AMERICAN PANEL CORPORATION (APC)

 

GENERAL TERMS AND CONDITIONS OF SALE

(These Terms and Conditions apply to every Purchase Order)

 

NOTICE: Sale of any Products is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly rejected and will not be binding upon Seller unless agreed to in writing by an authorized representative of Seller. No pre-printed facility entry form shall be binding on or modify these Terms and Conditions even if signed by Seller’s representative. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Order shall not be binding on either party. Any order to perform work and Seller’s performance of work shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation or Order, any quotation by Seller shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s acceptance.

 

  1. DEFINITIONS. As used herein “Seller” means AMERICAN PANEL CORPORATION, “Buyer” means the party identified on the face of the Order. “Order” means the documents that comprise the agreement between Buyer and Seller for the sale of the Products, including these Terms and Conditions and any other documents incorporated herein by reference. “Products” means all articles, materials, work or services to be furnished by Seller to Buyer under the Order. “Terms and Conditions” means these General Terms and Conditions of Sale.

 

  1. PAYMENT. Buyer shall pay Seller all invoiced amounts in United States Dollars, without right of set-off, within thirty (30) days from date of invoice. Any invoice which is not paid in full by the due date will bear interest at the rate of eighteen percent (18%) per annum. Buyer shall pay all costs of Seller’s collection efforts including reasonable attorneys’ fees. Any delivery not in dispute shall be paid for regardless of other controversies relating to delivered or undelivered Products. If Buyer fails to fulfill any condition of its payment obligations Seller may suspend performance and delivery. Any costs incurred by Seller in accordance with such suspension (including storage costs) shall be payable by Buyer upon submission of Seller’s invoices. If at any time Seller reasonably determines that Buyer’s financial condition does not justify the continuation of Seller’s performance, Seller may require full or partial payment in advance or shall be entitled to suspend or terminate the Order.

 

  1. ACCEPTANCE. The Order becomes the exclusive agreement between the parties for the Products, subject to these Terms and Conditions.

 

  1. DELIVERY. Delivery shall be F.O.B. Seller’s facility. Buyer shall pay all delivery costs and charges or reimburse Seller for shipping charges plus ten percent (10%). Partial deliveries will be permitted. If Products do not correspond in quantity, type, or price to those itemized in the invoice for the shipment, Buyer shall notify Seller within ten (10) days of receipt. Seller may deliver any or all Products in advance of the delivery schedule.

 

  1. EXCUSABLE DELAYS. Seller shall not be liable for any delay in delivery of Products, or for any damages suffered by Buyer as a result of such delay, when such delays are the result of any causes beyond Seller’s control. All orders are accepted subject to Seller’s ability to obtain raw materials and are subject to Seller’s current manufacturing schedules, government regulations, orders, directives and restrictions. In the event of any of said contingencies, Seller shall have the right to cancel the Order or any part hereof without any resulting liability. If Seller is delayed by any acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and performance adjustment.

 

  1. MATERIALS. Materials furnished by Seller are subject to Seller’s standard tolerances for variations.

 

  1. WARRANTY. Seller warrants that all Products furnished hereunder will be free from defects in material and workmanship, conform to applicable specifications, drawings, samples and descriptions or other requirements of the Order and, unless Buyer’s design, be free from design defects. Seller warrants new parts for a period of twelve (12) months from delivery. If Products do not meet the above warranty, Buyer shall promptly notify Seller in writing within the applicable warranty period.   Buyer may return such Products, at Buyer’s expense, for repair, or, at Seller’s option, replacement. Repair or replacement shall be Buyer’s exclusive remedy. In no event shall Seller be liable for incidental or consequential damages. These warranties and remedies are conditioned upon the proper storage, installation, operation, and maintenance of the Products and conformance with the operation instruction manuals provided by Seller or its suppliers or subcontractors, if applicable. Seller does not warrant the Products or any repaired or replacement parts against normal wear and tear or damage caused by misuse, accident, or use against the advice of Seller. Any modification or repair of any of the Products not authorized by Seller shall render the warranty null and void. The advice of technical staff of Seller is available to Buyer but Seller not supervising the installation or use of the Products, does not warrant or guarantee such advice. OTHER THAN THE WARRANTIES SET FORTH ABOVE, SELLER MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.

