Phillips Research and Engineering, Inc.
CR 73 # 286 A Ojo Sarco, NM 87521
Phone: 505 689 2571
Terms, Conditions, and Release Agreement
WHEREAS, the ensuing terms, conditions, and release agreement (hereinafter referred to as "this Agreement") governs all purchases and orders of goods by customers from Phillips Research and Engineering, Inc (hereinafter referred to as "PRE");
WHEREAS, this Agreement also governs all services provided by PRE or purchased from PRE;
WHEREAS, this Agreement also releases PRE from PRE's negligence and products liability associated with the purchase of goods and services by the customer from PRE;
WHEREAS, this Agreement applies to all purchases and orders of goods from PRE as well as services provided by PRE conducted in whole or part through the PRE website, internet forums, internet, mail order, email, telephone, on account, and in person;
WHEREAS, the term "customer" means purchaser, buyer, consumer, agent, principal, and representative who purchase and order goods from PRE or purchase services from PRE;
WHEREAS, a customer agrees and accepts that this Agreement governs their purchase from PRE by any of the following methods: purchasing or ordering a good or service from PRE, checking the agreement box located at the end of this Agreement, or signing this Agreement;
WHEREAS, the term "good" includes but is not limited to all products on the PRE website;
WHEREAS, the term "services" includes but is not limited to automobile tuning services, repair services, consulting, and installation services;
WHEREAS, in consideration of the mutual covenants and undertakings set forth herein and intending to be legally bound hereby, PRE and its customers agree to the above mentioned Recitals and the following:
2.0 Disclaimers for Goods and Services
PRE DOES NOT PROVIDE, EXTEND, OR MAKE ANY EXPRESS OR IMPLIED WARRANTIES FOR ANY GOOD OR SERVICE PURCHASED THROUGH PRE.
ALL GOODS AND/OR SERVICES PURCHASED THROUGH PRE ARE SOLD AS IS AND WITH ALL FAULTS.
All products purchased through PRE are for off-road use only.
PRE does not warrant any product sold through PRE will fit on any vehicle. PRE does not warrant any product sold through PRE will fit on any vehicle in conjunction with any other originally equipped by manufacturer part or aftermarket part on any vehicle.
b. Warranty of Quality.
ALL OFFERS, WORDS, AND CONDUCT OF PROMISE, DESCRIPTION, AND REPRESENTATION MADE BY PRE ABOUT ANY GOOD AND/OR SERVICE AMOUNT TO MERE LAYPERSON OPINION.
ANY INTERNET-BASED GRAPHICS, INTERNET-BASED TEXT, MODELS, SAMPLES, OR REPRESENTATIONS UTLIZED BY PRE DO NOT IMPUTE ANY EXPRESS OR IMPLIED WARRANTY TO ANY GOOD/AND OR SERVICE PURCHASED FROM PRE.
THE WARRANTY OF QUALITY FOR ANY GOOD AND/OR SERVICE IS HEREBY EXCLUDED.
c. Warranty of Merchantability.
PRE DOES NOT EXPRESSLY OR IMPLIEDLY WARRANT THAT ANY GOOD AND/OR SERVICE PURCHASED FROM PRE WILL BE FIT FOR THE ORDINARY PURPOSE FOR WHICH SUCH GOODS AND/OR SERVICES ARE USED.
THE WARRANTY OF MERCHANTIBILITY IS HEREBY EXCLUDED.
d. Warranty of Fitness for a Particular Purpose.
PRE DOES NOT EXPRESSLY OR IMPLIEDLY WARRANT ANY GOOD AND/OR SERVICE PURCHASED FROM PRE WILL BE FIT FOR THE PARTICULAR PURPOSE FOR WHICH SUCH GOODS AND/OR SERVICES ARE USED.
THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE IS HEREBY EXCLUDED.
3.0 Returns, Refunds, Cancellations, and Exchanges of Goods and Services.
- a. Generally.
No returns, cancellations, refunds, and/or exchanges of any good and/or service will be accepted.
- b. Goods.
ALL SALES OF GOODS ARE FINAL.
- c. Services.
ALL SALES OF SERVICES ARE FINAL.
- d. Exception. PRE hereby reserves the right to allow a refund, cancellation, return and/or exchange at the sole discretion of PRE. PRE will require all goods (1) to be in saleable condition (2) in their original and unopened packaging (3) unused (4) and to be presented to PRE for return, refund, or exchange within 30 days from the invoice date. Customers agree any allowed refund, cancellation, return, or exchange will be subject to a restocking fee of 25% of the pre-tax invoice amount of each good. The customer agrees to bear full financial responsibility of any shipping costs incurred with any accepted refund, cancellation, return, or exchange. The customer agrees to bear the full financial risk of damage and/or loss to any good being returned, cancelled, or exchanged in transit during shipping. All returns and/or exchanges must by accompanied by a Returned Goods Authorization, "RGA". PRE will supply customers with the RGA number. To receive a RGA number, please contact our returns department at 505 689 2571. When shipping a good to PRE use the following applicable address:
D1. When using UPS or FedEx (DHL and Airborne Express do not service our location):
Phillips Research and Engineering, Inc.
