Standard Terms and Conditions for Acceptance of Purchase Orders
Last modified: June 15, 2015
Standard Terms & Conditions for Acceptance of Purchase Orders
(hereafter, "Standard Terms") shall apply to all purchase orders or
other Supply Arrangements (hereafter defined) submitted by any customer
("Buyer") of PHYTOOLS LLC (“PHYTOOLS”) regardless of the form or
medium of Buyer’s purchase order. These Standard Terms shall govern all
quotes, invoices, purchase orders and agreements (“Supply Arrangements”)
between 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 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 Standard Terms
herein, those additional, conflicting or ambiguous provisions are
expressly rejected and these Standard Terms shall supersede them and
govern. In the event of a conflict among the Standard Terms herein and
any other writings from PHYTOOLS, the following documents shall govern in
descending order: a) written agreement between PHYTOOLS and Buyer, b) PHYTOOLS Quote, c) these Standard Terms, d) other documents issued by PHYTOOLS to Buyer.
2. Quotes and Purchase Orders
Quotes from PHYTOOLS are subject to change until they are issued in
writing and are valid for thirty (30) days, unless withdrawn.
2.2 Quotes are not to be construed as an obligation to sell.
Purchase Orders issued by the Buyer to PHYTOOLS are legally binding
only upon written confirmation or fulfillment by PHYTOOLS.
3. Pricing and Releases
Prices are denominated in U.S. dollars for all transactions made
in North America. Prices are inclusive of packaging for shipping F.O.B
point of shipment.
3.2 Applicable prices shall be those prices
quoted by PHYTOOLS to Buyer and contained in Buyer’s purchase order
accepted by PHYTOOLS. Pricing shall apply to the quantity indicated on the
accepted purchase order. The price quoted shall apply only if the
quantity ordered on the accepted purchase order is released and shipped
within a period of time not to exceed twelve (12) months.
If significant fluctuations occur at any time in the cost of PHYTOOLS’
Product due to market increase in fuels, materials, raw materials,
equipment, labor, political risk or other production costs, PHYTOOLS shall
notify Buyer in writing. Within ten (10) days of the notification, the
Parties will review the impact of such fluctuations and shall mutually
agree to an adjustment to the Product price arising therefrom for
Products whose costs are affected by such fluctuations and have not yet
been manufactured or delivered.
4. Shipping and Transport Insurance
Product shall be shipped F.O.B. point of shipment. Title in, the right
of possession, and risk of loss to the Product passes to Buyer upon
delivery of goods by PHYTOOLS to a carrier at point of shipment. Buyer
shall be responsible to insure the Product at point of shipment.
5. Delivery and Acceptance
5.1 PHYTOOLS will use commercially reasonable efforts to deliver Product
pursuant to a mutually agreeable delivery schedule; however, delivery
dates are approximate and PHYTOOLS assumes no liability for delivery
delays for any reason.
5.2 Buyer shall inspect the Product
immediately after delivery and shall inform PHYTOOLS of any missing items
and/or damage (“defects”) in writing within eight (8) calendar days of
receiving Product. If Buyer fails to notify PHYTOOLS, then Buyer shall be
deemed to have accepted the Product.
6. Payment Terms
All payments are denoted and shall be made in U.S. dollars.
Payment terms are net thirty (30) days from the date of shipment.
Interest shall accrue from the payment due date at 18% per annum.
Payments will be first applied to interest, then to costs and
expenses for which PHYTOOLS is entitled to reimbursement, then to the
6.3 All taxes, bank, discount, or withdrawal charges are at the expense of the Buyer.7. Cancellation
Buyer may cancel orders for PHYTOOLS Product that is generally
available, non-custom, stocked and other such standard product
categories as defined by PHYTOOLS (collectively “Standard Product”), only
if PHYTOOLS receives a written cancellation within two (2) business days
of PHYTOOLS' order confirmation to Buyer.
7.2 Buyer may cancel
orders for non-standard, built-to-order, custom, semi-custom, unique to
a customer and other such special product categories as defined by PHYTOOLS (collectively “Special Product”), only if PHYTOOLS receives a
written cancellation notice not less than ninety (90) days prior to the
Buyer’s scheduled delivery date. Buyer shall remain liable for all
non-recoverable costs associated with cancellation incurred by PHYTOOLS,
including all non-transferable and non-cancellable raw materials and
work in process.
7.3 Buyer may not cancel Product designated as Non-Cancellable and Non-Returnable (“NCNR”).
7.4 PHYTOOLS may terminate any Supply Arrangement, including open or
continuing purchase orders: (i) on reasonable ten (10) day notice to
Buyer, for any or no reason, or (ii) immediately, if Buyer fails to
timely pay for goods delivered or services rendered, breaches any of its
other obligations under any Supply Arrangement, violates or refuses to
abide by or acknowledge these Standard Terms, or threatens any of the
foregoing. Termination in accordance with this clause shall not affect PHYTOOLS' right to pursue any other available remedies.
may reschedule the shipment date only if written notice is provided to PHYTOOLS. For Standard Product, the notice must be provided no less than
thirty (30) days prior to the current PHYTOOLS planned shipment date as of
the date of the notice. For Special Product, the notice must be
provided no less than ninety (90) days prior to the current PHYTOOLS
planned shipment date as of the date of the notice. For each shipment,
only one (1) reschedule is allowed; the rescheduled shipment date must
be within thirty (30) days of the current PHYTOOLS planned shipment date.
9.1 Buyer may not request changes to Standard Products or to Products designated as NCNR.
Buyer may request changes to Special Products only if PHYTOOLS
receives a written change request not less than ninety (90) days prior
to the Buyer’s scheduled delivery date. PHYTOOLS shall use reasonable
efforts to respond in writing with the impact of such requested change,
including but not limited to cost, manufacturing and delivery
schedules. PHYTOOLS shall, in its sole discretion, have the right to
accept or reject any change request. Buyer shall be liable for all
non-recoverable costs associated with a change order incurred by PHYTOOLS,
including all non-transferable and non-cancellable raw materials and
work in process not consumed after the change.
shall notify Buyer of changes impacting Product form, fit, or function
via a Product Change Notification (PCN). For Standard Products, lack of
acknowledgement of the PCN within thirty (30) days constitutes
acceptance of the change. For Special Products, having a controlled Bill
of Materials, PHYTOOLS may only implement Changes with written approval
9.4 PHYTOOLS disclaims any liability for any
BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED
SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR
INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OF ANY KIND caused by Buyer failure to accept
PCN’s in a timely manner.
9.5 PHYTOOLS shall provide notice of
Product discontinuance to Buyer in a timely manner to enable Life Time
Buys, or other reasonable continuation of supply, of impacted Products.
10. Hardware Warranties
10.1 PHYTOOLS warrants to Buyer that PHYTOOLS' Product is free from defects
in material and workmanship, under normal use and service. Buyer shall
promptly notify PHYTOOLS in writing of any defective Products under
10.2 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 PHYTOOLS' control.
10.3 Buyer’s removal of the unique serial number adhesive label on hardware Products shall void any warranty.
10.4 PHYTOOLS does not warrant the sale of used or reconditioned hardware.
Buyer shall return any Products with defects to PHYTOOLS pursuant to PHYTOOLS prevailing Return Merchandise Authorization (RMA) procedures at www.phytools.com. PHYTOOLS' obligation under its Warranty herein shall be
limited to either (at PHYTOOLS' election) a credit to Buyer’s account for
such Products or replacement or repair of Products, free of charge, for
which a defect has been substantiated by PHYTOOLS, for a period of twelve
(12) months from date Buyer receives Product shipped from PHYTOOLS.
