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Phantom Products Terms and Conditions

Customer Terms and Conditions

 

These terms and conditions are subject to change without prior written notice at any time, in Phantom Products, Inc.’s sole discretion. Customer accepts these terms and conditions if Customer either does not object within five (5) business days, accepts delivery of Product or Service, or accepts invoices and statements from Phantom Products, Inc., whichever is earlier.

 

1. Orders. A Phantom Products, Inc. sales order (“Order”) will be initiated by Customer issuing a purchase order signed by an authorized customer representative (“Purchase Order”) or with verbal approval of a Phantom Products, Inc. Estimate or Quote. No Purchase Order, written or otherwise, nor Customer’s terms and conditions of purchase shall affect or vary these terms and conditions. Orders are subject to Phantom Products, Inc.’s acceptance and to these Terms and Conditions. The Purchase Order will identify the Products, unit quantities, part numbers, descriptions, applicable prices, requested delivery dates, shipping instructions, bill-to and ship-to addresses, tax exempt certifications, if applicable, and any other special instructions. All orders are subject to written approval by an authorized officer of Phantom Products, Inc.; no salesperson is authorized to bind Phantom Products, Inc. Customer requests to cancel an order may be accepted by Phantom Products, Inc. in its sole discretion, which acceptance may be subject to Customer’s accepting a reasonable cancellation charge determined in writing by Phantom Products, Inc. Customer requests to reschedule the delivery time of Product are subject to acceptance by Phantom Products, Inc. in its sole discretion. Orders may not be canceled or rescheduled after delivery by Phantom Products, Inc. to the carrier. Customer may not cancel orders for Non–Standard Products. Non–Standard Products include, without limitation, products which are special orders, custom orders, products that do not appear in Phantom Products, Inc. sales literature, products not customarily in stock and products identified as otherwise non–cancelable or non–returnable.

2. Prices. All prices are in U.S. Dollars. Unless otherwise specified, prices are firm for thirty (30) days from the date of quotation. The quotation is subject to change without notice and supersedes any quotations of prior date. If Customer does not purchase the quantity upon which quantity prices are based, Customer will pay the non–discounted price for the quantity actually purchased. Phantom Products, Inc. reserves the right to change the prices and specifications of its Products without notice. Prices for any rescheduled deliveries may be increased by Phantom Products, Inc. in the event of an increase in Phantom Products, Inc.’s prices prior to the rescheduled delivery date or causes beyond Phantom Products, Inc.’s reasonable control. All tariffs, import and export duties, and similar imposts and taxes on the Products, whether now existing or hereafter imposed or modified, and all manufacturers’ taxes, use taxes, sales taxes, or taxes or duties of any nature whatsoever which may be assessed, shall be added to the invoice price and shall be paid by Customer; in the event Phantom Products, Inc. is required to pay any such tax or duty, the Customer shall reimburse Phantom Products, Inc. therefore on demand or, in lieu of such payment, shall provide Phantom Products, Inc. at the time the Purchase Order is submitted with exemption certificates or other documents acceptable to taxing or customs authorities.

