PHOENIX PREMIUM PERFORMANCE GENERAL TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS AND CONDITIONS: Buyer’s submission of an order for any of the products or services provided by Phoenix Premium Performance or any of their affiliates (McCleskey Saw and Machine LLC, Precision Gin Works, Phoenix Gin Saws LLC, and Brown and Coker LLC doing business as ‘Humphrey Coker Machinery’) (collectively referred to herein as “P3”) shall constitute acceptance by Buyer of the Terms and Conditions contained herein (the “Terms and Conditions”), which shall control the transactions between P3 and Buyer. These Terms and Conditions shall not be superseded by any provisions that may be contained in any purchase order or other documentation that may at any time be submitted to P3 by Buyer unless specifically agreed to in writing by P3. Any resulting contract is for the benefit of the parties hereto and not for any other person. Buyer may not delegate its performance, or assign or transfer its rights or obligations under these Terms and Conditions, without express written consent of P3.
2. ACCEPTANCE OF ORDER: A machinery order, whether on P3’S regular order form or purchase order from Buyer, is not binding upon P3 until accepted in writing by a designated official of P3. Parts and service orders may be placed and accepted by both written and oral agreement between the Buyer and local P3 branch offices. Once accepted by all parties, the machinery order, purchase order, or contract, together with all attachments thereto, and these Terms and Conditions shall constitute the entire contract for the sale and purchase of the goods, articles, equipment, materials and services agreed to in the aforementioned documents (the “Goods”).
Unless otherwise expressly stated in the contract, quotation, or pro forma invoice, P3’s quoted prices do not include sales, use, customs fees, excise, or any other international, federal, state, or local taxes. Buyer shall be liable for any such levies. Failure by P3 to collect any such taxes from Buyer with the initial invoiced amount shall not constitute a waiver of P3’s right to bill and collect from Buyer subsequently for such taxes. Buyer shall comply with all governmental laws and regulations and shall secure all necessary approvals, if any, applicable to the delivery, use, and sale of the products and systems and any other conduct contemplated by Buyer’s purchase of the products and systems.
3. CANCELLATION: Machinery and spare parts orders may not be cancelled by Buyer after material has been purchased or manufacturing has begun, except upon express agreement of Buyer to pay for all expenses incurred by P3, all as determined by P3.
4. PAYMENT/COLLECTION: Buyer agrees to make prompt payment of invoices due in accordance with the terms stated on the order. Any remaining balance outside the payment period will be carried at the lesser of the rate of 1½% per month (18% per annum), or the maximum rate allowed by law. In the event Buyer fails to pay for any one shipment when same becomes due, or should Buyer’s account become otherwise delinquent, P3 may, at its option, either terminate this contract or refuse to ship or deliver goods under this or any other order(s) until such delinquency is cured without prejudice to other rights P3 may possess. P3 shall retain a security interest in the Goods until payment in full has been made, and Buyer shall inform P3 of the location of the Goods until payment in full is made for the Goods.
“Payment in full” shall include all amounts due to P3 from Buyer that are related to the Goods, including, but not limited to, the price of the Goods themselves, and all taxes, customs charges, delivery charges, late payment fees or penalties, and any and all other amounts owed by Buyer to P3 in any manner associated with the Goods.
5. LIABILITY: P3 will in no event be liable to or otherwise responsible to any other party hereto or any beneficiary hereof for any loss of profits, or incidental, indirect, consequential, special, exemplary or punitive damages that arise out of or relate to this agreement or the performance or breach hereof or otherwise and whether in contract, tort, strict liability, or other legal theory. Such damages include, but are not limited to: loss of profits; loss of savings or revenues; loss of use of the items ordered or any associated equipment; cost of capital; cost of any substitute equipment, facilities, or services; downtime; the claim of third parties, including customers of Buyer; injury to property; and injury to persons.
P3 makes no representation that any Goods supplied hereunder comply with any particular safety standard or Buyer’s particular requirements. It is the responsibility of Buyer/ultimate end user to determine the need for and to furnish all guards, safety features in the electrical circuitry and controls, and other safety devices necessary to ensure the safety of Buyer’s employees, Buyer’s customers, and the general public, and to comply with all applicable federal, state, and local laws and regulations.
