1. GOVERNING PROVISIONS. AP PLASTICS, LLC ("APP") is offering to provide the goods and/or services described herein (the Products") to the buyer to which this offer is addressed ("Buyer"), subject to the terms and conditions set forth herein (the "Agreement"). Buyer may not modify, change, renounce or waive any term or condition hereof without APP’s express written consent. APP agrees to provide to Buyer the Products and Buyer accepts the Products only on the terms of this Agreement. Buyer may not amend, modify or replacethe terms of this Agreement in any agreement or purchase order (oral or written), if one exists, or other writing or oral representation previously or hereafterreceived by APP purporting to amend, modify or replace the terms of this Agreement with any conflicting, different or additional terms or reciting that any action or inaction by APP constitutes agreement or consent by APP to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein. APP hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless APP expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of APP’s offer unless such variances are in the terms of the description, quantity, price or place or date of delivery of the Products, and APP’s offer shall be deemed accepted without such additional, different or varying terms.
2. ACCEPTANCE. Buyer shall be deemed to have made an unqualified acceptance of this Agreement by clicking the checkbox reading "I have read and agree to the Terms and Conditions" on the final checkout page in the applasticsllc.com shopping cart. APP is deemed to have made an acceptance of this agreement upon shipment of Products.
3. CANCELLATION OR MODIFICATION; RETURNS. Buyer may not cancel or modify its order except upon terms accepted by APP in writing. In the event of any cancellation or modification, Buyer shall compensate APP for all costs and damages resulting there from, including, but not limited to, out-of-pocket expenses and lost profits. No Products may be returned to APP without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization within 60 days. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach APP without damage. Any cost incurred by APP to put Products in first class condition will be charged to Buyer. All Product returned to APP shall be subject to a 25% restocking charge plus the costs of freight, packaging, insurance and any import or export costs.
4. TAXES. Buyer shall pay any tax (including sales tax), duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between APP and Buyer in addition to the prices quoted or invoiced.
(a) Generally: For sales and shipments within the United States, APP shall deliver the Products F.O.B. APP's facility at 103 Foster Street, Peabody, MA 01960(the "Facility"). All risk of loss, damage or delay, and title to Products, shall pass from APP to Buyer at the Facility. Partial shipments shall be permitted.
(b) Delivery Dates: All delivery dates are approximate. Delivery dates given by APP are based on prompt receipt of all necessary information regarding the order. APP will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by APP to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.
(c) Delivery Delays: Any delay in delivery due to causes beyond APP’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer's (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide documents required for APP to effect delivery, APP will store all Products at Buyer's risk and expense. Buyer shall pay all storage costs and expenses upon APP’s demand.
(d) Claims: Claims for shortages or other errors must be made in writing to APP within ten days after APP’s delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
(e) Orders: Buyer shall ensure that its orders are received by APP not less than 10 working days before the requested delivery dates. Buyer's orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change orders so state. Minimum online order quantity is $100 per order.
6. TERMS OF PAYMENT. We accept payments in US Dollars via VISA, MasterCard, and American Express. Payment is due and payable upon clicking the "Place Order" button on applasticsllc.com. Payment does not constitute APP’s acceptance of the order. APP’s declination of an order shall be remedied by a refund of payment to Buyer within 30 days.
7. SECURITY. If, during performance of this Agreement, Buyer's financial condition does not justify the terms of payment specified, APP may (a) demand, before proceeding with delivery of Products, full or partial payment in advance, satisfactory security or guaranties that invoices will be promptly paid when due or (b) at its option and without prejudice to other remedies, defer delivery of the Products or cancel this Agreement. Buyer agrees to reimburse APP for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by APP in collecting any sums owed by Buyer to APP. Buyer agrees to pay a late payment charge of 1‑1/2% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on APP’s demand. Buyer shall not set off amounts due to APP against claims or other amounts.
8. LIMITED WARRANTIES AND REMEDY.
(a) Products In Original Packaging and not Manufactured by APP: IF BUYER IS PURCHASING PRODUCTS IN THEIR ORIGINAL PACKAGING AND NOT MANUFACTURED BY APP, THE ONLY WARRANTY AVAILABLE TO BUYER AS TO THE PRODUCTS SHALL BE ANY MANUFACTURER'S WARRANTY WHICH MAY APPLY AND APP MAKES NO INDEPENDENT WARRANTIES. APP does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
(i) Limitations and Remedies. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow APP’s instructions or improper installation, storage or maintenance. Buyer must make claims for defects in writing within 10 days after discovery of such defects. Buyer's failure to make such claim within the warranty period and within 10 days after discovering a defect shall constitute Buyer's irrevocable acceptance of the Products and Buyer's acknowledgement that the Products fully comply with the terms and conditions of this Agreement. APP shall repair or replace, at its expense, any covered Products proved to APP’s satisfaction to be defective within the warranty period. Such warranty satisfaction shall be available only if: (i) APP is notified in writing within 10 days after discovery of an alleged defect; (ii) the defect has not been caused by Buyer's misuse, neglect or alteration or by physical environment; and (iii) the manufacturer's shelf life of the Product (as indicated on the Product's packaging) has not expired when the alleged defect is discovered. APP’S SOLE OBLIGATION AND BUYER'S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPLACEMENT OR REPAIR OF DEFECTIVE PRODUCTS. Notice of any warranty claim or request for warranty service should be sent to APP at the following address: AP PLASTICS, LLC, 103 Foster Street, Peabody, MA 01960, Attention: Customer Service. Any assistance APP provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. APP will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with APP’s prior written permission.