3. Terms of Payment. (a) Payment terms for customers provided open credit terms is net fifteen (15) days from date of invoice. Orders are subject to credit approval by Phantom Products, Inc., which may in its sole discretion at any time change or cancel the terms of Customer’s credit or require advanced payment, payment by official bank check, or letter of credit. At Phantom Products, Inc.’s option, export orders may be subject to special export payment terms and conditions. If Phantom Products, Inc. reasonably believes that Customer’s ability to make payments is impaired, Phantom Products, Inc. may cancel any order or remaining balance thereof, and Customer will remain liable to pay Phantom Products, Inc. for Products already shipped. Customer will submit such financial or other credit information as Phantom Products, Inc. may reasonably require for determination of credit terms. (b) Checks or other forms of payment are accepted subject to collection and the date of collection will be deemed the date of payment. Any check or other form of payment received from Customer may be applied by Phantom Products, Inc. against any obligation owing by Customer to Phantom Products, Inc. under this or any other agreement, regardless of any statement appearing on or referring to such check or other form of payment, without discharging Customer’s liability for any additional amounts owing by Customer to Phantom Products, Inc. The acceptance by Phantom Products, Inc. of such check or other form of payment will not constitute a waiver of Phantom Products, Inc.’s right to purse the collection of any remaining balance. (c) Customer will pay the entire net amount of each invoice from Phantom Products, Inc. pursuant to the terms of such invoice without offset or deduction. Invoices not paid when due will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law. If Customer fails to make payment when due, Phantom Products, Inc. may pursue any legal or equitable remedies, in which event Phantom Products, Inc. will be entitled to reimbursement for collection costs and reasonable attorneys’ fees. A default in any payment by Customer after delivery may at the option of Phantom Products, Inc. is deemed a default in the entire Agreement. Upon such default or breach of this Agreement by Customer, Phantom Products, Inc., at its option, by giving notice in writing to Customer of its election to do so, may cancel this Agreement and such other Agreements as may exist between Customer and Phantom Products, Inc., and/or without giving notice to Customer may defer shipment or delivery until such default or breach is cured and/or may cancel any undelivered portions of this or such other orders and/or may demand immediate payment of all outstanding bills of the Customer and/or may delay or refuse acceptance of new Orders from the Customer. (d) Customer agrees that any credit 00balances issued will be applied within one (1) year of its issue. If not applied or requested within one (1) year any balance remaining will be subject to cancellation and Phantom Products, Inc. shall have no further liability.

4. Installments. Delivery of Product may be in installments. A default in any payment by Customer after delivery or offer of delivery of any part of an installment may at the option of Phantom Products, Inc. is deemed a default in the entire Agreement. Upon such default or breach of this Agreement by Customer, Phantom Products, Inc., at its option, by giving notice in writing to Customer of its election to do so, may cancel this Agreement and such other Agreements as may exist between Customer and Phantom Products, Inc., and/or without notice to Customer may defer shipment or delivery until such default or breach is cured and/or may cancel any undelivered portions of this or such other orders and/or may demand immediate payment of all outstanding bills of the Customer and/or may delay or refuse acceptance of new Orders from the Customer. In the event of any cancellation by Phantom Products, Inc., Phantom Products, Inc. shall have the right to recover damages against Customer by reason of Customers default or prior breach of this Contract and may sell all or any part of the undelivered Product without notice to Customer, at public or private sale, holding Customer liable for any damage or financial loss resulting to Phantom Products, Inc. by reason of Customers default or breach.

5. Delivery and Title. (a) Phantom Products, Inc. will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery date(s). Customer acknowledges that delivery dates provided by Phantom Products, Inc. are estimates only and that Phantom Products, Inc. will not be liable for failure to deliver on such dates. Selection of the carrier and mode of delivery will be made by Phantom Products, Inc. unless specifically designated by Customer. (b) All Shipments by Phantom Products, Inc. are F.O.B. shipping point (Phantom Products, Inc.’s facility in Melbourne, Florida, USA) and the amount of all transportation charges from Phantom Products, Inc.’s facility shall be paid to Phantom Products, Inc. by the Customer in addition to the purchase price of the Products. Subject to Phantom Products, Inc.’s right of stoppage in transit, delivery to a carrier will constitute delivery to Customer, and risk of loss will thereupon pass to Customer; however, title shall remain in Phantom Products, Inc., until payment by Customer in full for the Products and any and all other outstanding indebtedness to Phantom Products, Inc. whatsoever. Phantom Products, Inc. shall not be responsible for any loss, damage or delay during transportation. (c) Claims for shortages and damage must be made to carrier within ten (10) days after delivery. (d) Products invoiced and held by Phantom Products, Inc. at Customer’s request will be held at Customer’s risk and expense.

