These Terms and Conditions shall apply to the sale and supply of Products by American Packing & Gasket Opco, LLC ("Supplier", “The Company” or “APG”) to the Customer.
The contract governing the sale and supply of Products by the Supplier to the Customer shall in each instance consist of (i) these Terms and Conditions, (ii) the Sales Estimate (if applicable), and (iii) the Confirmation (if applicable), which shall be to the express exclusion of any other terms and conditions (including any Customer terms and conditions) referred to in any negotiations, Customer purchase orders, confirmations and similar documents, or course of dealing between the parties.
The Supplier reserves the right to modify these Terms and Conditions at any time to reflect changes in how the Supplier accepts payment from the Customer, changes in relevant laws and regulatory requirements and any other circumstances which are reasonable in the Supplier's opinion. If the Supplier modifies these Terms and Conditions, the Supplier will post the modification on its website and/or notify the Customer of the modified Terms and Conditions. The Supplier will also update the "last updated" date at the top of these Terms and Conditions. Every time the Customer orders Products from the Supplier, the Terms and Conditions published on the Supplier's website at that time or previously notified by the Supplier to the Customer will apply to the applicable Contract.
These terms and conditions of APG are the only terms which govern the sale of APG products and comprise the entire agreement between APG and a purchaser of its products, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
2. Order and Confirmation
The Supplier shall supply Products ordered by the Customer that are accepted by Supplier from time to time in accordance with these Terms and Conditions.
Each order placed by the Customer shall be deemed to be a separate offer to purchase Products under these Terms and Conditions which the Supplier shall be free to accept or decline at its absolute discretion.
Each Contract shall consist of these Terms and Conditions and (to the extent applicable) the Sales Estimate and the Confirmation, to the exclusion of any terms and conditions the Customer may seek to impose.
The Supplier reserves the right to decline to accept or reject any order for Products or to impose reasonable conditions prior to accepting any order (including the prior receipt of a letter of credit or cleared funds from the Customer) including where the Supplier considers it reasonably necessary for security or fraud prevention purposes or to comply with any applicable laws or regulations in the country of sale, distribution or use.
All orders placed by the Customer via the Supplier's website shall be subject to these terms and conditions and shall be specified on that website.
Unless otherwise stated in the quotation, prices issued by a written standard quotation are firm for 30 days from date of quotation. Purchase orders received and acknowledged within this 30-day period will be price protected for shipment within 90 days from the date of the order.
Once an order has been accepted by the Supplier it cannot be cancelled, varied or suspended by the Customer without the written agreement of the Supplier.
In the event of any conflict between the following, the order of precedent between them shall be as follows: first, the Confirmation; second, the Sales Estimate; and third, these Terms and Conditions.
3. Descriptions, Samples and Literature
All information contained in or derived from the materials are published for the sole purpose of giving the Customer an approximate idea of the products described in them and shall not be relied on in any way by the Customer or form part of the Contract except as otherwise expressly provided in the Sales Estimate and/or the Confirmation.
Any typographical, clerical or other manifestly obvious error or omission in any quote, price list, Confirmation, label, packaging, invoice or other document or information issued by the Supplier may be corrected by the Supplier, without liability to the Customer, at any time either by correcting any such matter in public by publishing the correction on the Supplier's website or by notifying the Customer in writing and such correction shall be immediately binding upon the Customer.
4. Fitness for Purpose and Specifications
The Customer will undertake appropriate tests to ensure that the Products are fit for all of the Customer's purposes. The Customer expressly acknowledges that, irrespective of any guidance provided to it by the Supplier, in determining whether the Product will be fit for all its purposes, it is not relying on (i) the Supplier's skill and judgement, or (ii) any Materials which are provided or made accessible by the Supplier to the Customer.
A Specification in relation to a Product shall only take effect and form part of a Contract where specified in the Sales Estimate and/or the Confirmation (and in each case this may be facilitated by way of a cross-reference to a pre-agreed specification document). The parties may agree a process for producing and agreeing a Specification, which shall be set out in the Sales Estimate. A Specification may include, among other things, details of the Products measurements, tolerances, regulatory compliance, packaging and compliance with quality standards
The price of Products shall be the price specified in the Sales Estimate or as otherwise agreed and specified in the Confirmation (as applicable). Prices specified in a Sales Estimate will be subject to review and possibly change from time to time in accordance with the mechanism specified in that Sales Estimate.
