Terms and Conditions of Sale
ARCHITECTURAL POLYMERS INC.
TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of sale shall apply to the sale of the Products listed on the attached Sales Order and/or accompanying invoice between ARCHITECTURAL POLYMERS INC. (“Seller”) and the buyer whose name and address is set forth on the attached Sales Order and/or accompanying invoice (“Buyer”) (the following Terms and Conditions, together with the attached Sales Order and/or accompanying invoice, shall comprise this “Agreement”).
1. Acceptance of Terms and Conditions. The acknowledgement and acceptance by Seller of Buyer’s order is made expressly conditional upon Buyer’s assent to all of the Terms and Conditions (the “Terms”) contained herein and upon no other Terms. Buyer’s assent to the Terms shall be conclusively presumed from the first to occur of: (i) Buyer’s execution of any document containing the Terms; or (ii) Buyer’s acceptance of delivery of any Product ordered from Seller. Seller hereby objects to any terms or conditions at variance with, different from or additional to the Terms unless such terms and conditions are hereinafter set forth in a writing signed by Seller. Buyer acknowledges and warrants that the signatory on all documents relevant to this transaction is specifically authorized and legally permitted to execute said documentation on behalf of Buyer. Anything herein to the contrary notwithstanding, no amendment, waiver, modification or deletion of any of the Terms shall be deemed effective unless such amendment, waiver, modification or deletion shall have been approved and accepted in writing by a duly authorized officer of Seller.
2. Products. Seller agrees to supply and Buyer agrees to purchase from Seller those products (“Products”) listed on the attached Sales Order and/or accompanying invoice, subject to the Terms.
3. Prices. All prices will be quoted in U.S. Dollars FCA (Incoterms 2010) the Seller manufacturing plant in Pennsylvania. Unless otherwise indicated herein, the prices specified do not include any taxes, and all such excise taxes, sales and use taxes, value-added taxes, customs fees, duties and other charges now or hereinafter applicable to this transaction shall be paid by Buyer. Shipping charges will be added onto the invoice when Buyer requests that the carrier be contracted by Seller. A handling charge may be added to the cost of all Products regardless of shipping method.
4. Shop Drawings.
- 4.1 Additional work beyond the scope of producing standard shop drawings may be charged to the Buyer at a rate of Forty-Eight Dollars ($48.00) per hour. Additions would include, but are not limited to:
- Redrawing shop tickets due to errors in original documentation supplied by the Buyer.
- Producing 2D line work and 3D models on products where the Buyer has previously agreed to supply CAD or 3D models, but cannot.
- Services which are not directly related to the production of the form liner, i.e., elevation layouts and form assemblies showing the Buyer’s formwork at the request of the Buyer.
- 4.2 The Buyer agrees that quoted lead times are contingent on the date of approved Seller shop drawings by the Buyer and not the date of the Purchase Order.
- 4.3 The final approval of the Seller’s shop drawings will be the sole responsibility of the Buyer.
5. Payment Terms. Terms of payment are at the sole discretion of Seller and, unless otherwise agreed to in writing by Seller, a non-refundable fifty percent (50%) down payment is required to process an order, and the remaining fifty percent (50%) shall be due and payable upon or prior to tender of delivery of the Products at the Seller facilities. Orders may not be cancelled under any circumstances except with Seller’s prior written approval. Seller may extend to Buyer credit terms as expressly set forth on the Sales Order. Failure to make payment in full within five (5) business days of tender of delivery or, if payment terms are granted, by the due date, shall constitute a material breach of this Agreement, and shall result in interest being charged to Buyer at a rate of eighteen percent (18%) per annum on the unpaid balance until paid in full. If such interest rate is found to be usurious under relevant law, interest shall be charged to Buyer at the highest rate allowed by law. Buyer shall pay all such principal and interest. In addition, Buyer shall pay Seller’s cost of collection for delinquent accounts, including Seller’s court costs and reasonable attorneys’ fees.
6. Title and Risk of Loss. Title to the Products passes from Seller to Buyer at the time of shipment from Seller’s facility. Loss or damage that occurs during shipping is the responsibility of Buyer. Buyer shall notify Seller within five (5) business days after receipt of the Products regarding shipment shortages, defects or the receipt of non-conforming goods. Failure to do so will constitute conclusive proof that the Products were tendered at the Seller facilities without defect, error or fault.
7. Intellectual Property Rights. Seller reserves all patent, copyright, proprietary design, manufacturing, reproduction and sale rights to all products that Seller manufactures and sells. Buyer may not obtain trademark or copyright protection for any products, trademarks or other intellectual property sold by Seller.