6. Design Changes. Phantom Products, Inc. reserves the right to make changes in the design of the Product if such changes, in Phantom Products, Inc.’s sole judgment, tend to improve the performance or otherwise benefit the Product.

7. Product or Service Discontinuance. Should Phantom Products, Inc. elect to discontinue, curtail or limit a product or service as a result of the application of any governmental statute, regulation or order, including but not limited to any statute, regulation or order applicable to prices, transportation, energy, pollution or product safety, which in Phantom Products, Inc.’s judgment, will render the production or marketing of such product economically, technologically or commercially infeasible, Phantom Products, Inc. may, without penalty or other charge, terminate this agreement with respect to such product upon thirty (30) days prior written notice to Customer.

8. Special Jigs, Dies or Tools. Regardless of any charges made for special jigs, dies or tools, such items remain the property of Phantom Products, Inc. unless otherwise specifically agreed. They may be disposed of when, in Phantom Products, Inc.’s opinion, they have become obsolete.

9. Limited Warranty and Limitation of Liabilities. Phantom Products, Inc. warrants to Customer that Products purchased hereunder will be free of defects in material and workmanship for the warranty period of one (1) year from the date of original shipment of the Product. Any Product repaired or replaced under warranty is only warranted for the period of time remaining in the original warranty for the Product. The warranty provided herein shall extend to any Product which has proved defective and has failed through normal use, but excludes and does not cover any Product or parts thereof which has been accidentally damaged, disassembled, modified, misused, identification label removed or device unsealed, used in applications which exceed the Product specifications or ratings, neglected or improperly maintained, improperly installed or otherwise abused or is used in hazardous activities. Phantom Products, Inc. reserves the right to modify its warranty at any time, in its sole discretion. All Products, which are experimental Products, prototypes or Products used in field trials, are not warranted. Phantom Products, Inc. makes no other warranty, express or implied, with respect to the Products. IN PARTICULAR PHANTOM PRODUCTS, INC. MAKES NO WARRANTY RESPECTING THE MERCHANTIBILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Upon Phantom Products, Inc.’s confirmation of a defective Product, Phantom Products, Inc.’s liability is limited (at Phantom Products, Inc.’s election) to (1) refund of Customer’s purchase price for such Products (without interest), (2) repair of such Products, or (3) replacement of such products; provided, however, that such Products must be returned to Phantom Products, Inc., along with acceptable evidence of purchase, within one (1) year from date of delivery, transportation charges prepaid. Customer must claim under the warranty in writing not later than thirty (30) days after the claimed defect is discovered. CUSTOMER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND PHANTOM PRODUCTS, INC. SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT BEING LIMITED TO, LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS. CUSTOMER’S RECOVERY FROM PHANTOM PRODUCTS, INC. FOR ANY CLAIM SHALL NOT EXCEED CUSTOMER’S PURCHASE PRICE FOR THE PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.

10. Indemnification. Customer shall be responsible for inspecting and testing all products delivered to it hereunder upon receipt and before use by Customer. Customer assumes all responsibility and liability for injury or damages resulting from its handling, possession, use or sale of Products supplied hereunder including, but not limited to any injury or damages resulting from the use of product in Customer’s manufacturing operations or in combination with other products, and agrees to defend and indemnify Phantom Products, Inc. from and against all claims, losses, liabilities and expenses (including attorney’s fees and other litigation or settlement costs) arising out of such handling, possession, use or sale.