The Supplier will act in good faith to ensure that prices are accurately specified in any quote and in the Materials.
Additions to orders already processed shall be considered separate orders and shall be priced accordingly.
Where carriage or other costs to be borne by the Customer are paid by the Supplier, the Supplier shall be entitled to immediately render an invoice in respect of such costs.
Quotations and/or Estimates along with any other preliminary pricing information do not constitute an offer nor impose any responsibility or liability on APG.
All prices shall be referenced in United States Dollars and shall be subject to additional federal, city and state taxes, if applicable, unless appropriate exemption certificate is on file at APG’s corporate office.
The Supplier shall at its discretion be entitled to invoice the Customer for payment of the price of any Products or any other amounts in advance. The Supplier reserves the right, where the Customer is required to pay for an order in advance, to suspend Delivery of any Products pending receipt of payment.
Buyers may be required to pay deposits based upon, but not limited to, the following conditions: 1) being a first-time customer, 2) poor or insufficient credit report, 3) special order products
Unless otherwise set out in a Sales Estimate or Confirmation, payment of the Supplier's invoice is due by the Customer (without deduction, discount, abatement or set-off) within 30 days of the date of the invoice, notwithstanding that Delivery may not have taken place or that property in the Products has not passed to the Customer. Time for payment of sums due from the Customer shall be of the essence. No payment will be deemed received until actually received by the Supplier in cash or cleared funds.
If the Customer is permitted to open a credit facility with the Supplier, it must furnish such information and references as may be requested by the Supplier and the Supplier may make a search with a credit reference agency in relation to the Customer. The Supplier reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit facility at any time. The Supplier may call any and all outstanding amounts under any such credit facility at any time, in which case, the Customer shall make such payments to the Supplier within 5 days.
If any sums are not paid on or before the due date for payment, interest will accrue on the amount unpaid at the rate of 4% per or the maximum rate allowable under applicable law. Such interest shall accrue on a daily basis from the due date until payment is made in full (both before and after any judgment).
If, in the opinion of APG, the Customers financial condition becomes impaired or unsatisfactory fails to make any payment when due pursuant to a Contract then, without prejudice to any other right or remedy available to the Supplier (including the right to charge interest), the Supplier shall be entitled to reimbursement for all costs and expenses (including reasonable attorney’s fees) incurred by it in connection with collection of any amounts for goods sold in the event payment therefore shall not be made when due. Supplier also reserves the right, in its sole discretion, to:(i) deduct outstanding sums from any sums owed by the Supplier to the Customer under the Contract or otherwise, (ii) require the Customer to pay any costs of storage of the Products, (iii) suspend any further deliveries to the Customer under the Contract or any other contract between the parties until paid, (iv) resell any Products not yet delivered to the Customer, and/or (v) retain any sums paid as deposit for the Products. The remedies set forth in this section shall be in addition to, and not exclusive of, any other rights it may have under the Uniform Commercial Code.
Where the Customer's order has been placed in the manner described above shall be EXWORKS, as defined by Incoterms 2010, APG’s shipping point. Additional details regarding the physical Delivery of the Products (including the date of collection by the Customer) may be agreed between the parties and set out in the Sales Estimate and/or Confirmation.
Supplier shall ship the Products to Customer, at Customer's risk, via a commercial carrier of Supplier's choosing and charge the customer reasonable markup for handling and service charge. Delivery of the Products to the Customer shall be affected by the Supplier delivering the Products to the carrier or by collection by the carrier. Thereafter, transport of such Products shall be subject to the carrier's conditions. Supplier shall have no liability for the acts or omissions of the relevant carrier, unless otherwise agreed and specified in the Confirmation. The Supplier may deliver Products earlier than any agreed delivery date.
The remainder of this clause 8 shall apply to all Contracts regardless of the manner in which the order was placed by the Customer.
Unless otherwise set out in the Sales Estimate or Confirmation, any periods of time or dates quoted for Delivery of the Products are estimates only. The Supplier will use its reasonable endeavors to deliver the Products by the delivery date set out in the Sales Estimate or Confirmation (as applicable). If the Supplier is unable to meet the delivery date because of an event outside the Supplier's control, the Supplier shall not be responsible for any damage or loss resulting, whether directly or incidentally, from delayed shipments or its inability to ship as above.
