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SALES TERMS AND CONDITIONS
ALL ORDERS ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW, AS WELL AS THOSE APPEARING ON ANY ACKNOWLEDGMENT FORM OR INVOICE RECEIVED BY THE CUSTOMER FROM VORNE INDUSTRIES. ANY CONFLICTING OR ADDITIONAL TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT FURNISHED BY THE CUSTOMER SHALL NOT BE BINDING ON VORNE INDUSTRIES, UNLESS SPECIFICALLY ASSENTED TO IN WRITING BY VORNE INDUSTRIES, REGARDLESS OF THE ORDER OF RECEIPT OF VORNE INDUSTRIES' AND THE CUSTOMER'S RESPECTIVE DOCUMENTS. THE CUSTOMER'S ACCEPTANCE OF DELIVERY OF GOODS SHALL BE CONCLUSIVE EVIDENCE OF THE CUSTOMER'S ASSENT HERETO.
1. PRODUCTS AND SERVICES
These terms and conditions govern the sale of all products ("Products") and/or services and service deliverables (collectively referred to as "Services") by PhantomHobby.com or Armlet Technology, Inc. ("Seller") and apply notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other document or communication ("Purchase Order") from Customer. These terms and conditions may only be waived or modified in a written agreement signed by an authorized representative of Seller. Neither Seller's acknowledgment of a Purchase Order nor Seller's failure to object to conflicting, contrary or additional terms and conditions in a Purchase Order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
2. PRICE OR QUOTATIONS TO GOVERN
Seller agrees to provide the Products or Services at the price as stated on our web site or in its proposal or quotation. Customer shall pay Seller the price(s) stated on Seller's web site or in its proposal or quotation in the proposal or quotation plus the shipping and transportation charges, and applicable taxes, if any, are additional unless otherwise specified in the proposal or quotation. Prices shall apply for the period specified on our web site at the time placed order or in the proposal or quotation. All orders are subject to acceptance by Seller. Upon acceptance, no order may be cancelled or rescheduled without Seller's consent, which consent may be given by Seller in its sole discretion.
Sales tax of 8.25% is applied to all California residents unless we have your reseller agreement. For Services such as out of warranty repair, Seller may condition acceptance upon Customer's prior execution of a repair agreement relating to Seller's repair cost.
3. PAYMENT
Payment methods Accepted: VISA, MasterCard, American Express, Discover, and E-Check via Paypal, an Ebay company. All orders will be paid in full before they are processed. No personal checks or business checks will be accepted. We don't accept orders with International Credit Cards, and we don't sell to international customers.
4. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS
Inspection and acceptance of Products shall be Customer's responsibility. Customer is deemed to have accepted the Products unless written notice of rejection is received by Seller within thirty (30) days after delivery of the Products. Customer waives any right to revoke acceptance thereafter. Customer shall report any discrepancy in shipment quantity or damage within seven (7) days after delivery. No return of Products shall be accepted by Seller without a Return Material Authorization ("RMA") Number, which may be issued by Seller in its sole discretion. Returned Products must be in original manufacturer's shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Customer, freight collect. Shipping fees, handling fee, and/or return shipping costs are Non-Refundable.
5. FORCE MAJEURE
Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including but not limited to acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller's time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Customer.
6. SELLER'S LIMITED WARRANTY FOR PRODUCTS
Seller warrants to Customer that upon delivery to Customer the Products purchased hereunder shall conform to the applicable manufacturer's specifications for such Products and that any value-added work performed by Seller on such Products shall conform to applicable Customer's specifications relating to such work. Seller makes no other warranty, express or implied, with respect to the Products. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. With respect to Products which do not meet applicable manufacturer's specifications and with respect to value-added work by Seller which does not meet applicable Customer's specifications, Seller's liability is limited, at Seller'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 Seller, along with acceptable evidence of purchase, within thirty (30) days from date of invoice, transportation charges prepaid. Seller shall transfer to Customer whatever transferable warranties and indemnities Seller receives from the manufacturer of the Products, including any transferable warranties and indemnities respecting patent infringement.
7. SELLER'S LIMITED WARRANTY FOR SERVICES
Seller warrants to Customer that (a) Services will be performed by qualified personnel in a professional, workmanlike manner, consistent with the prevailing standards of the industry; and (b) it will use commercially reasonable efforts to perform the services in a timely fashion responsive to Client's reasonable requests. Seller makes no other warranty, express or implied, with respect to Services. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE SUITABILITY OR FITNESS OF SERVICES FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. In the event of a breach of this warranty, Customer's sole and exclusive remedy and Seller's sole liability shall be to use its commercially reasonable efforts to correct the error or condition causing breach of this warranty, without additional charge to Client.