11. Product Returns. No return of Products will be accepted by Phantom Products, Inc. without a return material authorization number (RMA No.), which will be issued by the Phantom Products, Inc. Customer Service Department in Phantom Products, Inc.’s sole discretion. The issuance of an RMA No. does not indicate or guarantee that a credit will be issued to Customer or the acceptance of a Customer debit memo. Products must be shipped transportation charges prepaid in original shipping cartons and must be complete with all packing materials and data specification sheets; Product identification and serial number labels must be intact and legible. If returned Products are claimed to be defective, a complete written description of the nature of the defect must accompany all returned Products. All items not eligible for return as determined by Phantom Products, Inc.’s sole discretion will be returned to Customer, transportation collect. Phantom Products, Inc. shall be allowed a reasonable period to investigate a defective Product claim and shall be given access to Customer’s relevant records and data for this purpose. Non-defective Product accepted for credit or exchange may be subject to a reasonable restocking fee and service charge when the error is not Phantom Products, Inc.’s; acceptance of such return will be at the sole discretion of Phantom Products, Inc. Products returned for credit must be returned freight prepaid in a condition identical to the original shipment by Phantom Products, Inc.

12. Confidentiality. If either party hereto receives from the other party written information which is marked “Confidential” and/or “Proprietary” the receiving party agrees not to use such information except in the performance hereof, and to treat such information in the same manner as it treats its own confidential information. Confidential information that is disclosed orally or visually will be confirmed as confidential or proprietary in writing within ten (10) days after such disclosure. The obligation to keep information confidential shall not apply to any such information that has been disclosed in publicly available sources; is in the rightful possession of the party receiving the confidential information without an obligation of confidentiality; or is required to be disclosed by operation of law. Except as otherwise provided herein, the obligation not to disclose shall be for a period of one (1) year after the termination hereof. Customer shall not use the Phantom Products, Inc. name or the name of any of its affiliates in any public statement or publicize the fact the parties are doing business, without the prior written consent of Phantom Products, Inc.

13. Statements and Advice. If statements or advice, technical or otherwise, is offered or given to Customer, such statements or advice will be deemed to be given as an accommodation to Customer and without charge and Phantom Products, Inc. will have no responsibilities or liabilities whatsoever for the content or use of such statements or advice.

14. Publications. Publications describing Phantom Products, Inc.’s products are intended to be typical of design, form factor and performance, but in themselves do not constitute a specific offer to sell in accordance with stated specifications: such publications do not bind Phantom Products, Inc. in any way.

15. Copying or Replicating Products. The Products sold are for Customer’s individual use and may not be copied or replicated. Customer shall be liable for all damages, including loss of anticipatory profits, incurred by Phantom Products, Inc. as a result of such conduct.

16. Force Majeure. Phantom Products, Inc. will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control, including, but not limited to, Force Majeure, acts of God, acts of Customer, strikes, labor disputes, epidemics, floods, quarantine restrictions, civil commotion, war, hostilities, insurrection, riot; rules, law, orders, actions, seizures, requisitions, priorities, preferences, instructions, regulations, restrictions, or actions of any government or any agency or subdivision thereof; casualties, fires, accidents, embargoes, quotas, transportation delays; shortages of labor, materials, fuel, power or transportation facilities; detention of Product by customs authorities, sinking of vessels, loss of Product in public or private warehouses, or inability to procure or delay in procuring materials, goods, labor or manufacturing facilities from Phantom Products, Inc.’s usual sources or in its usual manner. In any such event Phantom Products, Inc. shall have the right to, at its election to and without liability to Customer, to (a) cancel all or portion of this Agreement, or (b) perform this Agreement as so restricted or modified, and Customer shall accept such restricted or modified performance, or (c) perform this Agreement within a reasonable time after the cause for non–performance or delay has terminated. Delay in delivery of any installment shall not relieve Customer of its obligation to accept subsequent deliveries or pay for prior deliveries.

17. Termination. Phantom Products, Inc. reserves the right to cancel an Order in whole or in part at any time by written notice, fax, telex, e-mail or any other electronic means if the Customer fails to comply with any of its Terms and Conditions.

18. Export Trade Compliance. Phantom Products fully complies with all U.S. export control regulations, including the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), Office of Foreign Assets Control (OFAC), Office of Antiboycott Compliance (OAC & IRS), and the National Nuclear Security Administration (NNSA).

