These Terms and Conditions govern all sales of Equipment by PGE to the Buyer and prevail over any conflicting terms proposed by the Buyer.  A binding Contract is formed only when PGE issues written acceptance of the Purchase Order. 

1. DEFINITIONS

“Seller”                             Phoenix Grid Enterprise LLC (herein called “PGE”), a Texas company including affiliates, officers, and employees.

“Buyer”                             The person, firm, or company purchasing the Equipment pursuant to a Purchase Order.

“Party”                              May refer to Seller or Buyer individually and “Parties” may refer to Buyer and Seller collectively.

“Equipment”                  The products and services supplied by the Seller as detailed in the Purchase Order.

“Purchase Order”           The Buyer’s purchase order accepted in writing by the Seller or alternative agreement signed by both parties together with these terms and conditions.

“Contract”                        The agreement between the Seller and the Buyer incorporating these Terms and Conditions.

“Day(s)”                            A working business day.  For any deliverables due on a Saturday, Sunday or national legal holiday, the next working day will be applicable.

2. SCOPE OF SUPPLY

Seller shall provide the Equipment and any additional services as detailed in the Purchase Order and subject to the agreed upon terms and conditions.

3. PRICES

Prices are exclusive of all taxes, duties, packaging, and freight, all of which will be the responsibility of the Buyer unless otherwise stated.  All quoted prices for packaging, freight and any applicable tariffs are estimates only and are re-estimated prior to commencement.  Any changes in price will be communicated to the Buyer via a change order and agreed in writing by authorized representatives of both parties.

4. CHANGE ORDERS

Any changes to the Contract must be agreed in writing by authorized representatives of both parties.  No verbal modifications or course of conduct shall constitute a change to the Contract.

5. COST ESCALATION

PGE reserves the right to adjust prices to reflect increases in costs of materials, labor, freight, or regulatory changes between the date of the Purchase Order and the delivery date.  Any price adjustment will be documented in writing and agreed upon by the Customer in line with Section 4 above.

6. PAYMENT TERMS

Payment milestones are as detailed in the Purchase Order.  Payment is due immediately upon receipt of invoice unless otherwise specified in the As Sold proposal document.  PGE may suspend delivery or terminate the Contract for non-payment as detailed in Sections

7. DELIVERY AND RISK

Delivery occurs when the Equipment is made available for collection or delivered to the agreed location in line with the Purchase Order and applicable INCOTERMS.  Risk of loss passes to the Buyer upon delivery as specified under the INCOTERMS agreed in the Purchase Order.  Title remains with PGE until full payment is received.

8. INTELLECTUAL PROPERTY

All intellectual property rights, including patents, trademarks, designs, and copyrights in or associated with the Equipment or any accompanying documentation remain the property of the Seller.  Buyer is granted no rights to reproduce, modify, or use the Seller’s intellectual property other than for the intended operation of the Equipment.

9. FORCE MAJEURE

Neither Party shall have any liability for or be in breach or default of its obligations under a Purchase Order or these Terms and conditions for delays or failure due to events beyond reasonable control of a Party (acts of God or public enemy, strikes, war, government action, supply chain disruption).  The affected Party must notify the other Party with 10 (ten) days of the event

10. SUSPENSION

PGE may suspend any Work, including delivery of any Equipment by written notice to the Buyer if Buyer fails to perform its obligations in accordance with the Purchase Order and these Terms and Conditions.  Buyer will be responsible for any additional costs incurred by PGE in accordance with any such suspension.

11. CANCELLATION

Buyer may cancel the Contract for convenience providing written notice to Seller.  Buyer will be responsible for all costs incurred by PGE up to the date of the cancellation, including materials purchased, labor and any non-recoverable expenses and a 10% multiplier.  Any cancellation is subject to mutual agreement on applicable fees or compensation.  No Purchase Orders may be cancelled after shipment.

12. TERMINATION

Either Party may terminate the contract immediately if the other Party defaults or becomes insolvent.  Upon termination, all sums become payable and PGE may repossess unpaid equipment.  Buyer will be responsible for all costs (including legal) incurred during the collections process.  Interest shall be due from Buyer to PGE on overdue accounts at the (i) rate of 1% per month or (ii) the maximum rate allowed by law, whichever is less.

13. STORAGE

If the Buyer fails to take delivery or arrange collection of the Equipment at the agreed FOB point within the time specified in the Contract, then the Seller may, at its discretion and without prejudice to any other rights or remedies, arrange for the Equipment to be stored at the Buyer’s sole risk and expense.  The Buyer shall be liable for all reasonable costs and expenses incurred by the Seller in connection with such storage, including (without limitation) storage charges, handling fees, insurance, and any additional transportation or administrative costs.  The Seller shall notify the Buyer in writing when the Equipment has been placed into storage. Payment for the Equipment and any associated storage costs shall remain due in accordance with the original payment terms.

14. PRODUCT WARRANTY

PGE warrants Equipment to be free from material defects for 12 (twelve) months effective from date of delivery and receipt of payment in full unless otherwise stated in the Contract.  Warranty excludes normal wear, misuse, improper installation, unauthorized modification, exposure to weather, excessive loading, lack of proper maintenance or abnormal conditions. Seller’s obligation is repair or replacement of defective parts and reasonable . All other warranties are excluded to the fullest extent permitted by law.

15. WARRANTY CLAIMS

All warranty claims must be filed in writing within the warranty period and 30 (thirty) days from the date the claim arises.  If PGE does not receive such written notice, then all applicable warranties shall be null and void.  Buyer must contact and obtain PGE’s approval prior to commencing any warranty work.  PGE will not be liable for any costs incurred as a result of warranty work that has not been agreed to by both parties.

16. TRANSFERABILITY

PGE warranties may not be transferred without the prior written consent of PGE, which may not be unreasonably withheld.

17. LIMITATION OF LIABILITY

Seller’s total liability shall not exceed the Contract price or $1,000,000 USD (One million dollars) whichever is lowest. PGE is not liable for indirect, punitive, consequential, or special losses or damages.

18. CONSEQUENTIAL DAMAGES

PGE is not responsible for any indirect, incidental, punitive, special, exemplary or consequential damages, including loss of profit, loss of business or loss of production.

19. GOVERNING LAW AND JURISDICTION

This Contract shall be governed by the laws of the State of Texas and construed in accordance with the laws of the State of Texas, without regard to its conflicts of law principles.  Parties submit to exclusive jurisdiction of courts of the State of Texas.

20. DISPUTE RESOLUTION

Any disputes arising out of or in connection with this Contract shall first be attempted to be resolved amicably through good faith negotiation between the parties. If the dispute cannot be resolved within thirty (30) days, the parties agree to submit the dispute to mediation in Texas, with a mediator mutually agreed upon. If mediation fails to resolve the dispute, the parties may pursue remedies in the courts of the State of Texas as set forth in Section 17.

21. REASSIGNMENT

Buyer may not assign the Contract without Seller’s written consent.  Notices must be in writing to the registered address of the other party.  If any provision is invalid, remaining provisions remain in effect.

22. ENTIRE AGREEMENT

This Contract, including the Purchase Order and these Terms and Conditions, constitutes the entire agreement between the parties regarding the subject matter herein. It supersedes all prior agreements, understandings, representations, and communications, whether written or oral, relating to the same subject matter. No amendment or modification of this Contract is valid unless made in writing and signed by authorized representatives of both parties. 

23. SURVIVAL

Any provisions of this Contract that by their nature should survive termination or expiration, including but not limited to Sections 14 (Warranty), 8 (Intellectual Property), 17 (Limitation of Liability), 19 (Governing Law and Jurisdiction), 20 (Dispute Resolution), and 22 (Entire Agreement) and all payment obligations as determined by the Purchase Order and any agreed changes in price, shall survive termination or expiration of this Contract.