These General Terms and conditions of purchase of Products (“Terms”) apply to the viewing, purchasing and sale of products (the “Products” or “Goods”) through quotes, proposals or other marketing material (“Quotes”) provided by Phoenix Quality Manufacturing, LLC (“PQM”) to a prospective purchaser (“You”, “Customer”, or “Buyer”). By viewing a quote, placing an order or completing a purchase of Products via the Sales and Purchase Agreement (each a “Customer Order”, “Sales and Purchase Agreement” or “Transaction”), You agree to be bound by and accept these Terms. If You do not agree to these Terms, your only remedy is to not use PQM’s services or purchase PQM Products. Please print a copy of these terms and conditions for your records.
All communications via Quotes, emails, in-person or any other form of communications are classified as invitations to purchase and not offers to sell. PQM reserves the right, at its sole discretion, to accept or reject the order once the order has been completed and submitted by You, until such time as a Sales and Purchase Agreement has been executed.
PQM’s offer to sell Products to Customers and PQM’s acknowledgment of any Customer Order is expressly limited to and expressly conditioned on Customer’s acceptance of these Terms supplemented with any additional terms laid out in the Customer Order signed by the parties. Unless otherwise agreed in writing in a Customer Order, the applicability of terms contained in a Customer Order are limited to the identification and the quantity of products ordered by the Customer and agreed to be sold by PQM, and PQM rejects all other Customer terms, in any form, that are different from these Terms.
If there are any conflicts between the terms of the Sales and Purchase Agreement and these General Terms and Conditions of Purchase of Products, the terms of the Sales and Purchase Agreement shall prevail.
Pricing and Specifications
Product prices may be listed in the applicable PQM price pages or otherwise communicated by PQM via other means. All information regarding pricing, products and services is subject to change. PQM reserves the right to make adjustments to pricing and products for any reasons including, but not limited to, changing market conditions, discontinuation, unavailability, raw material or other manufacturer price changes, and errors in advertisements or Quotes. Unless otherwise specified, prices listed do not include shipping charges, handling fees, taxes and/or applicable duties, brokerage fees or special crating requirements for export shipment.
The pricing we may charge may vary from customer to customer, and from moment to moment. Pricing for Products varies and may change from time to time. The final price we charge for Products may depend on multiple factors including but not limited to discounts offered, recurrent ordering, the number of Products purchased, changes in the supply chain or operations costs, general market factors and or other reasons. We do not provide price protection or refunds in the event of promotions or price decreases. However, if Buyer has agreed to recurring orders and recurrent billing, we will provide You with written notice no later than thirty (30) days before the expected change in pricing comes into force by sending you an email, or using any other contact information we have for you on file – which notice, where required by applicable law at our discretion, will set out new terms of recurrent billing, with you having the right to cancel without cost, penalty or cancellation fee by providing us notice to that effect no later than ten (10) business days before that change comes into effect, otherwise cancellation will incur a restocking fee determined by PQM and subject to other charges as outlined in the Order Cancellation section below. To the fullest extent permitted by law, any lack of acknowledgement to the price change, will constitute acceptance and constitutes your full agreement to be legally bound by these changes and Terms as modified.
The Seller and the Buyer both acknowledge the sufficiency of the consideration paid for Products. In addition to the Purchase Price specified in a Customer Order, the amount of any present or future use, excise, or similar tax applicable to the sale of the Goods will be paid by the Buyer, or alternatively, the Buyer will provide the Seller with a tax exemption certificate acceptable to the applicable taxing authorities. The Purchase Price is inclusive of sales tax, and is payable by the Buyer unless the Buyer provides the Seller with a tax exemption certificate acceptable to the applicable taxing authorities, in which case the amount of sales tax will be subtracted from the Purchase Price payable by the Buyer.
All further payment terms shall be agreed through a formal purchase process, and to be binding upon the execution of definitive Sales and Purchase Agreement. Product prices do not include any applicable taxes (including sales taxes), tariffs, duties, fees, or charges of any type imposed by any governmental authority (“Transfer Taxes”). Transfer Taxes will be separately itemized on PQM’s invoice and the Buyer will be liable for their full payment. PQM will not collect or remit any Transfer Taxes for which the Buyer provides a valid tax exemption certificate.