The Supplier may deliver up to 5 percent more or 5 percent less than the quantity of Products specified in the order and still be deemed to be in compliance with such Contract and the Customer shall accept such variation in quantity and shall pay the agreed price as adjusted to reflect such variation in quantity. Any claims for shortages must be made to APG within 2 weeks of shipment. Consignee must make all claims for loss or damage in transit to the carrier. APG will render assistance in presentation of such claims.
Where the Products are to be delivered in installments, each Delivery shall constitute a separate obligation and neither any failure by the Supplier to deliver nor any claim in respect of any one or more instalments by the Customer shall entitle the Customer to treat the Contract as a whole as repudiated.
If, upon Delivery of the Products, the Customer discovers that it has incorrectly ordered those Products, the Supplier's standard handling charge from time to time will be payable by the Customer if the Supplier agrees at its sole discretion to accept return of those Products at the Customer's risk.
No returned Products from any source will be accepted by Supplier, without written approval, together with shipping instructions, from Supplier. Returns will only be accepted 30 days from date of authorization. If permission is granted by Supplier, the returned Products will be subject to a 25% re-stock handling charge plus any freight cost incurred by the Supplier. Non-standard Products or custom fabricated items are not returnable in Supplier's sole and unfettered discretion. Unless otherwise agreed by Supplier, Products returned must be in their original, smallest, unopened packaging, or undamaged and in the same condition as when the Products were delivered to Customer.
8. Risk and Property in the Products
Title, legal and beneficial, in all Products supplied shall be retained by the Supplier until the Supplier has received in either cash or cleared funds all sums due in respect of the Products.
Following risk in the Products passing to the Customer, until such time as title in the Products passes to the Customer, the Customer must: (i) hold such Products (on a fiduciary basis for and on behalf of the Supplier) as the Supplier's bailee and act in good faith to protect the Supplier's interests in the Products, (ii) store such Products (at no cost to the Supplier) separately from all other goods of the Customer in such a way that such Products remain identifiable as property of the Supplier and shall not mix them with any other goods, (iii) not pledge or allow any lien, charge, or other interest to arise over the Products or their documents of title, (iv) not destroy or deface any identifying marks on such Products or relevant packaging and maintain such Products in satisfactory condition, and (v) keep such Products insured on the Supplier's behalf and in the event of any claim resulting from loss, theft or damage hold the proceeds of such insurance on trust for the Supplier.
In the event that the Customer fails to pay the price of the Products by the due date, the Supplier shall be entitled at any time to require the Customer to deliver the Products to the Supplier prior to title in the Products passing to the Customer. The Customer grants the Supplier and its agents the right at any such time to enter any premises where the Products are stored to inspect or, if the Customer has failed to deliver up possession when requested by the Supplier, to repossess the Products.
9. Quality of Products
The Supplier warrants that on Delivery all Products will be of satisfactory quality and, if applicable, will conform to the Specification.
The warranty contained in clause 11.1 shall not apply unless:
in respect of defects that are apparent on inspection of the Products, the Customer notifies the Supplier in writing, setting out in reasonable detail the nature of the breach of warranty within 10 days after Delivery;
in relation to latent defects, the Customer notifies the Supplier in writing setting out in reasonable detail the nature of the breach of warranty within 10 days after the defect became apparent or ought to have become apparent to the Customer, and in any event within 6 months of the date of Delivery;
after receiving such notice of the defect, the Supplier is given reasonable opportunity to inspect the Products and, at the Supplier's request, the Products are returned to the Supplier's place of business, at the Customer's risk and cost, for the purpose of inspection; and the total price for the Products has been paid by the Customer
The Supplier shall not be liable for any breach of the warranty in clause if:
the Customer makes any further use of the Products after giving notice in accordance with clause 11.2;
the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or, if there are none, good trade practice regarding the same;
the defect arises as a result of the Supplier following any drawing, design or specific requirement or instructions supplied or approved by the Customer, including any such thing which may constitute or form part of the Specification;
the Customer alters or repairs the Products without the written consent of the Supplier;
the Customer makes further use of or resells a Product after the Supplier gives notice of a defect or the Customer fails to comply with the Supplier's reasonable instructions in relation to a Product hold or recall;
the defect arises as a result of reasonable wear and tear, willful damage, negligence, or abnormal storage or working conditions;
the defect arises due to improper handling, storage, installation, operation or maintenance by Customer or a third party; or
the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
If the Customer fails to give notice of rejection in accordance with clause 11.2, it shall be deemed to have accepted the Products.