8. LIMITATION OF LIABILITIES
CUSTOMER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer's recovery from seller for any claim shall not exceed Customer's purchase price for the product or $5000, whichever is less, giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty, or otherwise. Seller shall not be liable for and Customer shall indemnify, defend and hold seller harmless from any claims based on seller's compliance with Customer's designs, specifications or instructions, or modification of any products by parties other than seller, or use in combination with other products.
Customer assumes all responsibility for product and service selection. Customer affirms that the performance of the product is affected by many factors unique to their environment, over which Seller has no insight or control, such as bandwidth, connectivity methods, protocols in use, running applications, and so forth. Seller is not an insurer; the Customer ("you") will obtain from an insurer any insurance he/she desire(s). The amount you pay us is based upon the products values or for any services we perform. The limited liability we assume under these sales terms is unrelated to the value of your property or property of others located in your premises. In the event of loss or injury, you agree to look exclusively to your insurer to recover damages. You waive all subrogation and other rights of recovery against us that any insurer or other person may have as a result of paying any claim for loss or injury to any other person. You agree that we and our agents, employees, subsidiaries, affiliates and parent companies are exempt from liability for any loss, damage, injury or other consequence arising directly or indirectly from the services we perform or the systems we provide under this contract.
9. EXPORT CONTROLS
The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Customer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
10. RIGHTS IN SOFTWARE
If an order includes software or other intellectual property, such software or other intellectual property is provided by Seller to Customer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.
11. OWNERSHIP OF WORK PRODUCT
For purposes of this Agreement, "Work Product" includes, without limitation, all designs, discoveries, creations, works, devices, models, Service deliverables, inventions, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or developed by Seller alone or with others which result from or relate to the Services performed hereunder. Unless otherwise agreed to in writing by Seller's authorized representative, all proprietary rights, including but not limited to copyright, pertaining to the Work Product shall be owned by Seller. To the extent qualifying for copyright, all Work Product shall be deemed to have been prepared for Seller, and shall not be considered a "work made for hire" within the meaning of the copyright laws of the United States . Customer agrees, at Seller's request and at no expense to Customer, to take such steps, including but not limited to executing any and all papers and instruments, that Seller considers reasonably necessary to effectuate the intent and purpose of this paragraph.
12. GOVERNING LAW; REMEDIES; FORUM SELECTION
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California , excluding any law or principle which would apply the law of any other jurisdiction. Customer agrees that the courts of the State of California , including the federal courts located in the State of California , shall have exclusive jurisdiction over any disputes arising under or relating to this Agreement or its alleged breach, and Seller irrevocably consents to the jurisdiction of those courts. If Customer fails to make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement of its costs of collection, including reasonable attorneys' fees.
13. GENERAL
This Agreement is the complete and exclusive statement of the terms of the Agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to its subject matter. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Seller. Customer's rights, duties, agreements or obligations hereunder may not be assigned or transferred without the prior written consent of Seller; any attempted or purported assignment shall be void. The obligations of Customer shall be binding on its successors and assigns. Seller's waiver of any provision of the Agreement, or of any breach or default, shall not be deemed a waiver of any other provision, nor of any other breach or default. Any provision of this Agreement held unenforceable in any jurisdiction shall not affect the remaining provisions of this Agreement in that jurisdiction, nor the validity or enforceability of such provision in any other jurisdiction.
14. DELIVERY AND TITLE
All shipments of Products by Seller are F.O.B. point of origin and all transportation charges shall be paid by Customer in addition to the price of the Products. Insurance, if desired, shall be responsibility of Customer. Subject to Seller's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Seller unless specified by Customer. Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer's requested delivery dates. Customer acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates. Seller reserves the right to make deliveries in installments. Delivery of a quantity that varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.
15. TAXES
SELLER's prices are inclusive of all federal, state, municipal, or other government excise, sales, use, occupational, gross receipts or like taxes now in force or enacted in the future and, therefore, are subject to an increase by the amount of any such tax. SELLER shall automatically charge and withhold the applicable sales tax for orders to be delivered to addresses within California . Each customer shall be solely responsible for all sales taxes, or other taxes, on orders shipped to any other state.
If a certificate of exemption or similar document is applicable to this transaction which will exempt the sale from sales, use, or a similar tax liability, CUSTOMER will obtain such certificate or document and deliver the same to SELLER on or before the time the purchase is initiated.