Notwithstanding the above all taxes shall be paid at the time of collection of any payments of invoices.
Unless otherwise specified, standard payment terms are 100% prior to release of the Products from the PQM facility. Customer may not make or take any deduction, set-off, or other adjustments without PQM’s prior written approval. Order quantities must meet stated minimums for Products. PQM may waive prepayment of any Order, and any credit extended to the Customer is done at PQM’s discretion and subject to PQM credit requirements. Customers must keep their account current at all times. PQM may withhold shipments, payments, or other benefits, and/or assess late fees and interest on past due amounts until the account balance is current, with amounts of interest to be customary and based on monthly compounding interest based on the current Federal Reserve monthly SOFR, the Secured Overnight Financing rates. Returns are subject to PQM’s applicable return goods policy and require advance PQM authorization.
Those customers who claim exemption from taxes or duties are responsible for providing PQM with all necessary documentation at the time of purchase or taxes will be added to their order. While PQM will strive to maintain competitive prices, occasionally, stated prices on the site are subject to change without notice due to circumstances beyond our control.
Shipping and Delivery of Goods
Unless otherwise agreed upon in executed Customer Order, U.S. placed orders shall be CIF in USA, with any sales outside of the territory F.O.B at the PQM facility in Jackson, Ohio. Unless otherwise agreed, under no circumstances will PQM be liable for customer’s failure to receive.
The risk of loss from any casualty to the Goods, regardless of the cause, will be on the Seller until the Goods have been received by the Buyer. The Seller will provide, at its expense, insurance on the Goods ensuring the Seller's and the Buyer's interest as they appear, until payment in full to the Seller and delivery to Buyer’s Destination.
Subject to customary product warranties, all orders are final, as is, with no return options unless as part of a warranty exchange reviewed below. Orders may be taken in numerous ways, including through a live PQM sales team, PQM approved distributor or agents, or via online sales through both PQM Websites or third party sites.
PQM may offer discounts to Buyers who purchase products both for one off-purchases as well as incentives for repeat purchases on a recurring basis. Additionally, unless contractually agreed to in a binding Customer Order or other definitive agreements PQM may at any time adjust the pricing of its products or its required methods of billing, including adjustments of all payment, shipping, or other payment terms. If any purchase is made on a recurring plan, the Buyer agrees and accepts all responsibility for any recurrent payments. All recurring orders require a minimum of thirty (30) business day’s advance notice to cancel. The Buyer agrees that such notice will not affect charges submitted before PQM could reasonably act.
If any problems arise with the order, or with the shipping address, payment method, and PQM is unable to solve the problem, we may notify you by email or other means to help rectify the issue. It is important that you notify us at any time of any changes to the contact information for us to best serve and deliver the Customer Order. If we are unable to resolve problems with your order we may cancel the order, and may not be able to deliver future Products to you until the problem has been resolved.
We will contact you if your order is not accepted. This may occur for many reasons including but not limited to, (a) failure of Buyer to meet customer credit requirements, (b) insufficient inventory available to fulfill the order in a timely fashion, (c) failure to authorize the payment, (d) there has been a mistake in the pricing or description of the Products that was made on the website or via marketing materials, (e) authority of competent jurisdiction prevents us from selling, or You from buying the Products.
Acceptance of the order will only take place when the terms of the Payment conditions have been made by You, and in the case of an online purchase, funds have been cleared and deposited in PQM’s accounts.
All sales are final with no refunds, returns or exchanges unless subject to warranty exchange.
Specifics to Online Orders
In addition, as noted above in the Taxes section, the Buyer remains responsible for any taxes that may be applicable to your Transaction. While not obligated to do so, PQM may correct any errors by the Processor even if it has requested or received payment. Further, a Buyer that enters into a Transaction utilizing a Processor agrees that the terms of payment for the Transaction are based upon the agreements between the Buyer and his/her respective financial institution, credit card issuer, or other providers. If PQM does not receive payment for a Transaction through the Processor, the Buyer agrees to pay all amounts due directly to PQM.