If the Customer rejects Products under clause 11.2 then the Customer shall be entitled to: (i) require the Supplier to repair or replace the rejected Products, or (ii) require the Supplier to repay the price of the rejected Products in full. Once the Supplier has complied with the Customer's requirement, it shall have no further liability to the Customer in respect of the rejected Products' failure to comply with clause 11.1.
To the extent permitted by law, the requirement to provide the remedy contained in clause 11.5 shall be the sole extent of the Supplier's liability arising out of or in connection with any breach of clause 11.1 or any other claim relating to the quality the Products.
10. Limitation of Liability
For the purposes of this clause 12, a "Claim" means a claim arising out of or in connection with the supply of any Products to the Customer or as a result of breach of a Contract or of any duty of any nature whatsoever by the Supplier or pursuant to any use made by the Customer or resale by the Customer of any Products (or of any product incorporating any of the Products) or as a result of any representation, statement, act or omission including negligence or breach of statutory duty arising under or in connection with a Contract.
The Supplier's aggregate liability (including any liability for the acts or omissions of its employees, agents, sub-contractors or other members of its Group) to the Customer for all Claims shall be limited as follows:
the Supplier's aggregate liability for a Claim in relation to any single item of Product shall be limited to the price payable by the Customer for that item; and
the Supplier's aggregate liability to the Customer for all other Claims brought in any calendar year shall be limited to the total amount paid by the Customer to the Supplier for Products during that calendar year.
The Supplier shall not be liable to the Customer for any (a) indirect losses, (b) economic loss, (c) loss of profits or anticipated profits, (d) loss of revenue, (e) loss of anticipated savings, (f) loss of business or of expected future business, (g) damage to reputation or goodwill, or (h) punitive, exemplary, treble, special, indirect or consequential loss, which in each case arises under or in connection with a Contract.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, SUPPLIER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE OR USE. THE SUPPLIER WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF ANY KIND WHATSOEVER WHICH ARISES OUT OF THE BREACH OF IMPLIED WARRANTIES, TERMS OR CONDITIONS, OR BREACH OF ANY DUTY OF ANY KIND IMPOSED ON THE SUPPLIER BY OPERATION OF LAW.
Nothing in these Terms and Conditions shall exclude or limit the Supplier's liability in respect of (i) any death or personal injury caused by its gross negligence, (ii) any fraud or fraudulent misrepresentation, or (iii) any other liability to the extent that it may not be so excluded or limited by law.
If the Customer becomes aware that any third party has made or appears likely to make any claim against the Customer in respect of the Products (including as to defects in them or rights infringed by them) it shall: (i) promptly notify the Supplier of such claim or circumstance, (ii) promptly take such action as the Supplier may reasonably request to avoid, dispute, defend, mitigate, resist, appeal or compromise such claim or circumstance including to allow the Supplier to take full control of any proceedings or negotiations in connection with the claim, and (iii) not settle or compromise, make any admissions, nor agree any matter in the conduct of any dispute, without the prior written approval of the Supplier.
The Customer acknowledges that the limitations of liability set out in these Terms and Conditions are reasonable and reflect the commercial intentions of the parties in the context of the anticipated earnings of the Supplier under a Contract and the ability of the Customer to protect itself through insurance.
11. Events Outside the Supplier's Control
The Supplier will not be in breach of the terms of a Contract for any delay in performing, or failure to perform, its obligations under the Contract if that failure or delay was due to any cause or circumstance beyond the Supplier's reasonable control, which shall, without limiting the generality of the term, include war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break down or damage to machinery or equipment, fire, flood, severe adverse weather, acts of God, strike, lock-out or other industrial disputes or shortage of materials at the market rates existing when the Contract is made, legislative or administrative interference (including, for example, Sanctions, embargos and Export Controls) or was due to any failure, neglect or delay on the part of the Customer or its agents or representatives.
Without affecting any other rights and remedies, the Supplier may immediately terminate a Contract if: (i) the Customer fails to pay any sum due under the Contract by the due date for payment and remains in default not less than 14 days after being notified in writing by the Supplier to make such payment, (ii) the Customer materially breaches any term of the Contract, (iii) the Customer makes any composition or voluntary arrangement with its creditors or any step, application, order, proceeding or appointment is made or taken by or in respect of the Customer (including the making of an application or the giving of any notice) by the Customer or any other person for a distress, execution, winding up, dissolution, or to appoint an administrator of the Customer or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), (iv) an encumbrance takes possession, or a receiver (administrative or otherwise) is appointed, of any of the property or assets of the Customer, or the Customer ceases, or threatens to cease, to carry on business, or (v) the Supplier possesses bona fide and justifiable reason to believe that any of the events specified in (iii) or (iv) above is likely to occur and notifies the Customer accordingly.