Buyer agrees to indemnify and forever hold harmless P3 against any and all claims, actions, or demands by any third party whomsoever, asserting breach of warranty, products liability, or personal injury arising as a result of the use and operation of said equipment.
The Buyer/ultimate end user shall be responsible at all times for the safe operation of the Goods provided hereunder and agrees to indemnify and hold harmless P3 against all claims, actions, or demands arising out of personal injury or property damage caused by failure to operate said Goods in accordance with the operating instructions furnished by P3, prudent operating practices, or by the alteration, elimination, or failure to use safety devices furnished by P3 or generally recommended for the use of such Goods. Buyer/ultimate end user shall indemnify and forever hold harmless P3 Corporation against any and all claims, actions, or demands arising out of personal injury or property damage.
P3’S total liability for any and all losses and damages arising out of any cause whatsoever (whether such cause be based in contract, negligence, strict liability, other tort, or otherwise) shall not exceed the purchase price of the Goods with respect to which such cause arises. Buyer agrees to indemnify P3 against any claims in excess of this amount.
6. DELIVERY (SHIPMENT): Delivery by P3 of the aforesaid Goods under this contract is completed when the Goods are made available to the Buyer or Buyer’s agent in accordance with the Incoterms stated in the contract, quotation, or pro forma invoice. P3 reserves the right to make partial shipments and to render invoices on partial shipments.
All shipments are Ex-Works, or point of manufacture, unless otherwise clearly specified in the contract. In case the contract price includes freight charges, the freight charges are not guaranteed unless the material is routed by P3, and if the Buyer specifies a routing which increases the cost of freight, the difference shall be paid by the Buyer.
Shipment dates are approximate and are based upon prompt receipt from Buyer of down payment, confirmation of order financing, and all necessary information and approval of drawings.
7. SHIPPING CLAIMS: For Goods, machinery and/or parts, any claims for short shipment, loss, or damage during shipment must be made within thirty (30) days of receipt of the goods.
8. WARRANTY: Warranty applicable for Goods is limited to the following: machinery and parts are warranted to be of good material and to perform as designed if properly maintained and operated by a competent operator, provided, however, the warranty for Goods not manufactured by P3 is limited to the warranty provided by the manufacturer thereof. Failure of any article named herein to comply with the aforesaid warranty shall in no way affect this contract or notes, contract of sale, or security instruments given in accordance herewith. It is distinctly understood and agreed that the warranty is given upon the following conditions: 1) that the Goods are installed according to directions furnished by the manufacturer; 2) that the Goods are maintained and operated according to the manufacturer’s recommendations and sound engineering principles; 3) that the Goods are not to be integrated with incompatible equipment and/or parts, either by Buyer or a third party; and 4) all terms of the contract, including payment in full, have been fulfilled by Buyer. Any failure on the part of the Buyer to comply with these Terms and Conditions or the requirements of the purchase order or contract shall be held to void all warranties.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, P3 MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE CONDITION OF THE GOODS, PRODUCTS AND SYSTEMS, THEIR MERCHANTABILITY, OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE, AND P3 SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES.
9. MACHINERY WARRANTY PERIOD: P3-manufactured New machinery will be warranted for the duration of: a) the first season of operation, not to exceed 100,000 bales; b) six (6) months after machinery commences commercial operation; or c) twelve (12) months after delivery, whichever occurs first. Used machinery and their components sold as “Reconditioned” will be warranted for the duration of: a) the first 50,000 bales of production; b) three (3) months after machinery is placed in operation; or c) six (6) months after delivery, whichever occurs first. Used machinery and their components sold “As Is” are not warranted, unless otherwise agreed to in writing. All wear parts and/or consumables are covered by the parts and service warranty period found herein.
10. PARTS WARRANTY PERIOD: Warranty for new parts is limited to ninety (90) days from installation of parts . In no case will spare parts be warranted beyond six (6) months of delivery. For wear parts with a typical useful life of less than ninety (90) days under normal operation, the warranty period will be the generally accepted useful life for said parts (as determined solely at the discretion of P3).
