General Terms & Conditions of Sales

PHOENICS ELECTRONICS’ products are offered for sale under the terms and conditions contained herein.

  1. Order Acceptance. Notwithstanding, any terms or conditions on BUYER’s order, PHOENICS ELECTRONICS’ acceptance of any order is expressly made conditional on BUYER’s agreement with the terms and conditions herein, and delivery shall be for BUYER’s convenience only and shall not be deemed or construed to be acceptance of any or all of BUYER’s terms and conditions.

  2. Prices. PHOENICS ELECTRONICS’ published and quoted prices are subject to the following, unless otherwise stated in writing:
    1. All published prices are subject to change without notice.
    2. Shipments will be billed at the prices in effect on the date of acceptance of BUYER’s order
    3. Stenographic and/or clerical errors are subject to correction.
    4. Published or quoted prices do not include taxes, duties or transportation. BUYER shall be responsible for payment of all export and import licenses, custom fees and duties, federal state, local and foreign value-added, excise, sales, use, property and similar taxes, and all other mandatory payments to government agencies of whatever kind, levied in respect to the products sold to BUYER hereunder, except income taxes levied upon PHOENICS ELECTRONICS. If PHOENICS ELECTRONICS is required to pay additional taxes, fees, or other charges, BUYER will reimburse PHOENICS ELECTRONICS for said amount. PHOENICS ELECTRONICS is not liable for reporting, collecting and paying any tax, fee, or other charges imposed upon the BUYER subsequent to the original invoice.
    5. Published and quoted prices are for standard products only and do not include technical data, proprietary rights of any kind, patent rights, etc. or other than PHOENICS ELECTRONICS’ standard tests and normal commercial packaging.

  3. Terms of Payment and Credit. All payments hereunder shall be in U.S. dollars. The standard payment terms, for BUYERs that have been approved in advance for open credit terms, shall be thirty (30) days from date of invoice. Credit terms in excess of 30 days may be made only on an exception basis, and only if approved in advance by the PHOENICS ELECTRONICS accounting department. If open account credit terms have not been approved in advance, payment in advance or a letters of credit will be required prior to shipment. Accounts that have not been paid within the agreed upon payment term are subject to a charge of 2% per month or the maximum interest rate permissible by law, whichever is less, of the overdue payment. Seller and BUYER agree that said sum is a fair and reasonable estimate of the costs that Seller will incur by reason of late payment by BUYER. PHOENICS ELECTRONICS reserves the right to change the credit terms provided herein, when in PHOENICS ELECTRONICS’ opinion the financial condition or previous payment record of BUYER so warrants. If the deliveries are made in installments, each installment shall be separately invoiced and payment due and payable therefore shall be made accordingly. If, in the judgement of PHOENICS ELECTRONICS, the financial condition of the BUYER at any time does not justify continuation of production or shipment on the terms of payment originally specified, PHOENICS ELECTRONICS may require full or partial payment in advance and, in the event of the preceding conditions or of bankruptcy or insolvency of the BUYER or in the event any proceeding is brought by or against the BUYER under the bankruptcy or insolvency laws, PHOENICS ELECTRONICS is entitled to cancel any quantity of product then outstanding, even if acknowledged or in transit to BUYER, and to receive full payment of its cancellation charges. In the event PHOENICS ELECTRONICS exercises any right it may have to stop acknowledged product orders or product in transit because of BUYER S financial condition, PHOENICS ELECTRONICS may at its option resell such articles at public sale without notice to BUYER or at private sale after giving such notice and without affecting PHOENICS ELECTRONICS right to hold BUYER liable for any loss or damage caused by BUYER’S breach.

  4. F.O.B point, Responsibility, Title and Security Interest. A. All sales are F.O.B PHOENICS ELECTRONICS’ point of shipment. All risk of ownership and title passes to BUYER at the time of shipment. B. PHOENICS ELECTRONICS title passes to BUYER and PHOENICS ELECTRONICS liability as to delivery ceases upon making delivery of articles purchased hereunder to the carrier at the shipping point in good condition and the BUYER will be responsible for and bears the entire risk of loss or damage to the products. The carrier of such product acts as BUYER’s agent. BUYER is responsible for filing any necessary claims for loss or damages against the carrier. C. PHOENICS ELECTRONICS hereby reserves a purchase money security interest in the products sold and the proceeds thereof, in the amount of the purchase price. In the event of default by BUYER of any of its obligations to PHOENICS ELECTRONICS, PHOENICS ELECTRONICS has the right to repossess the products sold hereunder without liability to BUYER. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect PHOENICS ELECTRONICS security interests. On the request of PHOENICS ELECTRONICS, BUYER will execute financial statements and other instruments PHEONICS ELETRONICS requires to perfect its security interests.