As a Term of Sale, Phantom Products requires its customers to use reasonable efforts to cooperate with, and assist, Phantom Products in the correct identification and classification of items provided by the customer or manufactured to customer’s requirements, designs and/or specifications, which may be subject to U.S. export control regulations. If the customer cannot, or will not, make commonly reasonable efforts to assist Phantom Products in the correct identification or classification of items relative to U.S. export control regulations, then the customer hereby indemnifies and holds harmless Phantom Products from any resulting violation and/or penalties which may arise from the inaccurate classification of items and any resulting exports of such items which occurs.

The term “item” (as described above) includes product or hardware, technical data, software, or technology which is subject to any U.S. export regulation. “Item” does not just refer to the physical product itself.

Phantom Products shall not export restricted items without documented proof of a license or agreement from the appropriate U.S. governmental authority, and will follow all terms, conditions and provisos on such license or agreement as a condition of exporting and engaging in business with its customers. Shipment of any restricted items to a sanctioned or embargoed country or restricted party is not permitted nor will be sanctioned by Phantom Products.

Phantom Products employees are required by law to report any violation of the OFAC Regulations to the US Department of Treasury, Antiboycott violations to the Office of Antiboycott Compliance (BIS or IRS) as jurisdiction may require. Phantom Products is committed to lawful reporting of any OFAC or Antiboycott violation.

Phantom Products shall not be liable in any way to customers or third parties for delays caused by licensing issues to the extent such licensing issues arise out of customer’s failure to cooperate with and assist Phantom Products in its efforts to accurately classify items provided by the customer or manufactured to the customer’s requirements, designs and/or specifications.

The customer will also ensure that all company personnel who represent the customer in a visit to Phantom Products will identify their citizenship/nationality. In the event Phantom Products informs customer that restricted items will be involved or accessible on a site visit to Phantom Products’s facility or customer otherwise knows that restricted items will be involved or accessible on a site visit to Phantom Products’s facility, customer will only send personnel on such a site visit who are authorized by the U.S. export regulations to receive and work with restricted items.

19. Electronic Data Interchange. If Phantom Products, Inc. and customer have mutually agreed to use an Electronic Data Interchange (EDI) system to facilitate purchase and sale transactions, customer agrees: that it will not contest (a) 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 (b) 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. Phantom Products, Inc. and Customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use proper security procedures to protect EDI records from improper access. The business records maintained by Phantom Products, Inc. regarding EDI purchases made by Customer shall be controlling.

20. General. (a) The Terms and Conditions may not be modified or cancelled without Phantom Products, Inc.’s written agreement. The sale of Products hereunder will be governed by the Terms and Conditions, notwithstanding contrary or additional terms and conditions in any purchase order, planning schedule, acknowledgement, confirmation or any other form or document issued by either party effecting the purchase and/or sale of Products. (b) No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party without the prior written consent of the other. The obligations, rights, terms and conditions hereof will be binding upon and inure to the benefit of the parties hereto and their successors and assigns. (c) The waiver of any breach of any term, condition or covenant hereof or default under any provision hereof will not be deemed to constitute a waiver of any other term, condition, or covenant contained herein or of any subsequent breach or default of any kind or nature. (d) If any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions in any hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. (e) The Terms and Conditions will be governed by and construed in accordance with the laws of the State of Florida and all the applicable laws of the United States. Customer will not directly or indirectly export, re-export, sell or transfer any Product to any country for which an export license or other government approval is required without first obtaining all licenses and other approvals. (f) In the event of inconsistency between any term of this agreement and any translation into another language, the English language meaning shall control. (g) Any and all disputes or controversies arising under, out of or in connection with this agreement or the sale or performance of the Products shall be resolved by final and binding arbitration in Florida under the rules of the American Arbitration Association. The arbitrators shall have no power to add to, subtract from or modify any of the terms or conditions of this contract.