Where the Supplier terminates the Contract in accordance with clause 14.1, without prejudice to clauses 10.3 or 10.4 or to any other right or remedy available to the Supplier: (i) the Supplier shall be entitled to terminate any other contract or suspend any further deliveries under any other contract between the parties, (ii) where the Products have been delivered, but not paid for, the Customer's right to possession shall terminate and the Supplier may dispose or use any of the Products as it wishes, and (iii) the price for the Products shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Termination of the Contract, for whatever reason, shall not affect any of its provisions which are expressed or are intended to continue to have effect after it has come to an end; provided that, in the event the Contract is terminated, the Supplier shall have no further obligations to fill any outstanding orders.
Without prejudice to the Supplier's other rights and remedies and to the fullest extent permitted by law, the Customer shall indemnify and keep indemnified the Supplier, its Group and its employees and agents on demand in full against any loss, liability, damage, costs, claims and expenses (including but not limited to attorneys' fees, experts' fees and costs of litigation) incurred or suffered as a result of: (i) any claim brought by any third party in respect of losses, injury or damage caused by any Products which, following Delivery, have been subjected to any use other than the authorized use for the Products (being the use for which the Products are commonly supplied) or modified or repaired by a person other than the Supplier, (ii) any allegation or claim made against the Supplier by a third party in relation to the actual or purported infringement of that third party's Intellectual Property Rights due to the incorporation into a Product design of any requirements, designs, specifications or other materials (including third party components) stipulated or provided by the Customer, (iii) the negligence of Customer, and (iv) the breach by Customer of any of the terms and conditions of this Contract.
14. Intellectual Property Rights
Save where otherwise agreed in a Sales Estimate and/or Confirmation, the Supplier and/or the Supplier's licensors shall own all Intellectual Property Rights in the Products and any Materials and the Customer will not acquire any other right, title or interest in or to the Supplier's Intellectual Property Rights (or any development, enhancement, improvement, or derivative thereof, regardless of inventorship).
The Customer is not granted any rights or license in respect of the Products, other than the right to use or resell the Products in the Customer's ordinary course of business and otherwise in accordance with the terms and conditions of the Contract; provided, that all Products sold by Customer shall bear the Supplier's trademarks that were on the Product when sold to the Customer which the Customer shall not remove, alter or efface. Products may contain patent numbers or other markings or designations which Customer shall not remove, alter or efface.
The Supplier grants to the Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view and (unless shown as not permitted) download and print the Materials in each case solely for the Customer's personal purposes. The foregoing does not, however, grant or extend to the Customer any ownership interest in or license to use (or right to sublicense) the Materials except as expressly set forth in the foregoing sentence.
The Customer shall not use, copy, adapt, transmit, distribute, modify, publish, reverse engineer, create derivative works based upon, distribute, license, sell, transfer, publicly perform, broadcast, communicate to the public or otherwise exploit the Materials except as expressly permitted in these Terms and Conditions or otherwise without the Supplier's prior written consent.
Except to the extent necessary for the maintenance or repair thereof, the Customer shall not (and shall not direct or permit any third party to) disassemble any Product or decompile, analyze or otherwise seek to reverse engineer any Product in an effort to discover the Product's design, structure, construction or formulation therein.
Because money damages would not be a sufficient remedy for any breach or threatened breach by the Customer of this clause 16, the Supplier shall be entitled to specific performance, injunctive or other equitable relief to enforce the provisions of this clause 16, without the necessity of proving irreparable harm, without the necessity of posting bond, and without waiving any other remedies available to it, at law or in equity. In the event of such an action, the Supplier shall be entitled to recover its attorneys' fees and costs of litigation.
15. Export Controls and Sanctions
The Customer warrants and represents that neither it, nor any of its Group, nor any directors, officers or employees of any of its Group: (i) is a Restricted Party or is engaging in or has engaged in any transaction or conduct that could result in it becoming a Restricted Party, (ii) has engaged or is engaging, directly or indirectly, in any trade, business or other activities with, for the benefit of, or on behalf of, any Restricted Party, (iii) has violated or is violating applicable laws, statutes, regulations and codes relating to Export Controls or Sanctions.