PQM WILL NOT STORE ANY CREDIT CARD OR FINANCIAL INFORMATION ON ITS SERVERS.
For orders made online, once you have registered with us, You may submit an order for Products online. Once you submit your order we will send you order information confirming the purchase of Products. This does not mean that the order has been accepted by PQM, until receipt of a confirmation of purchase with a specific delivery date has been made.
PQM may choose to include a membership model that will automatically renew unless cancelled by You or PQM suspends or terminates the membership at its discretion.
Product Information, Selection, and Use
PQM may provide Product information, including technical information, specifications, recommendations, literature, and other materials for Buyer’s convenience. The accuracy or completeness of Product information is not guaranteed and is subject to change without notice. No license under any PQM or third-party intellectual property rights is granted or implied with this Product information. The Buyer is solely responsible for evaluating and selecting products and determining whether each Product is fit for a particular purpose and suitable for the Buyer’s use. Products are not manufactured to any customer requirements or specifications unless expressly agreed to in writing by PQM. Products that are sold for the Buyer’s use or consumption may not be repackaged, resold, or redistributed in any manner without PQM’s prior written consent.
Ownership of Materials, Trademarks and Copyright
All information contained in a Customer Order, included on our site including all images, designs, logos, photographs, text and other materials (the “Contents”), or otherwise communicated to You by PQM, are copyrights, trademarks, or other intellectual property owned or licensed by PQM or its affiliates, or are the property of their respective owners. The Contents of Quotes, Customer Orders and other communications made by PQM may not be copied, republished, downloaded, transmitted, mirrored or reproduced without the prior written permission of PQM or the applicable copyright owner. You may only use the Quote and Customer Order to view its contents and place an order. All rights not expressly granted are hereby reserved by PQM.
Limited Manufacturer’s Warranty
Unless otherwise specified for specific Product, or Product component in a Customer Order, PQM warrants that the current products produced by PQM, including PQM FreedomAIR masks, when used in accordance with the instructions for use, and in generally accepted practices for mask usage, shall be free of defects in workmanship and materials and will perform in accordance with PQM official published Product specifications for a period of 1-year from the date of original shipment from the PQM factory. This warranty does not cover damage associated with (i) misuse or unintended usage including failure to follow instructions, (ii) any modifications of the product, (iii) accidents or abuse of the Product, (iv) usage in a non-suitable physical or operating environment, or (v) other defects not related to materials or workmanship, (vi) alterations or servicing made with non-approved PQM components, (vii) any deteriorations due to aging of any component made of rubber or latex or other elastomer resulting from improper storage of the Products, undue exposure to the heat, sun, water, chemicals, ozone, or other deteriorating elements. The decision as to what constitutes normal use shall be made solely by PQM.
To issue a warranty claim, Buyer must: (i) provide proof of purchase, as well as return the defective Product to PQM for proper analysis and testing, (ii) be the owner who purchased the Products new from PQM or from an authorized PQM Distributor, (iii) notify PQM of intent to file a warranty claim prior to the expiration of the 1-year warranty period, (iv) ship the Product returned freight prepaid to PQM, to the Jackson, Ohio factory, or to an authorized service center as notified by PQM.
If the product, or component of the Product is found to be defective, PQM at its sole option may repair or replace any product without charge to the Buyer. The warranty period on any repaired or replaced product shall be for a period of 1-year.
This warranty is the sole warranty available to the Buyer. PQM excludes all implied conditions and other warranties except any implied condition of warranty the exclusion of which would violate any law or cause any part of this warranty to be void.
To the fullest extent permitted by law PQM disclaims all liability for any direct, indirect, special, incidental, or consequential damages including but not limited to any health related claims or loss of profits, arising out of the sale or use of the Product.