This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.
(b) NO LIABILITY FOR OTHER OBLIGATIONS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES: APP SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS (WHETHER THE PRODUCTS ARE IN ORIGINAL PACKAGING OR HAVE BEEN REPACKAGED) OR APP’S UNDERTAKINGS, ACTS OR OMISSIONS. IN NO EVENT SHALL APP BE LIABLE FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES. APP’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO APP FOR THAT DEFECTIVE PRODUCT.
Some states do not allow the exclusion or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.
9. DISCLAIMER OF IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. APP AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES. APP HEREBY DISCLAIMS ALL OTHER EXPRESS WARRANTIES. FOR COMMERCIAL PRODUCTS, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. FOR CONSUMER PRODUCTS, WARRANTIES IMPLIED BY LAW, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY LIMITED TO THE PERIOD OF THE WARRANTY STATED ABOVE FOR THE RELEVANT PRODUCT. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer assumes all risk and liability whatsoever in connection therewith. Buyer agrees that APP has no post–sale duty to warn Buyer or any other party about any matter or, if such duty exists, APP satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post–sale duty to warn its customers and indemnifies APP against any Damages in connection with such duty or failure to warn. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer.
10. ASSIGNMENT. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party; provided, however, APP may assign, without Buyer's consent, this Agreement or its interest herein to any affiliate or to any corporation succeeding to APP’s business. Subject to the foregoing, this Agreement shall bind and inure to the benefit of APP and Buyer and their successors and assigns.
11. GOVERNING LAW. The internal laws of the Commonwealth of Massachusetts shall govern the rights and obligations of APP and Buyer under this Agreement. Neither this Agreement nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a Court situated in the Commonwealth of Massachusetts. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court.
12. MISCELLANEOUS. APP reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. The failure of APP to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, the U.S. Export Administration Act and all regulations thereunder. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of APP. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on APP’s behalf. The provisions found in sections 11, 12, 16, 18, 19 and 20 and the warranty and damage limitations in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties' agreement for any reason. All of APP’s remedies herein are cumulative and not exclusive of any other remedies available to APP at law, by contract or in equity.
13. ENTIRE AGREEMENT. THIS CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN APP AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT AND ANY AND ALL PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT SHALL HAVE NO FORCE OF EFFECT, UNLESS IN WRITING AND SIGNED BY AUTHORIZED OFFICERS OF APP AND BUYER. APP’S SALES REPRESENTATIVES ARE WITHOUT AUTHORITY TO CHANGE THE TERMS OF THIS AGREEMENT.
14. PRICE; TERMS. Prices shall be the higher of APP’s most recent quote to Buyer, prevailing market price, APP’s list price, or the last price charged by APP to Buyer for the Products. Prices are in U.S. Dollars, F.O.B. Peabody, MA USA. APP shall have no obligation to ship Product to Buyer unless APP shall have accepted the order and Buyer shall have paid for such order of Products in full prior to the time of delivery.
15. SHIPPING; INSURANCE. Buyer shall pay for all costs of shipping. Buyer shall fully insure all materials delivered to Buyer from F.O.B. Peabody, MA USA shipping point.
16. PATENT INFRINGEMENT AND DEFECTS IN BUYER'S SPECIFICATIONS. Orders manufactured to Buyer's specifications, drawings, designs or descriptions are executed only with the understanding that Buyer will indemnify and hold harmless APP from any and all damages sustained by APP, including, but not limited to, reasonable attorneys' fees, resulting from any action or threatened action against APP for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in Buyer's specifications, drawings, designs or descriptions.
17. FORCE MAJEURE. APP shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding APP’s available supply or any other cause beyond APP’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, APP may, at its option and without liability, prorate its deliveries, cancel all or any portion of the Agreement and/or extend any date upon which performance is due hereunder.
18. ENGINEERING DATA. All engineering data, design information and engineering and shop drawings used in the completion of this order are and shall remain APP’s property. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of APP. APP hereby gives its permission to the Buyer to distribute product data or operation and maintenance information to the end user.
19. INDEMNIFICATION. Buyer hereby releases and agrees to indemnify, defend and hold harmless APP, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers ("APP’s Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs ("Damages") incurred by or against APP or any of APP’s Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreement contained in this Agreement or any law by Buyer or any of Buyer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Buyer's Parties"), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer's Parties, or (iii) losses, damages or injuries caused by Buyer's products, Buyer's specifications, designs, approvals or instructions provided to APP, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give APP an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without APP’s written consent. In the event of any recall affecting the Products, APP shall have the right to control the recall process and Buyer shall fully cooperate with APP in connection with the recall.