The Customer acknowledges that some of the Products, their components and technologies may be subject to Export Controls and Sanctions. The Customer shall: (i) comply with Export Controls and Sanctions applicable to both the Supplier and the Customer, (ii) not export, re-export, transfer or trade, directly or indirectly, with or to any Restricted Party nor any person or entity incorporated or located in any country subject to Sanctions, (iii) obtain at its cost any license, permit, notification or authorization required to sell, export, re-export, transfer or import the Products, their components and technologies, and (iv) ensure that the end-use of the Products will not breach any Export Controls or Sanctions, including weapons of mass destruction and military end-use controls.
The Customer understands and contractually accepts that the Supplier's right to sell and export goods, technology, data or services is subject to the continuing approval of governmental authorities. The Customer shall agree and cooperate with any verification audit/on-site inspection at the Customer's facilities requested by the Supplier or the Supplier's customs authorities to verify compliance with the Export Controls and Sanctions Laws, statutes, regulations and codes. The Supplier shall have the right to immediately terminate any sale of performance under these Terms and Conditions upon notice to the Customer in order to comply with the Export Control and Sanction laws, statutes, regulations and codes, or at the request of governmental authorities. The Customer shall indemnify and hold the Supplier harmless for any penalties, obligations, fines, liabilities or other similar losses (collectively, "Losses") incurred by the Supplier stemming from violations, charges, investigations or enforcement actions concerning the Export Control and Sanctions laws, statutes, regulations and codes, to the extent such Losses resulted from actions by the Customer.
The Contract contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) in respect of the Products. The Customer acknowledges that it is entering into the Contract without reliance on any undertaking, warranty, or representation given by or on behalf of the Supplier, other than as expressly contained in the Contract (or any document expressly incorporated into the Contract).
The parties acknowledge that in performing their obligations hereunder, each party is acting as an independent contractor. Nothing in this Contract shall be construed to create a partnership, joint venture, franchise or other similar arrangement between the parties. Neither party has the authority to enter into any agreement or make any warranty or representation on behalf of the other party, except where and to the extent specifically authorized to do so in writing. To the extent that either party utilizes its employees for the performance of its duties pursuant to this Contract, that party shall be solely responsible for the payment of salaries and wages to such employees and matters relating thereto (including the withholding and/or payment of all federal, state and local income and other payroll taxes), workers compensation, disability benefits, and all such other legal requirements of like nature applicable to such employees.
The Customer shall not transfer, assign, sub-contract or deal in any other similar manner any of its rights or obligations under the Contract or purport to do any of the same without the prior written consent of the Supplier.
Any notice shall be in writing (which shall include email) and addressed to the other party at, in the case of the Supplier, the address or email address specified in the Sales Estimate and/or Confirmation (as applicable) and in the case of the Customer at the address or email address specified in the Sales Estimate or (if that is not applicable) at its registered address or an email address it may have used to place an order for Products with the Supplier. Hand delivered notices shall take effect immediately; postal notices, two Working Days after posting by first class post (five Working Days if sent by airmail post); and notice sent by email, at the date and time the email is sent (unless an out-of-office message is received by the sending party, in which case notice will not have been validly served).
If any of the provisions in these Terms and Conditions are found to be inconsistent with or contrary to any applicable law, same shall be deemed to be modified to the extent required to comply with applicable law (it being the intention of both the Supplier and the Customer to enforce to the fullest extent all of these Terms and Conditions), and as so modified, these Terms and Conditions shall continue in full force and effect. In the event such provisions cannot be deemed or modified automatically, the Supplier and the Customer agree to meet to attempt to reach agreement on a conforming modification to such provision. In the event any provision cannot be modified to comply with applicable law, then that term or provision shall be deemed to be deleted from these Terms and Conditions and the remaining provisions shall remain in full force and effect.
No omission or delay on the part of any party in exercising any right, power or privilege under the Contract shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under the Contract.
IF CUSTOMER IS OWNED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, BY AN COUNTRY OR SOVERIGN, OR IS AN AUTHORITY OR AGENCY OF ANY COUNTRY OR SOVERIGN, THEN CUSTOMER HEREBY WAIVES ANY AND ALL RIGHTS AND IMMUNITES, INCLUDING ANY IMMUNITIES FROM LAWSUITS, CLAIMS, PREJUDGMENT SIEZURE, ARREST OR ATTACHMENT IT MAY HAVE UNDER ANY STATUTE, LAW, RULE OR REGULATION OF ANY COUNTRY OR SOVERIGN.