  5. Delivery. PHOENICS ELECTRONICS reserves the right to make deliveries in installments. Partial shipments will be billed as made and payments thereof are subject to the terms of payment noted above. The delivery of part of any order will not obligate PHOENICS ELECTRONICS to make further deliveries.
    1. Scheduled shipping dates are approximate only. PHOENICS ELECTRONICS may ship up to two (2) weeks in advance of the acknowledged scheduled shipping date.
    2. In the absence of specific shipping instructions, PHOENICS ELECTRONICS will ship by the method it deems most advantageous. Transportation charges will be collect, or if prepaid, will be subsequently invoiced to BUYER. Unless otherwise indicated, BUYER is obligated to obtain insurance against damage to the products being shipped. Unless otherwise specified, products will be shipped in standard packaging. When special or export packaging is requested, or in the opinion of PHOENICS ELECTRONICS, required under the circumstances, the cost of same, if not set forth on the invoice, will be invoiced separately. PHOENICS ELECTRONICS reserves the right in its sole discretion to allocate inventories and current production when in its opinion, such allocation is necessary.

  6. Contingencies. PHOENICS ELECTRONICS shall not be responsible for any liability due to any delay in the performance of any order accepted by it due to unforeseen circumstances or to causes beyond its control, including, without limitation, acts of God, strikes, war, riots, fire, accident, freight embargoes, lock- out of suppliers necessary to the execution of the order, failure or breakdown of components necessary to completion of the order, subcontractor caused delays, or the compliance with any law, regulation or order, whether valid or invalid, or any cognizant government body or any instrumentality thereof, whether now existing or hereafter created. Performance of an order shall be deemed suspended so as long as any such circumstances or causes delay its execution. Whenever such circumstances or cause have been remedied, BUYER shall accept performance under said order. As used herein, performance shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair or replacement. PHOENICS ELECTRONICS may modify specifications or manufacturing processes provided the modifications do not adversely affect the form, fit or function of the products.

  7. Acceptance of Product. Each PHOENICS ELECTRONICS product shall be deemed to have been accepted by BUYER, at shipment, when the risk of ownership and title passes to BUYER, as long as the product meets specifications as set forth in PHOENICS ELECTRONICS’ sales order. Notwithstanding the foregoing, use of said product by BUYER, it agents, employees, or licensees for any purpose shall constitute acceptance of product by the customer.

  8. Limited Warranty. PHOENICS ELECTRONICS warrants each part to be free from defects in material and workmanship under normal use for a period of 90 days from date of shipment (the “Warranty Period”), except for Cavium Networks products, which are warranted for one (1) year from date of purchase by Phoenics Electronics from Cavium Networks. THE FOREGOING WARRANTY IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED; NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE SHALL APPLY. PHOENICS ELECTRONICS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY THER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT. THE FOREGOING WARRANTIES AND REMEDIES ARE FOR BUYER’S EXCLUSIVE BENEFIT AND ARE NOT TRANSFERRABLE. This warranty is the only warranty made by PHOENICS ELECTRONICS with respect to the goods delivered hereunder, and may be modified or amended only by a written instrument signed by a corporate officer of PHOENICS ELECTRONICS and accepted by BUYER. PHOENICS ELECTRONICS does not warrant that the products sold hereunder will operate in combination with other hardware, software, systems or data not provided by PHOENICS ELECTRONICS, except as expressly specified in the documentation provided by PHOENICS ELECTRONICS with its products, or that the operation of the products sold hereunder will be uninterrupted or error-free. Products which at BUYER’s request are delivered without complete encapsulation, testing or are otherwise not finished, are specifically excluded from the warranty set out herein. Prototypes are also specifically excluded from the warranty set out herein. All such products and prototypes are sold as is. All Buyers are required to review and accept PHOENICS ELECTRONICS Prototype Product Limited Warranty prior to purchasing prototype products.

  9. Limitation of Liability.
    1. BUYER shall notify PHOENICS ELECTRONICS promptly within the Warranty Period of any warranty claim with respect to products provided hereunder, and obtain PHOENICS ELECTRONICS’ authorization prior to the return of shipment of products for warranty adjustment. Products returned shall be sent with shipping charges prepaid. When any product is returned for examination and inspection, BUYER must assume responsibility for damage resulting from improper packaging and damage or loss in transit. BUYER shall provide explicit information as to the nature of the claimed defects, operating conditions to which the product had been exposed and any other pertinent information which will enable PHOENICS ELECTRONICS to determine the cause of claimed warranty defects. In all cases, PHOENICS ELECTRONICS has sole responsibility for determining the validity of any warranty claim and sole discretion in determining the nature and extent of adjustment, if any, which the BUYER will be entitled. In the event that a product has been returned without cause and is still serviceable, or that the product was modified, repaired, misused, stolen, vandalized, neglected,mishandled or otherwise damaged subsequent to shipment by PHOENICS ELECTRONICS, BUYER will be notified and the product returned at BUYER’s expense. In addition, a charge for testing, and examination may be made on certain products so returned. BUYER’s sole and exclusive remedies, and PHOENICS ELECTRONICS’ entire liability, with respect to products that are defective or do not operate as warranted will be the correction of the error or defect that caused the breach of warranty or, if PHOENICS ELECTRONICS is unable to make the products operate as warranted, replacement of the defective products, but only if (i) PHOENICS ELECTRONICS has received written notice of the warranty claim within the Warranty Period, (ii) BUYER has returned the affected product units to PHOENICS ELECTRONICS under this Section 9, and (iii) PHOENICS ELECTRONICS has verified that the affected product units are actually defective. PHOENICS ELECTRONICS warrants a replacement or repaired product unit only for the unexpired term of the warranty for the defective product unit.
    3. PHOENICS ELECTRONICS, at its sole discretion, may allow customer to return product. If PHOENICS ELECTRONICS allows a return of product, the following must occur:
      1. An RMA (Return Merchandise Authorization) form must be filled out by customer and sent to PHOENICS’ customer service.
      2. Phoenics will supply an RMA number to the customer. ALL RETURNS REQUIRE A PHOENICS AUTHORIZED RMA#.
      3. All returns have to be received at Phoenics Electronics’ Acton, MA location within 30 days of date of invoice and be accompanied by the original invoice number along with the RMA form.
      4. Returned merchandise must be in original packaging and have been unopened and unused. If returned product, upon inspection by PHOENICS, is determined to have been opened, PHOENICS will return product to the customer, at customer’s cost.
      5. Subject to Phoenics’ approving a return, parts will be subject to a restocking fee of 15%.
      6. Warranted defective merchandise may be returned for new merchandise per the RMA process within 90 days of the original invoice date and must be in original packing.

  10. Cancellations or Rescheduled Shipments. A. No cancellation by BUYER for default will be effective unless and until PHOENICS ELECTRONICS fails to correct such alleged default within ninety (90) days after receipt by PHOENICS ELECTRONICS of a written notice specifying such default. B. If an order previously acknowledged by PHOENICS ELECTRONICS for product described in advanced product descriptions, data sheets or catalogs published by PHOENICS ELECTRONICS or for product described therein and customized in any way for BUYER is cancelled at the request of BUYER, BUYER will pay PHOENICS ELECTRONICS the charges set forth below for any net reduction in unit volume during the time periods set out in the delivery schedule as such volume and schedule had been previously acknowledged by PHOENICS ELECTRONICS. For all product with an acknowledged shipment date between one (1) and ninety (90) days of the date of cancellation, BUYER will pay the full purchase price. C. PHOENICS ELECTRONICS reserves the right to refuse all reschedule requests that are within thirty (30) days from the time of the acknowledged shipment date. All other purchase orders previously acknowledged by PHOENICS ELECTRONICS that the BUYER is requesting be rescheduled, must meet the following conditions: (1) The orders must have an acknowledged shipment date that is outside of thirty (30) days from the time of the reschedule request (2) For orders that have an acknowledged shipment date between thirty-one (31) and ninety (90) days from the time of the reschedule request, the order may be rescheduled out to a maximum of ninety (90) days from the original acknowledged shipment date. However, the BUYER MAY NOT subsequently cancel this order. (3) The orders have not already been previously rescheduled. D. All sales made are final and PHOENICS ELECTRONICS shall not accept return of any product except as expressly outlined in Section 9 above. E. Sale of PHOENICS products marked as prototypes are sold on a non-cancelable, non-returnable basis. Customer assumes all risk of product performance, functionality and reliability.