CR 73 # 286 A
Ojo Sarco, NM 87521
D2. When using the U.S. Postal Service:
Phillips Research and Engineering, Inc.
HCR 65 Box 57
Ojo Sarco, NM 87521
- e. Credit Policy. The customer agrees to give PRE a reasonable time to issue credit for a refund, return, or exchange. Factors including but not limited to a credit company's policy, legal holidays, when PRE receives actual notice, time to determine whether or not a good or service will be accepted as return or exchange, and time to inspect the good or service returned shall be used to determine a reasonable time.
- f. Non-Conforming Goods. Customer bears the duty to inspect goods within 48 hours of receipt. Customer shall give actual notice to PRE within 48 hours of receipt of damaged or non-conforming goods. Actual notice requires actually speaking by telephone or in person with a PRE representative. A representative from PRE can be reached at 505 689 2571 during normal business hours. No other type of notice will be acceptable including but not limited to email, posting on internet forums, mail, or telephone text messaging. PRE reserves the right to deny a return of damaged or non-conforming goods for failure to provide actual notice as specified above.
- g. Deposits. PRE reserves the right to require deposits on purchases of goods and services through PRE. Deposits are subject to the PRE return, refund, cancellation, and exchange policy stated in paragraph 3.0. DEPOSITS REQUIRED BY PRE FOR PURCHASES OF GOODS AND SERVICES ARE NON-REFUNDABLE.
- h. Core Charges. Core charges apply to all vehicle components at the sole discretion of PRE. Core parts must be returned to PRE in working condition when removed from the customer's vehicle. Non-working cores are allowed on engines and transmissions so long as the damage is not extensive enough to prevent reasonable repair. All other core parts must be returned damage-free to PRE and in working order. Core charges will not be refunded on damaged core parts.
- i. Invoiced work. Upon completion of invoiced work, all invoices must be fully paid before the vehicle is permitted to leave our facility. Payments must be made in the form of certified funds or cash. Personal checks or credit cards are not allowed as forms of payment for invoiced work.
- j. Transportation. Unless a prior arrangement is made in writing with PRE, the customer bears the financial responsibility of transporting their vehicle to and from a PRE facility.
4.0 Special Orders.
- a. Special ordered goods include but are not limited to any good fabricated by PRE, any good not currently in stock, drop shipped goods, turbo kits, Japanese Domestic Market goods, wheels, body kits, body parts, vehicle part, and accessories.
- b. Any good special ordered may require a deposit or full payment in advance at the time or order. PRE hereby reserves the right to calculate said deposit amount at the time of purchase.
- c. Any special order good is subject to the refund, return and/or exchange policy as stated in paragraph 3.0 above.
- d. ANY SPECIAL ORDER GOOD DEPOSIT IS NON REFUNDABLE.
5.0 Shipping Goods.
- a. Generally. The customer agrees to give PRE a reasonable time to ship goods. Factors determining a reasonable shipping time include but are not limited to when payment is verified, back orders, legal holidays, availability, manufacturer delays, transportation, and the work schedule of PRE.
- b. CUSTOMER agrees to hold harmless PRE for any liability resulting from any shipping delay whether due to delay on behalf of manufactures, transportation companies, shipping companies, customs delay, back orders, payment verification, or delay to due the negligence of PRE.
- c. Shipping Obligation and Goods Lost and/or Damaged in Transit. PRE's shipping obligation to a customer is limited to (1) delivering a purchased good to a common carrier, for example UPS or FedEx (2) making delivery arrangements or (3) notifying the customer what the delivery arrangements are by reasonable means, including but not limited to email, telephone, or mail. Once PRE executes said shipping obligation, their shipping obligation is fully discharged. After PRE discharges their shipping obligation, the customer bears the risk goods lost and/or damaged during shipping and the customer remains fully liable for the full purchase price.
- Shipping Outside the United States of America. The customer bears full financial responsibility for shipping fees levied for shipping goods. If the customer fails to discharge their financial responsibility with respect to shipping fees and PRE receives a request for payment, PRE hereby reserves the right to charge your credit card for the requested payment in addition to PRE's service charge of 25% of the requested payment amount.