The rights and remedies arising under, or in connection with, the Contract are cumulative and, except where otherwise expressly provided in the Contract do not exclude rights and remedies provided by law or otherwise including any right to specific performance or injunctive relief.
This Contract shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Texas (not including the choice of law rules thereof). The United Nations Convention on the International Sale of Goods shall not apply to the Contract. To the extent relevant the international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms 2010) shall apply (unless agreed otherwise) but where they conflict with the Contract, the Contract shall prevail.
THE SUPPLIER AND THE CUSTOMER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, THE SUPPLIER AND THE CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PURCHASE ORDERS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any and all disputes, complaints, controversies, claims and grievances arising under, out of, in connection with, or in any manner related to this Contract or the relationship of parties hereunder shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The obligation to arbitrate shall extend to any affiliate, subsidiary, officer, employee, shareholder, principal, agent, trustee in bankruptcy or guarantor of a party making or defending any claim hereunder. Any decision and award of the arbitrator shall be final, binding and conclusive upon all of the parties hereto and said decision and award may be entered as a final judgment in any court of competent jurisdiction. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Houston, TX, before one (1) arbitrator who shall be an attorney who has substantial experience in commercial law issues. However, neither party shall institute an arbitration, or any other proceeding to resolve such disputes between the parties before that party has sought to resolve disputes through direct negotiation with the other party. If disputes are not resolved within three (3) weeks after a demand for direct negotiation, the parties shall attempt to resolve disputes through mediation conducted in Houston, TX. If the parties do not agree on a mediator within ten (10) days, either party may request the American Arbitration Association to appoint a mediator who shall be an attorney who has substantial experience in commercial law issues. If the mediator is unable to facilitate a settlement of disputes within forty-five (45) days, the mediator shall issue a written statement to the parties to that effect and the aggrieved party may then seek relief through arbitration as provided above. The fees and expenses of the mediator shall be split and paid equally by each of the parties. In the event of any arbitration between the parties hereto involving this Contract or the respective rights of the parties hereunder, the party who does not prevail in such arbitration shall pay all the prevailing party's reasonable attorneys' and experts' fees, costs and expenses incurred by the prevailing party in resolving said matter. As used herein the term 'prevailing party' shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other's breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. Each party hereby consents to a single, consolidated arbitration proceeding of multiple claims, or claims involving two (2) or more parties. Either party may apply to any court of competent jurisdiction for injunctive relief or other interim measures as provided for elsewhere in this Contract, in aid of the arbitration proceedings, or to enforce the arbitration award, but not otherwise. Any such application to a court shall not be deemed incompatible or a waiver of this provision. The arbitrator shall be required to make written findings of fact and conclusions of law to support its award. Except as may be required by law, neither a party nor an arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. By execution of this Agreement, the Customer consents to the jurisdiction of the American Arbitration Association and waives any objection which Customer may have to any proceeding so commenced based upon improper venue or forum non coveniens.
Nothing in this clause 18 shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Supplier from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
17. USE OF SITE
Accessing, browsing or otherwise using the site indicates your agreement to all the Terms and Conditions of this agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink, so please read this agreement carefully before proceeding. If you do not agree to any of these terms, then please do not access or use the APG website. These Terms and Conditions apply to all users of the APG Website, including users who also may be contributors of text, content, information, and other materials or services on the Website.
Subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of interacting with APG Site content and shopping for personal items sold on the Site and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you. Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders at its discretion, including, without limitation, if we believe that customer conduct violates applicable law or is harmful to our interests.
You understand that when using the APG Website, you will be exposed to User Submissions from a variety of sources and that APG is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against APG with respect thereto, and agree to indemnify and hold APG, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
18. INTELLECTUAL PROPERTY
All text, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to APG or its affiliates. The collection, arrangement, and assembly of all Content on this Site (the "Compilation") belongs exclusively to APG or its affiliates. All software used on this Site (the "Software") is the property of APG, its affiliates or its Software suppliers. APG logos, slogans, trade names or words are registered trademarks, trademarks or service marks of APG, its affiliates, suppliers, or third parties. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.
19. ABILITY TO ACCEPT TERMS AND CONDITIONS
This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States, you are responsible for complying with your local laws and regulations. You affirm that you are either more than 16 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions.