TERMS OF SALE
1. General Application of Terms. All products, merchandise, goods and/or services (collectively “PHASE 3 USA Products”) sold by Phase 3 USA Inc. (“PHASE 3 USA”) are sold pursuant the Terms of Sale (“Terms”) set forth below, except solely to the extent that, in respect of a specific sale, the Terms are modified in writing signed both by PHASE 3 USA and by the Buyer. In placing an order with PHASE 3 USA, buyers agree to be bound by the Terms.
2. Payment. All PHASE 3 USA Products are to be paid for, in full prior to shipment, by cash, good check (subject to collection) or by Visa or MasterCard. No credit terms shall be available unless the buyer shall have submitted, and PHASE 3 USA shall have accepted a credit application upon PHASE 3 USA’s standard form then in effect. All credit sales shall be subject to the Terms.
3. Delivery. All shipments of PHASE 3 USA Products shall be made at the buyer’s expense, and are made F.O.B. PHASE 3 USA’s Loading Dock, Peekskill, New York, with bills of lading addressed to Buyer. PHASE 3 USA shall choose the carrier and the mode of shipment, unless the buyer requests in writing an alternative carrier and/ or mode of shipment and makes arrangements satisfactory to PHASE 3 USA for the payment of freight and other shipment costs. Any chargebacks to PHASE 3 USA after using a carrier account supplied by Buyer shall result in a $25 surcharge in addition to the amount of the chargeback.
4. Identification and risk of loss. The PHASE 3 USA Product shall be identified to the contract, and risk of loss shall pass to Buyer when the goods are placed in the hands of the carrier.
5. Limited One-Year Warranty; Limitations of Liability. PHASE 3 USA warrants to its customers that for a period of one year from delivery, PHASE 3 USA Products will be free of defects in material and workmanship under normal use. In the event that a defect in any PHASE 3 USA Product is discovered within the one-year warranty period, then the customer must notify PHASE 3 USA in writing within thirty (30) days of discovering the defect or before expiration of the one-year warranty period, whichever shall occur first. PHASE 3 USA shall have the option to repair or replace the PHASE 3 USA Product or any of its components solely to the extent that PHASE 3 USA deems it necessary to remedy the defect. Any incidental costs, including without limitation, the cost to ship the defective PHASE 3 USA Product or affected components to PHASE 3 USA, or to such other repair facility as Motion Laboratories, in its discretion, may designate, shall be the responsibility of the buyer.
This warranty shall not apply, and PHASE 3 USA shall have no obligations hereunder upon the occurrence of any of the following: (a) if the PHASE 3 USA Product is subject to any use for which it was not intended; (b) if the PHASE 3 USA Product is modified in any way by any party other than PHASE 3 USA; or (c) if any party other than PHASE 3 USA attempts to repair or replace any defect in the PHASE 3 USA PRODUCT or in any Component THEREOF.
To the fullest extent permitted by applicable law, this Warranty shall be for the exclusive benefit of the buyer with which or with whom Motion Laboratories is in privity of contract and shall not inure to the benefit of any third party whatever. Under no circumstances shall PHASE 3 USA be liable to any person or business entity, including the buyer, under any cause of action including, but not limited to, those based upon contract, negligence, breach of warranty or tortious conduct, for direct, indirect, incidental, or consequential damages, including any claims for lost profits.
THE ABOVE IS THE ONLY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING ALL PHASE 3 USA PRODUCTS , INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILTY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTIES IMPLIED BY LAW ARE HEREBY EXPRESSLY DISCLAIMED.
6. Compliance with Law. Buyers shall comply with all applicable domestic or international laws, statutes, regulations, and ordinances regarding the use of any PHASE 3 USA products.
7. Indemnity. All buyers agree to indemnify and hold harmless PHASE 3 USA, and (as applicable) its affiliates, officers, directors, agents, and employees from any claim, demand, cause of action, or suit, including, without limitation, incidental costs and reasonable attorney’s fees, whether arising at law or in equity, arising out of or in connection with the buyer’s use of any PHASE 3 USA products, or the buyer’s violation of any law or the rights of any third party.
8. Unpaid Balances. Title to PHASE 3 USA Products do not pass until PHASE 3 USA has received payment in full. Buyers expressly consent that PHASE 3 USA may take such action to protect its interests, including the filing of a Financing Statement, entering upon the Buyers property to repossess the PHASE 3 USA Products upon the Buyers’ payment default, or as otherwise permitted by applicable law, including, without limitation, Articles 2 and 9 of the Uniform Commercial Code. Unpaid balances incur interest of 18% per annum, or such lesser amount as might correspond to the highest rate permitted by applicable law and Buyers shall be liable for all costs of collection, including collection costs and legal fees.
9. Acceptance of Goods. All PHASE 3 USA Products shall conclusively be deemed to have been accepted by the Buyer, unless PHASE 3 USA receives written notice to the contrary no later than five (5) business days from the date of delivery. In the event that the Buyer properly rejects non-conforming or defective goods, or rightfully revokes its acceptance thereof, the Buyers sole remedy shall be the return of the purchase price following the Buyers return of the affected PHASE 3 USA Products to PHASE 3 USA.
10. Merger Clause. These Terms, and the Terms of all documents incorporated herein by reference, constitute the fully integrated expression of the terms of sale, and supercede any prior agreements, written or oral, between the parties with respect to the subject matter hereof. These Terms may not be waived or modified by subsequent Buyer purchase orders or other documentation, but only in a writing signed by an authorized PHASE 3 USA representative.
11. Choice of Law. These Terms, and any and all legal issues that may arise between PHASE 3 USA and any Buyer shall be governed by the substantive laws of the State of New York.
12. Forum Selection. Any dispute arising out of or in connection with the PHASE 3 USA Product shall be adjudicated exclusively in the Supreme Court of the State of New York, County of Westchester.