This warranty does not exclude or limit the application of any provision of any law. Any servicing of PQM Products with non-approved vendors or with parts not approved by PQM will void this limited warranty. The warranty period will automatically expire after the one-year anniversary of the date of original shipment, unless otherwise extended at PQM’s sole discretion.
If a Product does not conform to the manufacturers warranty listed above, the Buyer’s sole and exclusive remedy is, at PQM’s option, repair, or replacement of the nonconforming Product. PQM has no obligation under this warranty with respect to products that are modified or damaged by the Customer, including through misapplication, misuse, abuse, accident, neglect, or mishandling. The customer must notify PQM within the warranty period that it believes a Product is non-conforming and, thereafter, cooperate with PQMs investigation of such otherwise, the Buyer waives any right or claim with respect to such non-conformance.
PQM and its affiliates hereby expressly disclaim all warranties and conditions, either legal, express or implied, arising from statute, course of dealing, usage of trade or otherwise, related to this site or the Products, including, without limitation, any warranty of merchantability, merchantable quality, quality or fitness for a particular purpose, or warranty of non-infringement. Unless a different warranty is expressly specified on the applicable Customer Order or Product packaging (in which case such Customer Order warranty governs), PQM warrants that each Product meets PQM’s applicable Product specifications at the time PQM ships each Product.
PQM further warrants that: (1) PQM is the legal owner of the Goods; (2) the Products are free from all liens and encumbrances; (3) PQM has the right to sell the Products; and (4) PQM will warrant and defend the title of the Products against any and all claims and demands of all persons, (5) the Products are now free and at the time of delivery will be free from any security interest or other lien or encumbrance, except the security interest created in this Agreement until PQM is paid in full.
Limitation of Liability
Notwithstanding anything to the contrary, PQM’s liability is limited to the replacement value of the products purchased by Buyer, and then only in the case, that payment has been fully received by PQM. Except to the extent prohibited by law, PQM is not liable for direct, indirect, incidental, special, punitive, or consequential damages (including, but not limited to, lost profits, revenue, business, opportunity, or goodwill) that directly or indirectly arise from or relate to any PQM products, regardless of the legal position that may otherwise be in the contrary including, but not limited to, warranty, contract, negligence, fraud, or strict liability.
Unless otherwise specified to the contrary in an executed contract signed by PQM, or as noted above in the case of purchase of Products by a Buyer, PQM’s aggregate liability shall not exceed, one-hundred dollars ($100.00) in aggregate.
Title to the Products will remain with PQM until delivery and actual receipt of the Products by the Buyer or, in the alternative, PQM delivers a document of title or registrable Bill of Sale of the Products, bearing any necessary endorsement, to the Buyer.
Inspection will be made by the Buyer at the time and place of delivery. Any refund will not include costs of delivery or installation/de-installation. Those costs will be borne by the Buyer.
The Buyer's failure to give notice of any claim within 10 days from the date of delivery will constitute an unqualified acceptance of the Goods and a waiver by the Buyer of all claims with respect to the Goods.
By Customer: Buyer may cancel an order with receipt of full refund with PQM’s written consent at any time prior to thirty (30) days before scheduled delivery date of the Products – with refund issued within ninety (90) days from date of receipt of cancellation notice (If applicable). If cancellation is made within thirty (30) days of scheduled delivery date, unless such cancellation was made due to the changing of the Pricing of the Products scheduled for purchase by the Buyer as specified above in the Pricing section above, the cancellation shall be subject to the following: PQM will endeavor to recoup costs and expenses via the resale of the product to a different customer, however, if PQM has incurred costs and expenses that cannot reasonably be recovered through the sale of the products to another person or entity, the Buyer will be responsible for all payments owed to PQM as outlined in the Customer Order, which may include costs of related raw materials, packaging, restocking fees, and other items dedicated to Products. If cancellation occurs on subscription or pre-payment order any discounts applied as outlined in the Customer Order will be removed and difference payable by the Buyer. If cancellation occurs within 30 days due to adjustments of price by PQM with proper notice made by PQM to Buyer, Buyer may cancel at any time up to ten (10) business days prior to delivery date without penalty.
