ WARRANTIES MAY BE ASSERTED ONLY BY CUSTOMER AND NOT BY CUSTOMER’S OWN CUSTOMERS OR ANY OTHER PARTY WITH WHOM PHILLIPS IS NOT IN PRIVITY OF CONTRACT.
d. No Extension of Warranty. In the event that any product or part thereof is replaced or repaired under warranty, the warranty period of all replacement products or parts shall extend only to the date of expiration of the warranty period for the original product sold hereunder.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS SUGGESTIVE TO THE CONTRARY, THE LIABILITY OF PHILLIPS UNDER ANY LEGAL OR EQUITABLE THEORY OF INDEMNNITY OR DAMAGES RELATING TO ANY BREACH OF WARRANTY, ANY DEFECTIVE PRODUCT, OR USE OF ANY DEFECTIVE PRODUCT, SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY CUSTOMER FOR SUCH PRODUCT. IN NO EVENT SHALL PHILLIPS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR LIKE DAMAGES INCLUDING SPECIFICALLY, BUT WITHOUT LIMITATION, LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT PHILLIPS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR THE LIKE, INCLUDING ANY CASE IN WHICH A PRODUCT OF PHILLIPS PURCHASED HEREUNDER CREATES OR CONTRIBUTES TO A VEHICLE OR OTHER PRODUCT REPAIR CAMPAIGN OR RECALL DUE TO A VEHICLE OR OTHER PRODUCT DEFECT OR NON-COMPLIANCE WITH THE UNITED STATES NATIONAL MOTOR VEHICLE TRAFFIC SAFETY ACT OR OTHER SIMILAR FEDERAL OR STATE LAWS.
a. Stock Returns. With its prior approval, Phillips will allow up to one “stock” return per calendar year, not to exceed 5% of the previous year’s net purchases on part of applicable customer. All returns must have prior written approval. Only current catalog items in clean, re-saleable condition may be returned. Obsolete parts will be accepted up to 12 months following the date discontinued in the price sheet. Phillips cannot accept return of custom items, or items older than three years from purchase date. Phillips will not accept any parts with quantity breaks. Non-catalog or custom items are not eligible for return. Phillips will make final determination of the eligibility of parts for credit at the time of receiving inspection..In respect to each such return, customer shall pay a 10% re-stocking charge, and as well shall make an essentially simultaneous order equal to twice the amount (invoice to invoice) of the returned stock. Phillips will credit all returns at the lower of the then current price sheet or price sheet prevailing on date of invoice of oldest items included among returned items. Customer must of course be in current accounts-receivable condition for above “return” policies to apply.
b. General. A written copy from Phillips of the Return Merchandise Authorization (RMA) is required prior returning merchandise. All returns requests must have Phillips’ local sales approval before submitting to our Customer Service representative. All returns must be shipped prepaid to Phillips Santa Fe Springs, CA and have the RMA number clearly and boldly marked on the outside of the shipping container(s) or the shipment may be rejected. No returns shall be accepted after November 30th of the current year.
9. PATENT INDEMITY. With respect to the sale or use of product which is of Phillips’s standard manufacture or design Phillips shall indemnify and hold customer harmless as to the infringement of any valid U.S. patent; PROVIDED, however, that the foregoing shall only be effective if customer immediately gives Phillips written notice of any assertion, claim, action or proceeding for patent infringement, and that Phillips shall have sole and unfettered dominion and control over the defense, including all negotiations or any action that may be brought, including the right to settle any claim or action without consultation with customer. In such connection, upon request customer shall assist Phillips in any reasonable way required by Phillips.
Phillips shall not indemnify customer or hold customer harmless from, and contrariwise customer hereby agrees to indemnify and hold Phillips harmless from, any actual or alleged infringement of the intellectual property or other rights of others based on a combination of product sold hereunder with product of another, or arising out of any product manufactured or sold by Phillips to meet customer’s particular specification.
Should product sold hereunder or the operation thereof become, or in Phillips’s opinion be likely to become, the subject of a claim of infringement of a U.S. patent, Phillips shall at any time and at its option and its expense have the right to avoid or reduce alleged or actual infringement by (a) substituting for such product or a portion thereof other equally suitable replacements, (b) modifying such product or a portion thereof, (c) obtaining for customer the right to continue the use of such product, or (d) taking back such product or a portion thereof and granting customer a credit for the portion taken back, less reasonable depreciation.
10. DEFAULT. Customer shall be deemed to be in default (a) upon failure to comply with any provision of these Terms and Conditions, or the terms set forth in any other documents or instruments delivered to customer essentially simultaneously with these Terms and Conditions, or any other written agreement with Phillips, (b) upon the appointment of a receiver for customer or its business, (c) or should customer become subject to an insolvency proceeding under any bankruptcy act. Upon such default in addition to any other remedies it may have at law or in equity, Phillips may cancel any outstanding order from customer, refuse to make deliveries, and declare all obligations immediately due and payable. In the event of customer’s default customer shall be liable for any expense of Phillips related to retaking, holding, preparing for sale, selling, and the like in respect to any product sold hereunder. Customer waives all claims for damages or trespass arising from any such retaking.