11. WARRANTY REMEDY: Subject to the Limitations of Liability outlined in Section 5 above, and the Warranty provisions in Sections 8, 9, and 10, Warranty Remedy is limited exclusively to P3 repairing and/or replacing the affected machine(s) or part(s), or to refunding the price for said machine(s) or part(s), solely at P3’S option. Any Buyer or third-party modifications, alterations, or repairs (actual or attempted) to the machine(s) or part(s), without express written consent from P3, shall void all warranties. P3 shall not be liable for the cost of any unauthorized modifications, alterations, or repairs.
Special-order parts or made-to-order assemblies are not returnable.
12. FIELD CONSULTANT: Unless otherwise expressly stipulated, the equipment shall be erected and commissioned by and at the expense of the Buyer. If the Buyer desires the advisory and technical services of a Field Consultant in connection with the erection, installation, or commissioning of the machinery, or if it is necessary to furnish his services after the machinery is installed, the Buyer shall pay for such services at a mutually-agreed per diem rate. Additionally, Buyer shall pay the Field Consultant’s hotel, traveling, and other necessary expenses, including transportation of tools. Such payments will continue until the Field Consultant’s return to the P3 plant or other equivalent starting point. When Buyer is being assisted by a Field Consultant furnished by P3, whether as part of the proposal or upon special request by Buyer, Buyer shall furnish all necessary skilled and unskilled labor, tools, appliances, and rigging for the safe and proper handling, erection, or operation of the equipment without responsibility or liability on the part of P3. Buyer shall pay premium rates for overtime services on regular workdays and for services on Saturdays, Sundays, or holidays.
13. TECHNICAL DATA: Buyer agrees that P3’S drawings, specifications, operating instructions, and other engineering documents, as well as the information they contain, are the exclusive, “Intellectual Property” of P3 and shall be used only for the purpose of evaluating the P3 proposal or, if the Goods are purchased, for the installation, operation, and maintenance of the installation for which the Goods were purchased.
If any drawings are furnished with a proposal, they are approximate and submitted only to show general style, arrangement and approximate dimensions of machinery offered. Order-specific documentation (machinery plans, foundation and electrical drawings, and machinery-specific supporting documentation/manuals) will be furnished where required after the acceptance of such proposal. No work is to be based on preliminary proposal drawings. Any and all P3 technical data and documentation should remain solely in the possession of the Buyer and should not be provided, either directly or electronically, to any third party without the express written consent of P3. Any and all such Intellectual Property, drawings and other technical data and documentation, in any form, shall be considered P3’S Confidential Information.
14. CONFIDENTIALITY: Buyer agrees that it shall keep strictly confidential all information regarding P3 that Buyer receives as a result of its dealings with P3 (the “Confidential Information”), and Buyer will disclose such information only to those of its officers or employees who need to know such information and shall advise such officers and employees of the confidential nature of such information and the restrictions on its use. Buyer shall not make or permit the disclosure, release or publication of any Confidential Information to any other person or use such information for the benefit of any other person (especially, but not limited to, competitors of P3).
15. FORCE MAJEURE: If P3’S ability to perform its obligations to Buyer is limited, delayed, or prevented in whole or in part by any event or condition not reasonably within the control of P3 or its suppliers, including, but not limited to, acts of God, war, civil strife, labor unrest, transportation delays, pandemics (including the COVID-19 pandemic) or by any law, rule, regulation, order, or any other action of any public authority, P3 shall be excused, discharged, and released of performance to the extent such performance is so limited, delayed, or prevented, without liability of any kind. In the event of any such delay, the date of shipment shall be extended for a period equal to the time lost by reason of the delay.
16. ARBITRATION: Any dispute arising out of or relating to these Terms and Conditions or the transactions to which they apply shall be submitted to binding arbitration in a single-arbiter proceeding to be conducted in Albany, GA using the commercial rules of the American Arbitration Association applying the laws of the State of Georgia unless a different location and set of arbitration rules are agreed upon in writing by all parties subject to the arbitration proceeding.
17. ATTORNEYS’ FEES: Buyer shall reimburse P3 for any and all attorneys’ fees arising from or related to enforcement of these Terms and Conditions, including, but not limited to, attorneys’ fees arising from any collection efforts for past due amounts owed to P3 by Buyer.
18. CONTROLLING LAW: These Terms and Conditions shall be governed by Georgia law without giving effect to any conflicts of law principles of Georgia.