APPLIED PROCESS EQUIPMENT, INC. – STANDARD TERMS AND CONDITIONS OF SALE
GOODS AND SERVICES SOLD BY APE IS EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS IN BUYER’S PURCHASE ORDER OR SIMILAR COMMUNICATION ARE OBJECTED TO AND SHALL NOT BE BINDING ON APE UNLESS AGREED TO IN WRITING BY AN APE CORPORATE OFFICER. BUYER’S ACCEPTANCE OF SHIPMENT OR PERFORMANCE AND/OR PAYMENT FOR THE GOODS OR SERVICES CONSTITUTES ACCEPTANCE OF APE TERMS AND CONDITIONS.
PRICE: Prices in effect at time of shipment of materials or performance of services shall prevail. All prices quoted by APE are subject to correction or change without notice. Prices do not include any use, excise, value-added or similar taxes. Where applicable, such taxes shall be billed as a separate item and paid by Buyer. A standard shipping charge is applied to each invoice for materials to cover the material preparation, packaging, freight and/or any additional costs associated with each shipment based on the value and/or weight of the shipment. Additional charges for local delivery may also apply. Export orders may be subject to other special pricing.
PAYMENT TERMS: Unless otherwise agreed in writing, terms of payment are thirty (30) days net, without setoff or deduction, from date invoice was mailed or materials are delivered, whichever is earliest, if Buyer’s credit has been approved prior to sale. A late payment charge of 1 1/2% per month (an annual percentage rate of 18%) shall be charged on all past due accounts and Buyer shall pay APE all costs incurred by it in collecting any past due account from Buyer, including, but not limited to, all court costs and attorney’s fees. However, if the foregoing charges exceed that rate which is the maximum
permitted by law, then such charges shall be calculated to be the highest allowable lawful rate. The remittance portion of the invoice shall accompany payment. Alternatively, payments and other adjustments must reference the invoice number.
WARRANTIES: Materials are sold only with such warranties as may be extended by the manufacturer of the product. Services performed by third parties are subject only to those warranties extended by such third parties. APE MAKES NO WARRANTY AND ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS ARE HEREBY EXCLUDED. Buyer is responsible for installation and use in accordance with manufacturer’s instructions. Products are sold for commercial use only and are not intended for use by consumers. APE specifically disclaims all warranties to those defined as
consumers under the Magnuson-Moss Act. APE personnel are not authorized to alter this policy.
LIMITATION OF LIABILITY: APE’s liability on any claim for loss or damage arising out of this contract or from the performance or breach thereof, or connected with any Materials or services supplied hereunder, or the sale, resale, operation or use of Materials, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such Materials or services or part thereof involved in the claim, REGARDLESS OF CAUSE OR FAULT. This limitation of liability reflects a deliberate and bargained-for allocation of risks between APE and Buyer and constitutes the basis of the parties’ bargain, without which APE would not have agreed to the price or terms of this contract. APE shall not under any circumstances, be liable for any labor charges without its prior written consent. APE SHALL NOT IN ANY EVENT BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES including, but not limited to, loss of profits or revenue, loss of use of Materials or associated products, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of customers of Buyer for such damage. If APE furnishes Buyer with advice or other assistance regarding any Materials or services supplied hereunder, or any system or equipment in which any such Materials may be installed, and which is not required pursuant to this contract, the furnishing of the advice or assistance will not subject APE to any liability, whether based on contract, warranty, tort (including negligence) or other grounds.
CANCELLATION AND RETURNS: Buyer may cancel an order by mutual agreement based upon payment to APE of reasonable and proper cancellation charges. Materials shall not be returned by Buyer without APE’s prior written authorization and payment by Buyer of a minimum restocking charge of 25%.
Authorized returns shall be returned at Buyer’s sole expense, freight prepaid. There are NO returns of special order or made-to-order items. No returns shall be accepted following 30 days after delivery. No credit will be issued for shipping charges or other special expenses.
SHORTAGE/OVERAGES: All shortages and/or overages must be identified within 14 days of the date of shipment.
FORCE MAJEURE: APE shall not be liable for failure to deliver or for delay in delivery or performance due to: (i) a cause beyond its reasonable control; (ii) an act of God, act or omission of Buyer, act of civil or military authority, governmental priority or other allocation or control, fire, strike or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer, delay in transportation; or, (iii) any other commercial impracticability. If such a delay occurs, delivery or performance shall be extended for a period equal to the time lost by reason of delay.
COMPLIANCE WITH LAWS: APE shall take reasonable steps to ensure Materials sold by it are in conformity with various nationally recognized standards and such regulations as may affect the Materials; however, Buyer recognizes the Materials are utilized in many regulated applications and that from time to time standards and regulations are in conflict with one another. APE makes no promise or representation that the Materials will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon, in writing as part of the contract between Buyer and APE. APE prices do not include the cost of any related inspections, permits or inspection fees.
GENERAL: All orders are subject to acceptance by APE. The terms and conditions in APE’s forms are incorporated herein by reference, and constitute the entire and exclusive agreement between Buyer and APE. Any representation, affirmation of fact and course of dealing, promise or condition in connection therewith or usage of trade not incorporated herein, shall not be binding on either party. If any provision hereof shall be unenforceable, invalid or void for any reason, such provision shall be automatically voided and shall not be part of this agreement and the enforceability or validity of the
remaining provisions shall not be affected thereby.