11. CORPORATE IDENTITY AND TRADE MARKS. “Phillips Industries, Inc,” “Phillips,” “Phillips Commercial Vehicle Products Division,” and “Phillips CVP” are all divisions within, or trade styles of, Phillips Industries, Inc. The products offered by these divisions or under these trade styles shall in fact be made by, and may be shipped under the name of, “Phillips Industries, Inc.” (“Names”). Further, CLEAR-VU™, DURACOIL™™, DURAFLEX™, ELECTROLINK™, ISOCOIL™, ISOFLEX™, LECTRACOIL™, LECTRAFLEX™, PERMACOIL™, PERMAPLUG™, POLAR AIR™, POWER GRIP™, and STOW-A-WAY™, are trademarks of Phillips, and QCS®, QCS2®, QWIK-E®, STA-DRY® are registered trademarks of Phillips, all rights in each of which Phillips hereby expressly reserves (“Marks”). Nothing in these Terms and Conditions may be construed as a grant of any license or any other right to use any of the Names or Marks of Phillips for any purpose whatsoever.
a. Force Majeure. Phillips shall not be liable for any delays in performance beyond the reasonable control of Phillips, including fire, flood, epidemic, unusually severe weather, strike, act of God, terror or public enemy, public disorder, act of customer, restriction of civil or military authority in their sovereign or contractual capacities, transportation failure, or inability to obtain labor materials, or manufacturing facilities. In the event of any such delay, delivery shall be appropriately adjusted.
b. Product Maintenance. Phillips shall have no obligation to repair or maintain any product sold hereunder following the warranty period for such product, and then only in accordance with the terms of such warranty.
c. No Waiver of Terms and Conditions. The failure of Phillips to insist upon customer’s strict performance of any of these Terms and Conditions or a delay by Phillips in exercising any of its remedies hereunder shall not constitute a waiver of these Terms and Conditions or a waiver of any default or any remedy.
d. No Implied License. The sale or other furnishing of any product, part, or information (hereafter altogether referred to in this paragraph as “product or service”) by Phillips, or any of its affiliates, is not be construed as any express or implied license, or other grant of rights to use, by implication, course of dealing, estoppel, or otherwise, any patent, know-how, technical data, or other trade secrets or proprietary rights of Phillips, or any of its affiliates, connected in any way to the product or service for any purpose other than that purpose which, as of the date hereof, customer has clearly caused Phillips to understand as the purpose of Buyer in the execution, delivery and performance of these Terms and Conditions.
e. “Product” Defined. The word “product” as used in these Terms and Conditions shall refer to all goods sold pursuant hereto.
f. No Commitment to Continue Manufacture. Phillips makes no promise, express or implied, to continue manufacture and sale for any period any product sold pursuant to these Terms and Conditions. Except in case of a pending customer order or agreement, Phillips expressly reserves the right, in its sole discretion, to cease manufacture and sale of any product at any time, with or without notice to any customer.
g. Applicable Law and Jurisdiction as to Disputes. The laws of the State of California shall govern the interpretation and enforcement of these Terms and Conditions. PHILLIPS AND ALL OTHER PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE PRODUCT SOLD PURSUANT HERETO AND PHILLIPS AND ALL OTHER PARTIES HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL ONLY BE LITIGATED IN SUCH COURTS. The rights and remedies of Phillips hereunder shall be cumulative and in addition to all Phillips’ other rights in law or equity. Failure of Phillips to insist upon strict performance of these Terms and Conditions shall not be deemed a waiver of any rights or remedies that Phillips shall have, and shall not be deemed a waiver of any subsequent default of these Terms and Conditions. Any provision hereof prohibited by law, regulation or ordinance shall be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof. Each of the provisions of these Terms and Conditions shall extend to and shall, as the case may require, bind or inure to the benefit not only of the parties, but also to their respective successors, heirs or assigns, provided this clause shall not permit any assignment of the agreements embodied in these Terms and Conditions without the prior written consent of Phillips. The parties agree that the agreements embodied in these Terms and Conditions are not intended by any party to give any benefits, rights, privileges, actions or remedies to any person, partnership, firm or corporation (other than a party or its permitted assignee) as a third party beneficiary or otherwise under any theory of law.
h. Notices. Any notices provided for hereunder shall be given in writing and transmitted by personal delivery or prepaid first-class, registered or certified mail fully addressed in the case of Phillips to 12012 Burke Street Santa Fe Springs, CA 90670 and in the case of customer at its address most recently lodged with Phillips.
i. Entire Agreement; Amendment. These Terms and Conditions, coupled with the terms and conditions reflected in (i) Phillips’ forms; (ii) acknowledgments, (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit, are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and Phillips, and supersede all other agreements between the parties in connection with the sale of product provided herein. ONLY THE PRESIDENT AND CHIEF EXECUTIVE OFFICER OF PHILLIPS HAS THE POWER AND AUTHORITY TO AMEND, MODIFY OR WAIVE ANY OF THESE TERMS AND CONDITIONS, OR ANY PART THEREOF, AND ANY ATTEMPT BY ANY OTHER OFFICER, ANY AGENT, EMPLOYEE OR REPRESENTATIVE OF PHILLIPS TO DO SO IS EXPRESSLY DISAVOWED BY PHILLIPS AS AN UNAUTHORIZED, ULTRA VIRES ACT, HAVING NO LEGAL FORCE OR EFFECT AND NON-BINDING AS TO PHILLIPS.
j. Attorneys’ Fees. If either party incurs any legal fees, whether or not an action is instituted, in an effort to enforce these Terms and Conditions or to recover damages or injunctive relief for breach of these Terms and Conditions, it is agreed that the successful or prevailing party or parties shall be entitled to reasonable attorneys’ fees, and other costs in addition to any other relief to which such party may be entitled.
k. Assignment. Customer shall not assign any order, or any interest therein, without the prior written consent of Phillips. Any actual or attempted assignment without Phillips’ prior written consent shall entitle Phillips to cancel such order upon notice to customer.
l. No Third Party Benefit. The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
m. EDI Purchase. If Phillips and customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Phillips and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Phillips regarding EDI purchases made by customer shall be deemed to be conclusive.