6.0 Payment Policy
a. Credit Cards. For purchases of goods and/or services by credit card, PRE only accepts Visa and Mastercard.
b. Check. Checks used to purchase goods and/or services will be verified by an independent third party administrator, verified by deposit, or any other way deemed reasonable by PRE before shipping said goods and/or services. A $30.00 charge will be levied against any check presented and returned marked "insufficient funds" and customer agrees to pay said amount in addition to the after tax purchase price of the associated good and/or service.
c. Cashier Checks and Money Orders. PRE accepts cashier checks and money orders.
d. C.O.D. No COD (cash on delivery) accepted.
e. Wire Transfers. $20.00 fee for wire transfers will be added to the purchase price of any good and/or service. Contact PRE at 505 689 2571 to make arrangements for wire transfers.
7.0 Products Liability Release
- CUSTOMER AGREES TO HOLD HARMLESS PRE UNDER A PRODUCT LIABILITY THEORY INCLUDING DESIGN DEFECT, MANUFACTURING DEFECT, AND/OR MARKETING DEFECT IN RELATION TO GOODS PURCHASED FROM PRE OR SERVICES PURCHASED FROM PRE.
8.0 Indemnification and Hold Harmless Agreement
a. CUSTOMER AGREES TO HOLD HARMLESS PRE FOR PRE'S NEGLIGENCE IN RELATION TO GOODS PURCHASED FROM PRE OR SERVICES PURCHASED THROUGH PRE.
- CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS PRE,
FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION, INCLUDING ANY LIENS, CLAIMS FOR CONTRIBUTION OR INDEMNITY, AND THE REASONABLE AND NECESSARY COST OF DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEY'S FEES, WHICH HAVE ARISEN, OR MAY ARISE OUT OF, OR RESULT FROM, OR IN ANY WAY GROWS OUT OF PURCHASING GOODS AND/OR SERVICES FROM PRE OR FROM PRE'S NEGLIGENCE.
- CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH OPERATION OF A VEHICLE MODIFIED AND/OR TUNED BY PRE.
9.0 Installation and Tuning
a. Parts installed on vehicles by PRE may not fit. Customers agree and give full consent to allow PRE to modify their vehicle for installation of parts. If PRE provides a customer with an estimate, the customer waives any notice requirement required to be given by PRE to the customer regarding price deviations due to additional labor needed for installation of products.
b. Customer agrees to hold harmless PRE for PRE's negligence in installation of PRODUCTS on a customer's automobile.
c. Customer agrees to hold harmless PRE for PRE's negligence in tuning a customer's vehicle. Customer agrees and gives full consent to allow PRE to operate customer's vehicle on public roads, private roads, race tracks, and dynamometers for tuning purposes.
d. Customer agrees to hold harmless PRE for PRE's negligence in operation of customer's vehicle. Customer agrees and gives full consent to allow PRE to operate customer's vehicle on public roads, private roads, race tracks, and dynamometers for testing purposes.
- Customer agrees to maintain proof of financial responsibility pursuant to New Mexico state law on their vehicle at all times while in possession of PRE. Customer agrees to keep the inspection and registration sticker on their vehicle legally valid at all times while in the possession of PRE. Customer agrees to reimburse PRE for the cost of defense and/or payment of any fines sanctioned against PRE by any state government as a result of a customer failing to maintain proof of financial responsibility, a valid inspection sticker, and valid registration on their vehicle while in possession of PRE.
- CUSTOMER AGREES TO HOLD HARMLESS PRE FOR THEFT, VANDILISM, OR PHYSICAL DAMAGE TO CUSTOMER'S VEHICLE WHILE IN POSSESSION OF PRE. Customers bear the burden of making sure all personal items are removed from their vehicles while in possession of PRE.
10.0 Website Usage
a. PRE hereby reserves the right to cancel any order for a good sold through PRE or a service purchased from PRE based on typographical errors.
b. PRE hereby reserves the right to change the terms and conditions governing purchases of goods and/or services through PRE. Customers waive their right to notice of any changes made to the terms and conditions governing purchases of goods and/or services through PRE.
c. PRE hereby reserves the right to change the prices on the PRE website, catalogs, and sales materials without notice to customers. Customers waive their right to notice of any changes made to the prices of goods and/or services purchased through PRE.
11.0 General Release and Discharge
Customer hereby completely releases and forever discharges PRE from any and all past, present or future claims, demands, obligations, actions, causes of action, claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the customer now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the purchase of a good and/or service from PRE including, without limitation, any and all known or unknown claims of customer's representatives or heirs, which have resulted or may result from the purchase of a good and/or service from PRE.
a. Customer agrees to be responsible for the payment of any compensation liens, medical liens including but not limited to any Medicaid lien, hospital liens, and federal, state, county, city, and local municipality liens, etc. that have arisen or may arise out of a purchase of goods from PRE or purchase of services from PRE.
b. PRE is released from any responsibility to pay any such liens. The obligation to pay any such liens is solely the responsibility of the customer.
11.0 Attorney's Fees.
Each party hereto shall bear all attorney's fees and costs arising from the actions of
its own counsel in connection with a claim presented to PRE arising or claims that may arise out of a purchase of goods from PRE or purchase of services from PRE.
12.0 Representation of Comprehension of Document
In entering into this Agreement, the customer represents that the customer has had the opportunity to obtain advice concerning the legal and income tax consequences of this Agreement; that the terms of this Agreement have been completely read; and, that the terms of this Agreement are fully understood and voluntarily accepted by the customer.
13.0 Warranty of Capacity to Execute Agreement
The customer represents and warrants that no other person or entity has, or has had, any interest in their claims, demands, obligations or causes of action, except as otherwise set forth herein; that the customer has the sole right and exclusive authority to execute this Agreement; and that customer has not sold, assigned, transferred, conveyed or otherwise disposed of any of their claims, demands, obligations or causes of action referred to in this Agreement.
14.0 Abandonment of Customer Parts
Unless customer makes prior arrangements in writing with PRE, automotive parts removed or replaced on a customer's vehicle become the property of PRE. Customer agrees removed or replaced automotive parts left in the custody of PRE are abandoned parts and customer relinquishes ownership over said automotive parts to PRE. Customer agrees parts purchased, but not installed or requested to be shipped at time of purchase, are considered abandoned after 90 days and customer relinquishes ownership over said parts to PRE.
15.0 Goods and Services Purchased on Account and Storage Fees
Customer agrees goods purchased on account become past due 30 days after PRE discharges PRE's shipping obligation as stated in paragraph 5.0 and customer has not paid their invoice balance in full. Customer agrees services performed by PRE on account become past due 30 days after PRE gives notice to customer of service completion. Past due accounts will be charged an additional 2% of the invoice amount for every 30 days past due. Storage fees will be charged to customer when both (1) customer's property is left in possession of PRE and (2) said customer's account becomes past due. Customer agrees to be billed for PRE's storage rate of twenty dollars and zero cents per day ($20.00.00). In the alternative, PRE hereby reserves the right at PRE's sole discretion to have customer's property delivered to customer when both (1) customer's property is left in possession of PRE and (2) said customer's account becomes past due. Customer authorizes and consents to be billed and pay for any expense presented by PRE for delivering said customer's property left in possession of PRE on a past due account.
a. The customer agrees that neither they nor their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, a dispute arising between PRE and the customer pursuant to a purchase of goods from PRE or purchase of services from PRE, except as necessary to compromise any medical providers' claims and/or subrogation interest.
b. The customer agrees that neither they nor their attorneys nor representatives shall reveal, reference, communicate, or publish their opinion and/or facts underlying a dispute arising between the customer and PRE pursuant to a purchase of goods from PRE or purchase of services from PRE to any third party, other than as may be mutually agreed to in writing. The term publication includes but is not limited to writing emails, posting on any internet forum and/or message board. Customer assumes the duty to discharge there duty of confidentiality in good faith and customer agrees not to circumvent said duty by using a third party as a conduit for communicating said proscribed communication.
c. Breach of the confidentiality provisions as stated in 14.1 and 14.2 above renders customer liable to PRE for liquidated damages in the amount of five thousand dollars and zero cents ($5,000). Although the harm that is caused by the breach is one that is incapable of or very difficult of accurate estimation, based on the future cost of renewing good faith damaged by breach and considering lost potential sales, said liquidated damage amount represents a reasonable forecast of just compensation for harm caused by said breach.
15.0 Computation of Time
For purposes of calculating time, Sundays and legal holidays are excluded. If the last day for computation of time falls on a Sunday or legal holiday, the last day will fall on the next non-legal holiday.
If any of the provisions, terms, or clauses of this Agreement are declared illegal, unenforceable, or ineffective in a legal forum, those provisions, terms, and clauses shall be deemed severable, such that all other provisions, terms, and clauses or this Agreement shall remain valid and binding upon all parties.
17.0 Entire Agreement and Successors in Interest
This Agreement contains the entire agreement between the customer and PRE with regard to the matters set forth in it and shall be binding upon and enure to the benefit of the executors, administrators, agents, personal representatives, heirs, successors and assigns of each.
18.0 Governing Law
This Agreement shall be construed and interpreted in accordance with the laws of the State of New Mexico.