  11. Patents. PHOENICS ELECTRONICS shall not be liable for any costs or damages, and BUYER will indemnify, defend, and hold PHOENICS ELECTRONICS harmless from any expenses, damages, cost or losses resulting from any suit or proceeding based upon a claim arising from (i) compliance with BUYER’s designs, specifications or instruction; (ii) modification of the product by a party other than PHOENICS ELECTRONICS after delivery by PHOENICS ELECTRONICS; (iii) the use of any product or any part thereof furnished hereunder in combination with any other product, or (iv) the direct or contributory infringement of any process patent using any product furnished hereunder. Sale of any product or any part thereof by PHOENICS ELECTRONICS does not confer upon the BUYER any license under any patent or other intellectual property right. THE FOREGOING STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDY OF EACH PARTY HERETO WITH RESPECT TO ANY CLAIM OF PATENT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT BY ANY PRODUCT OR PART FURNISHED HEREUNDER.

  12. Damages and Liability. PHOENICS ELECTRONICS’ products are not designed for use in life support equipment where malfunction of a PHOENICS ELECTRONICS product can reasonably expect to result in personal injury. PHOENICS ELECTRONICS customers using or selling PHOENICS ELECTRONICS product for use in life support equipment do so at their own risk and agree to full indemnify PHOENICS ELECTRONICS for any damages resulting from such use. Under no circumstances will PHOENICS ELECTRONICS be liable for incidental, consequential or resulting loss or damage, of any kind, howsoever caused. In no event will PHOENICS ELECTRONICS be liable for any sum greater than the purchase price received by PHOENICS ELECTRONICS for the product(s) which are the subject of any claims or dispute. The liability to third parties for bodily injury, including death, resulting from Seller’s performance shall be determined in accordance with applicable law and the total liability limitation stated above shall not be construed as a limitation on Seller for damages for any bodily injury, including death, nor shall such liability limitation be construed as a limitation on Seller for damages caused by Seller’s fraud or willful injury to the person or property of another.

  13. Assignment. PHOENICS ELECTRONICS may assign all or any part of its rights and/or obligations hereunder to any PHOENICS ELECTRONICS subsidiary or an authorized distributor without BUYER’s prior consent. Otherwise, neither party shall delegate any obligations hereunder or assign any interest or rights without the prior consent of the other.

  14. Import and Export Controls. Any and all obligations of PHOENICS ELECTRONICS to provide products, as well as technical assistance, shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Regulations issued by the Department of Commerce, Bureau of Export Administration. Without in any way limiting the provisions of the Agreement, BUYER agrees that it will not export, re-export or transship, directly or indirectly, any of the products or technical data sold or disclosed to BUYER in violation of U.S. export laws and regulations.

  15. Controlling Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties. The Federal and state courts within the State of Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. BUYER hereby expressly consents to (i) the personal jurisdiction of these federal and state courts within Delaware, and (ii) service of process being effected upon it by registered mail sent to the address set forth at the beginning of the Agreement.

  16. Injunctive Relief. BUYER acknowledges that PHOENICS ELECTRONICS’ confidential information is unique property of extreme value to PHOENICS ELECTRONICS, and that the unauthorized use or disclosure thereof would cause PHOENICS ELECTRONICS irreparable harm that could not be compensated by any monetary damages. Accordingly, BUYER agrees that PHOENICS ELECTRONICS will be entitled to injunctive and preliminary relief to remedy any actual or threatened unauthorized use or disclosure of PHOENICS ELECTRONICS confidential information.

  17. Professional Fees. In any suit or proceeding, relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal.

  18. Notice. Any notice, request, demand or other communication required or permitted hereunder will be in writing and will be deemed to be properly given upon the earlier of (a) actual receipt by the addressee, (b) five (5) business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (c) two (2) business days after being sent via private industry courier to the parties’ respective addresses.

  19. Entire Agreement. This Agreement is intended as the complete and exclusive statement of the agreement between PHOENICS ELECTRONICS and BUYER and supersedes all prior agreements and negotiations relating to the subject matter hereof. No modifications of, additions to, or deletions from these terms shall be binding upon either party unless accepted in writing by an authorized representative of each. A waiver by PHOENICS ELECTRONICS of any default by BUYER shall not be deemed to be a continuing waiver or a waiver or any other default but shall apply solely to the instance to which the waiver is directed. BUYER hereby acknowledges that he has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein. PHOENICS ELECTRONICS and BUYER each represent that the individual signing this Agreement on its behalf has the power and authority to enter into this Agreement and that this Agreement constitutes a valid and binding obligation to each party. The terms and conditions herein are separate from and not intended to modify, nor be modified by, the terms and conditions of that certain Software License Agreement by and between PHOENICS ELECTRONICS and BUYER.

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