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
11. Software Warranties
IS PROVIDED “AS IS”. PHYTOOLS MAKES NO WARRANTIES, EITHER EXPRESS OR
IMPLIED, WITH RESPECT 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. 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. PHYTOOLS EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. IN NO CASE
SHALL 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
acknowledges that Product provided by 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 Product could lead or
reasonably be expected to lead to death, injury or severe environmental
damage (“High Risk Activities”). PHYTOOLS SPECIFICALLY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
further HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE 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 PHYTOOLS OR OTHERWISE, occurring as a result of the use or
incorporation of the Product in any High Risk Activity.
13. Limitation of Liability
PHYTOOLS' liability is limited to damages not to exceed the original purchase
price of the Product sold to Buyer by PHYTOOLS. TO THE FULLEST EXTENT
PERMITTED BY LAW, PHYTOOLS HEREBY DISCLAIMS AND EXCLUDES ANY LIABILITY FOR
ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS,
ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER
DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. PHYTOOLS' MAXIMUM
CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES,
INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL
NOT EXCEED THE COST OF THE PRODUCT GIVING RISE TO THE CLAIM OR
LIABILITY. THIS EXCLUSION AND LIMITATION APPLIES TO ALL LEGAL THEORIES
UNDER WHICH DAMAGES MAY BE SOUGHT. PHYTOOLS DISCLAIMS ALL LIABILITY
RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT
REQUIRED OF PHYTOOLS HEREUNDER. CONSEQUENTIAL OR OTHER DAMAGES RESULTING
FROM ANY REASON WHATSOEVER.
PHYTOOLS assumes no liability for any
damages or costs associate with the integration, installation or
incorporation (“Use”) of the PHYTOOLS Product with equipment of materials
not provided by PHYTOOLS. Buyer agrees that is bears all liability for
such Use of the PHYTOOLS Product, including but not limited to
qualification; conformance; and functional, environmental and use case
14. Intellectual Property
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 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 any software Product object and source code shall be
defined in any applicable PHYTOOLS Software End User Licensing Agreements
(“EULA”) between Buyer and PHYTOOLS.
15. Parameters of Use
Buyer shall not copy, modify, reverse assemble, deconstruct, or
reverse engineer any Product, without the advance written consent of PHYTOOLS. PHYTOOLS may withhold this consent, in PHYTOOLS' sole and absolute
15.2 Reproduction of PHYTOOLS software without the
express written consent of PHYTOOLS is allowed solely for the purposes of
Buyer’s internal use or for backup.
16. Export Controls
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.
Buyer shall provide a Washington Reseller Permit to PHYTOOLS if PHYTOOLS
delivers Product to Buyer for integration in Buyer’s own product for
resale and Buyer is (a) an out of state business with a business nexus
in the State of Washington; (b) a registered business in the State of
Washington; or (c) a resident individual of the State of Washington. No
sales tax shall be assessed if Buyer is (a) an out of state individual
or (b) out of state business without a registered business nexus in the
State of Washington, in which case Buyer should provide a Uniform Sales
and Use Tax Exemption Certificate at time of Buyer’s initial purchase
17.2 PHYTOOLS' prices do not include sales, use, excise,
customs, value-added or similar taxes. Buyer will pay or reimburse PHYTOOLS for all such taxes as may be applicable or provide PHYTOOLS with
acceptable tax exemption certificate. Buyer indemnifies PHYTOOLS against
any costs or losses, including attorney fees, arising from any improper
designation of tax status.
No modification, amendment, rescission, waiver or other change to
these Standard Terms shall be binding unless agreed to in writing by PHYTOOLS.
18.2 No delay or omission on the part of PHYTOOLS in
exercising any right shall operate as a waiver of such right or any
18.3 Buyer may not assign its rights and
obligations with PHYTOOLS unless PHYTOOLS consents in writing, in advance.
Any such transfer without the written consent from PHYTOOLS shall be null
18.4 In the event any provision of these Standard
Terms 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 Standard Terms or any other document
executed by the Parties, which shall continue in full force and effect.
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 PHYTOOLS' sole election, unless the Parties agree
otherwise in a writing signed by the Parties.