8. Warranty; Warranty Period; and Limitation of Liability.
- 8.1. Seller warrants that the Products shall be free from defects in materials and workmanship, including latent defects, as of the date that Buyer takes title to the Products (the “Warranty”). THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR PARTICULAR PURPOSE.
- 8.2. The Warranty shall be effective for the period beginning on the date that Buyer takes delivery of the Products and ending on the date thirty (30) days thereafter (the “Warranty Period”). Certain multiple “elastomeric formliner” Products may have a prorated usage warranty which may extend beyond the foregoing Warranty Period. In the event that the Products are found to be defective in material or workmanship, or otherwise not in conformity with the Terms, within the Warranty Period, Seller will promptly cure such defect or nonconformity, at its option, by repairing or replacing the defective or nonconforming Products, without cost or delay to Buyer. If such defect or nonconformity is not promptly cured, Buyer’s sole and exclusive remedy shall be recovery of the full purchase price of the Products. BUYER EXPRESSLY AGREES THAT THIS REMEDY CONTAINED IN SELLER’S WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY AGAINST SELLER, AND THAT UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER FOR ANY OTHER LOSSES OR EXPENSES, INCLUDING BUT NOT LIMITED TO ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, CONTINGENT OR PUNITIVE DAMAGES WHATSOEVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, INTELLECTUAL PROPERTY INFRINGEMENT OR OTHERWISE. THIS WARRANTY IS VOID AND SELLER DISCLAIMS ALL LIABILITY IF BUYER ALTERS OR MISUSES THE PRODUCTS, OR USES THE PRODUCTS IN A MANNER WHICH IS INCONSISTENT WITH SELLER’S GUIDELINES.
9. Force Majeure. Seller shall not be liable for any failure to perform under this Agreement resulting from any cause beyond the reasonable control of Seller, including but not limited to, an act of God; accident; telephone service provider problem; war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the public enemy; enactment, rule, order or act of civil or military authority; or acts or omissions of any party, including Seller’s vendors.
10. Venue; Jurisdiction; and Applicable Law. This Agreement shall be construed, interpreted and governed in accordance with the laws of the Commonwealth of Pennsylvania without regard for conflicts of law provisions. Both parties irrevocably agree to submit themselves to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Pennsylvania and further agree and consent that service of process may be made upon the parties in any legal proceeding relating to this Agreement by any means allowed under federal or Pennsylvania law, and that any judgment and/or award rendered by any court may thereafter be entered for enforcement in any court in the Commonwealth of Pennsylvania, and that such judgment and/or award shall be binding on all parties. The provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods (as amended, superseded or modified from time to time) shall not govern the rights and obligations of the parties under this Agreement.
11. Compliance with Laws. Each party shall comply with all applicable laws, ordinances and regulations, whether local, state, federal or international in nature. Buyer shall obtain and maintain at its own expense any governmental approval, consent, license or other authorization necessary to the performance of this Agreement. Buyer agrees that it shall comply with all export regulations of the United States of America governing the re-sale or re-export of the Products. Buyer hereby certifies to Seller that the Products shall be used only in the United States of America and shall not be resold or re-exported from the United States of America unless in full compliance with the Export Administration Regulations of the United States of America (as amended, superseded or modified from time to time).
12. Notices. All notices, acceptances, requests and other communications shall be in writing and shall be deemed to have been duly given if delivered personally or by expedited delivery service or mailed by certified or registered mail, return receipt requested, to Seller or Buyer at the address set forth for each of them on the accompanying Sales Order and/or invoice, or to such other address as any party hereto shall designate to the other party in writing in accordance with this Section 12.
13. Indemnification. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by Buyer’s insurers, causes of action, controversy, liabilities, fines, regulatory actions, losses, costs, expenses (including, but not limited to attorneys’ fees, expert witness expenses and arbitration expenses) (hereinafter “Claim”), arising from or in connection with any Claim asserted against Seller for any damage arising from or connected to any act or omission of Buyer, whether in tort, contract or otherwise.
14. Severability. If any provisions of this Agreement, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or its application to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and the remainder of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law.
15. Miscellaneous. Neither party may assign this Agreement, in whole or in part, without the express written consent of the other party, which shall not be unreasonably withheld or delayed. This Agreement sets forth all of the promises, covenants, agreements, conditions and understandings of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, with respect hereto. This Agreement may not be changed, altered or amended except in writing signed by both parties. Each party hereto warrants and represents that it has the full authority, capacity and power to enter into this Agreement and that upon execution, this Agreement shall become a binding obligation on each party. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.