Terms and Conditions

Effective as of May 15, 2017

1. ACCEPTANCE OF TERMS.

All sales of Phononic Devices, Inc. (“Phononic”) Evolve Products (“Products”) furnished by Phononic to the party purchasing Products from Phononic (“Buyer”) are made pursuant to the terms and conditions (the “Terms”) set forth herein. To the extent of any conflict between these Terms and any terms and conditions provided by Buyer, including any pre-printed purchase order terms and conditions, these Terms shall take precedence and any conflicting or additional terms and conditions provided by Buyer are hereby rejected.
For purposes of these Terms, the terms “we,” “us” and “our” refer to Phononic. “You” refers to you, as a Buyer.

BEFORE YOU CHECK THE BOX STATING “I HAVE READ AND AGREE TO THESE TERMS AND CONDITIONS”, PLEASE CAREFULLY READ THE TERMS.  BY CHECKING THE BOX, YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY IN ALL RESPECTS WITH THESE TERMS.  IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT CHECK THE BOX.

IF YOU ARE ACCEPTING THE TERMS ON BEHALF OF YOUR EMPLOYER OR OTHER ORGANIZATION, THE TERM “BUYER” SHALL BE DEEMED TO INCLUDE SUCH EMPLOYER OR ORGANIZATION. YOU REPRESENT, WARRANT AND UNDERTAKE THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH EMPLOYER OR ORGANIZATION TO THESE TERMS.

2. ORDERS.

You may place orders for Products through the Phononic website available at http://www.evolvewinevault.com (the “Phononic Site”). When placing an order through the Phononic Site, we may ask you for your name, e-mail address and other information so that we can fulfill your order. When you place an order, Phononic’s third-party payment service provider will collect your credit card details and charge your credit card account in connection with the order, and you agree to make all applicable payments in connection with any order placed by you. Phononic does not view or store your credit card information. To learn more about our credit card processing vendors and their respective privacy and other policies which apply when you make a payment through their services, please review the policies on their site. By placing an order, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed. For all pre-orders, your credit card will not be charged until the Products are shipped to you.

3. ACCEPTANCE; SHIPPING.

All Products shall be delivered Ex Works at Phononic’s named origination point. All scheduled shipment dates are estimates only. Phononic will use reasonable efforts to meet the scheduled shipment dates but will not be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery. For all pre-orders, Phononic will send you an e-mail when Phononic ships the Product. All Products shall be deemed irrevocably accepted upon delivery. Title and risk of loss shall pass to Buyer upon delivery. Phononic reserves the right to make partial deliveries, and the Order shall be severable as to such installments. Products may be used or refurbished (which for clarity does not affect Buyer’s rights under the warranty in Section 7).

4. PRICES; PAYMENT.

The prices for the Products are listed on the Phononic Site and do not include shipping and handling charges. . Buyer shall bear, in addition to the purchase price, the amount of any freight, insurance, handling, customs duties and other duties levied on the shipment of Products and all sales, use, excise or other similar taxes levied on the purchase of Products. All prices are set forth in U.S. Dollars.

5. RETURNS AND REFUNDS

If you place an order for a Product that is a pre-order, you may cancel your pre-order with no penalty anytime until fourteen (14) days prior to the scheduled shipment date indicated in your order confirmation email. Orders may not be cancelled within fourteen (14) days of the scheduled shipment date. In addition, we offer a 30-day money back guarantee. If you are not completely satisfied with the Product you can return it within thirty (30) days of the shipment date to request a full product refund (less shipping and handling charges and taxes paid, which are not refundable). All Products must be returned in good physical condition accompanied by the original invoice and product packaging. Phononic will reimburse Buyer for the cost of transporting the Products to Phononic; such payment may be based on standard carrier tariffs and may not reflect the actual transportation costs. Products shall be returned to Phononic per provided instructions. Buyer shall bear all risk of loss or damage to returned Products while in transit. Refunds will be processed and paid within thirty (30) days of Phononic’s receipt of a returned Product satisfying the above conditions.

Credit will be issued to the payment method or credit card used for your original purchase only.

6. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIAL INFORMATION.

Phononic and its licensors and suppliers own and shall retain exclusive ownership of all intellectual property rights in and relating to the Products. All drawings, diagrams, specifications, documentation, pricing information, technical information, and other materials and information furnished by Phononic relating to the use and service of the Products (“Confidential Information”) are confidential and proprietary to Phononic. Such materials have been developed at great expense and contain trade secrets of Phononic. Buyer may not reproduce or distribute such materials except, if you are entering into these Terms on behalf of your employer or other organization, such employer or organization may distribute the materials to its employees who use the Products as part of their duties. Buyer shall exercise reasonable care to hold such information in confidence and in no event less care than Buyer exercises to protect Buyer’s confidential information. Buyer may only use such information for purposes of installing and operating the Products as specified by Phononic. In no event shall Buyer reverse engineer any Product or attempt to decompile or otherwise decipher the source code of any software contained in a Product.

7. LIMITED WARRANTY.

(a) Phononic warrants that (i) the parts (other than the heat pump) and labor of the Products, as delivered shall, for a period of two (2) years from delivery, and (ii) the heat pump of the Products, as delivered shall, for a period of seven (7) years from delivery (each relevant period, the “Warranty Period”), conform in all material respects to the applicable Phononic specifications. For any material breach of the foregoing warranty, Phononic shall, at its option, refund the purchase price, or repair or replace the nonconforming Products, provided written notice of nonconformance is received by Phononic within the Warranty Period. Nonconforming Products shall be, with Phononic’s prior written authorization, returned to Phononic per provided instructions within the Warranty Period. Buyer shall bear all risk of loss or damage to returned Products while in transit. Phononic reserves the right to examine any alleged non-conformance and perform a failure analysis to determine if the alleged non-conformance is a result of breach of the foregoing warranty. Upon verification by Phononic that the Products do not conform to this warranty, Phononic will reimburse Buyer for the cost of transporting the Products to Phononic; such payment may be based on standard carrier tariffs and may not reflect the actual transportation costs. The foregoing states Phononic’s sole and exclusive obligation and Buyer’s sole and exclusive remedy for breach of the foregoing warranty. In the event no defect or breach of warranty is discovered by Phononic upon receipt of returned Products, the Products will be returned to Buyer at Buyer’s expense and Buyer will reimburse Phononic for the transportation charge, labor, and associated charges incurred in testing the allegedly defective Products.
Any repair or replacement provided to Buyer will not extend the Warranty Period for the Products.

(b) The warranty under this Section 7 shall only be applicable to the original purchaser of a Product and not to any subsequent owner of a Product. Given the variability in testing equipment and testing methodologies, Phononic cannot and does not warrant that its Products will deliver any particular results when tested by Buyer or a third party testing agency. The foregoing warranty shall not apply to Products that Phononic determines have been installed, tested or operated in a manner other than specified by Phononic in the applicable specification and reference design provided by Phononic, or have been the subject of mishandling, misuse, neglect, improper repair, alteration, damage, assembly, or processing that alters physical or electrical properties, or damaged in transit.

(c) DISCLAIMER OF WARRANTY.
EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH ABOVE, PHONONIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. This warranty shall not be enlarged, and no obligation or liability shall arise out of Phononic’s rendering of technical advice, facilities or services in connection with the delivery of the Products. Some jurisdictions do not permit the disclaimer of warranties, so this warranty disclaimer may not apply to you.

8. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PHONONIC BE LIABLE TO BUYER, OR TO ANY PARTY CLAIMING THROUGH OR UNDER BUYER, FOR ANY LOST PROFITS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THE SALE OF PRODUCTS TO BUYER OR USE OR INABILITY TO USE ANY PRODUCTS BY BUYER, EVEN IF PHONONIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND PHONONIC’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS OR THESE TERMS IS LIMITED TO THE AMOUNTS PAID BY BUYER TO PHONONIC DURING THE 12 MONTHS PRECEDING THE CLAIM. NO ACTION SHALL BE BROUGHT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. BUYER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES PURSUANT TO THESE TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICING AND OTHER TERMS SET FORTH IN THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS OF LIABILITY, SO THIS SECTION 8 MAY NOT APPLY TO YOU.

9. GENERAL.

Buyer acknowledges that it has read and understands these Terms and agrees to be bound by them. These Terms shall not be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the Sale of Goods, as amended; rather, these Terms shall be governed by the laws of Delaware exclusively, without regard to conflict of law provisions.
Any or all products may be subject to export or resale restriction or regulation, and Buyer agrees to comply with all such regulations or restrictions and any other applicable laws and regulations regarding use of the Products. Any or all Products may have been imported. Country of origin information is as provided to Phononic by its suppliers and is, where applicable, located on the Products or the innermost packaging thereof. If Buyer’s order is placed under a contract with the United States Government, Phononic agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of order placement, provided Phononic written notice. All rights in technical data, software and/or firmware owned or licensed by Phononic are hereby reserved and deemed restricted or limited. No provision of Buyer’s contract with the Government will be binding on Phononic except as expressly set forth in this Section. These Terms may be assigned by Phononic to a successor in interest upon any merger, reorganization, change of control or sale or all or substantially all of the assets of Phononic related to these Terms. Buyer shall have no right to assign these Terms, or any order for Products placed on the Phononic Site without the prior written consent of Phononic. Any assignment in violation of the foregoing shall be null and void from the beginning. These Terms shall be binding on any successor or assign. Phononic’s failure to or delay in exercising any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Buyer’s relationship to Phononic is that of an independent contractor, and neither party is an agent or partner of the other. If any provision of these Terms is unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. These Terms and any invoice, purchase order or sales acknowledgement form, in each case supplied by Phononic, to which it is attached constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. These Terms may be amended only by a written document signed by both parties that specifically references these Terms.

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