By PQM: PQM may cancel a Customer Order without obligation or liability upon notice to Customer if Buyer fails to pay for any shipment when due, if PQM deems that its prospects of payment is impaired, if customer order was placed online and inventory is unavailable, or for any other legitimate business reason that would impair PQM’s ability to deliver on a Customer Order. If an order is cancelled during this acceptable window, a refund of any prepayments or deposits will be made within thirty (30) days from notice of cancellation. PQM may also upon notice to Buyer and without liability to PQM, cancel any Customer Order and any outstanding deliveries hereunder, if (a) a receiver or trustee is appointed to take possession of all or substantially all of Buyer’s asset’s, (b) Buyer makes a general assignment for the benefit of creditors, (c) any action or proceeding is commenced by or against Buyer under any insolvency or bankruptcy act or under any other statute or regulation having as its purpose the protection of creditors, or (d) Buyer becomes insolvent or commits an act of bankruptcy.
All Quotes, Customer Orders and terms are controlled by PQM from our offices in Jackson, Ohio. By agreeing to a Customer Order, you agree that the laws of the State of Ohio govern the Transaction, without regard to conflicts of laws principles, and such jurisdiction will apply to all matters relating to the use of this site and the purchase of Products. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
Except where otherwise stated in this Agreement, all terms employed in this Agreement will have the same definition as set forth in the Uniform Commercial Code in effect in the State of Ohio on the date of execution of this Agreement.
Unless specified to the contrary below, any conflict between Parties will be subject to the following dispute resolution processes: (i) good faith negotiations conducted for a minimum period of 120 days (ii) escalation if necessary to a mutually agreed upon mediation program to be held in the State of Ohio, before a neutral mediator jointly selected and paid for by the parties within 60 days of written request of a parties desire to utilize mediation and (c) as a last resort, binding arbitration subject to the guidelines outlined under the JAMS act determined pursuant to JAMS' Expedited Procedures then in effect. Such arbitration shall be initiated by the parties or either of them. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved if any, and the remedy or determination sought. The parties may agree on a retired judge from the JAMS panel. If they are unable to promptly agree, JAMS will provide a list of three available judges and each party may strike one. The remaining judge (or if there are two, the one selected by JAMS) will serve as the Arbitrator. In the event that JAMS shall no longer exist or if JAMS fails or refuses to accept submission of such dispute, then the dispute shall be resolved by binding arbitration before the American Arbitration Association under its Expedited Procedures of Commercial Arbitration Rules then in effect. Such arbitration being conducted within a period of one (1) year from the date of the mediation.
All parties agree to waive rights to litigation and or jury trial for all reasons, other than for PQM whom will have the sole right to use litigation as a measure to ensure payment for Products delivered. For clarity, in the event of any failure by Buyer to remit payments due to PQM, PQM shall have no restriction as outlined in this clause above and may pursue any and all means of remedies including litigation in the Courts of Jackson County, Ohio or in the United States District Court, Southern District of Ohio and Customer consents to the exercise of jurisdiction and venue in these courts.
PQM will manufacture and sell the Products in compliance with the federal, state, and local laws applicable to each Product. Under no circumstances will either party offer or make any payment or give anything of value to another person or entity where such payment or action would violate applicable law or regulation, including, but not limited to, any applicable anti-bribery, anti-corruption, or anti-kickback law. Unless otherwise clearly noted and written on Customer Orders and packaging, PQM makes no warranties that its Products meet any official standards including OSHA, NIOSH, FDA or other governing authority.
Buyer agrees to treat as confidential and to use only for the purposes of the Transaction all information, including but not limited to pricing, trade secrets, designs, drawings, formulae, inventions, plans, procedures, processes, samples, operations, technical and commercial information, which is provided “as is” in whatever form or medium by or on behalf of PQM and of its affiliates and to give access to such information only on a need to know basis to its employees and not to transfer, publish, disclose or otherwise make available such information or any portion thereof to any third party without PQM’s prior written consent. All information shall remain PQM’s property and no licenses or rights are granted in any such information and Buyer shall, upon PQM’s demand, promptly return to Buyer or destroy all such materials and information, not retaining any copies thereof, upon PQM’s demand. Buyer shall not use the name, logo, trademark, or any other reference to PQM, either direct or indirect, in press releases, advertisements, sales literature or other publications and shall not disclose the existence or the terms and conditions of any Customer Order, without the prior written consent of PQM.
Buyer agrees that it will not export or re-export, directly or indirectly, any of PQM’s confidential Information or Products without complying with all applicable international and national export control laws, to any country for which the United States of America or any other country, at the time of export or re-export requires an export license or other governmental approval, without first obtaining such license or approval. This includes all adherence to all rules governed by the Defense Production Act or other emergency orders issued by recognized authorities.
Excuse for Delay or Failure to Perform; Force Majeure
For the purposes of these Terms, an event of “force majeure” shall mean any strikes, work stoppages or other labor difficulties, fires, floods, health and other public pandemics or other acts of God, acts of government or any subdivision or agency thereof; which are beyond the control of the party claiming the occurrence of a force majeure event and which delays, interrupts or prevents such party from performing its obligations under this contract.
PQM will not be liable in any way for any delay, non-delivery or default in shipment due to labor disputes, transportation shortage, delays in receipt of material, priorities, fires, accidents and other causes beyond the control of the Seller or its suppliers. If PQM, in its sole judgment, will be prevented directly or indirectly, on account of any cause beyond its control, from delivering the Products at the time specified or within one month after the date of a signed Customer Order, then PQM will have the right to terminate a Customer Order by notice in writing to the Buyer, which notice will be accompanied by refund of sums paid by the Buyer (If applicable for goods not received) pursuant to a signed Sales Purchase Agreement or Customer Order.
The party affected by a force majeure event shall give notice thereof to the other party within thirty (30) days following the occurrence thereof and shall apprise the other party of the probable extent to which the affected party will be unable to perform or will be unable to perform or will be delayed in performing its obligations outlined in a Customer Order. The affected party shall exercise due diligence to eliminate or remedy the force majeure cause and shall give the other party prompt notice when that has been accomplished.
All Customer Orders may be performed and all rights hereunder against Buyer may be enforced, wholly or in part, by PQM or by any one or more of the corporations now or hereafter subsidiary to or affiliated with PQM. The waiver of any term, condition or provision hereof shall not be construed to be a waiver of any other such term, condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision. Buyer shall not assign its rights or obligations under this Customer Order without the prior written consent of Buyer. Stenographic and clerical errors, whether in mathematical computations or otherwise, made by PQM on the Customer Order or any other forms delivered to Buyer shall be subject to correction. Any modification to a Customer Order or these terms hereof, to be valid, must be in writing and executed by both parties.
Relationship of Parties.
Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Buyer is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
Buyer shall not:
Each Party (as such, the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party and its shareholders, affiliates, officers, directors, employees, and agents for, from and against any claim, loss, liability, cost and expense (including, without limitation, costs of investigation and reasonable attorney’s fees), directly or indirectly relating to, resulting from or arising out of any breach of a representation, warranty or covenant or any action or failure to act arising out of this Agreement by the Indemnifying Party or its shareholders, Affiliates, Representatives, officers, directors, employees, and agents.
The Quote, Customer Order and all terms and conditions constitute the entire agreement and understanding between the customer and PQM concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto, including any oral statements made by PQM representatives or any alternate terms supplied by you to PQM unless otherwise agreed to by PQM in writing. To the extent that anything in or associated with the site is in conflict or inconsistent with these terms and conditions, these terms and conditions shall take precedence.
The Buyer may not assign its right or delegate its performance under a sales Agreement without the prior written consent of PQM, and any attempted assignment or delegation without such consent will be void. An assignment would change the duty imposed by an Agreement, would increase the burden or risk involved and would impair the chance of obtaining performance or payment.
All paragraphs of these Terms shall survive the cancellation and or completion of a Transaction.
PQM reserves the right to change these Terms at any time without notice unless otherwise related to warranties for completed Transactions.
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