 

  1. LIMITATION OF LIABILITY. The total liability of Seller, on all claims of any kind (excluding claims for death or bodily injury), whether in contract, warranty, indemnity, tort/extracontractual liability (including negligence), strict liability, or otherwise, arising out of the performance or breach of the Order or use of any Products shall not exceed the price of the specific Products giving rise to the claim. All Seller’s liability under the Order shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim of such liability accruing during the applicable warranty period by an action timely commenced in accordance with the applicable statute of limitations or statute of repose, but in no event greater than one (1) year after the expiration of such warranty period. In no event, whether as a result of breach of contract, warranty, tort/extracontractual liability (including negligence), strict liability, indemnity, or otherwise, shall Seller be liable for loss of profit or revenues, loss of use of Products or any associated equipment, interruption of business, cost of capital, cost of cover, downtime costs, claims of Buyer’s customers for such damages, or for any special, consequential, incidental, indirect, punitive or exemplary damages. If Buyer cannot obtain for Seller from any reseller, end-customer or subsequent purchaser(s), the protections specified in this Article 8, Buyer shall indemnify, defend and hold Seller harmless from and against any and all claims made by any reseller, end-customer or subsequent purchasers of Products against Seller for loss or damage arising out of the performance or non-performance of Products provided under the Order. If Seller furnishes Buyer with advice or assistance that is not required under the Order, the furnishing of such advice or assistance will not subject Seller to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. For the purposes of this Article 8, the term “Seller” shall mean Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees and agents, whether individually or collectively. The provisions of this Article 8 shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising the Order, except to the extent that such provisions further restrict Seller’s liability. This ARTICLE 8 states Seller’s LIMITS OF liability for all claims of any kind (EXCEPT AS EXPRESSLY excludED HEREIN), whether in contract, warranty, indemnity, tort/ extra-contractual liability (including negligence), strict liability, or otherwise, arising out of the performance or breach of the Order or use of any Products.

 

  1. CONFIDENTIALITY AND USE OF TRADEMARKS AND TRADE NAMES. In connection with the Order, Seller and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information. “Confidential Information” as used herein means: (i) all pricing for Products, (ii) all terms of the Order, and (iii) all information that is designated in writing as “confidential” or “proprietary” by the Disclosing Party at the time of written disclosure, or within ten (10) days after oral disclosure, by label, stamp or other written communication. The obligations of this Article 9 shall not apply as to any portion of the Confidential Information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or its affiliates; (ii) is or becomes available to the Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than the Disclosing Party when such source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by order of a competent court or government agency; or (v) is approved for disclosure in writing by an authorized representative of the Disclosing Party. The Receiving Party agrees: (i) to use the Confidential Information only in connection with the Order and permitted use(s) of Products, and (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees or agents who have a need to know in order for Buyer to perform its obligations hereunder or to use Products. The Receiving Party agrees to advise any recipient of such Confidential Information of the terms and conditions of this Article 9 and to take reasonable steps to ensure compliance. If either party or any of its affiliates or representatives is required by legal process to disclose any Confidential Information, such party agrees to provide the Disclosing Party with prompt notice, to the extent practicable, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of this Article 9. Nothing herein shall be construed as granting to the Receiving Party any license under any invention, patent, trademark or copyright now or hereinafter owned or controlled by the Disclosing Party. The rights and duties created by this Order are in addition to and not in lieu of rights and duties created by the Georgia Trade Secrets Act, Georgia Computer Systems Protection Act, or any amendments or successor legislation, or other remedies provided by federal or state law related to the misappropriation or disclosure of trade secrets or confidential information. This ARTICLE 9 states Seller’s entire liability for breach of its confidentiality covenants. Buyer shall not disclose Confidential Information to Seller in connection with performance hereunder unless it is required to do so to enable Seller to perform work hereunder. If Buyer does disclose Confidential Information, Buyer warrants that it has the right to disclose such information, and Buyer shall indemnify and hold Seller harmless against any claims or damages resulting from improper disclosure by Buyer. Notwithstanding anything to the contrary herein, this Article 9 shall not supersede any separate confidentiality or nondisclosure agreement signed by the parties. Buyer shall not publish, distribute, or use any information developed under, or about the existence of, the Order or use the American Panel Corporation name (or the name of any division or affiliate thereof), logo, trademark, service mark, or trade name for the purpose of advertising, making a news release, creating a business reference or for product or service endorsement without the prior written approval of Seller’s authorized representative. Buyer acknowledges that all brand names, trade names, and trademarks of Seller are the exclusive property of Seller and that Buyer will not acquire any rights relating to the brand names, trade names, or trademarks by purchasing the Products hereunder.

 

  1. PATENT INDEMNIFICATION. Subject to the terms of the Order, Seller shall indemnify Buyer against any damages, costs and expenses arising out of any suit, claim, or proceeding (collectively, a “Claim”) alleging that the Products infringe a patent in effect in the United States, an EU member state or country of delivery (provided there is a corresponding patent issued by the United States or an EU member state), or United States copyright or copyright registered in the country of delivery; provided that: (i) Buyer promptly notifies Seller in writing of any such Claim; (ii) Buyer makes no admission of liability and gives Seller sole authority, at Seller’s expense, to direct and control all defense, settlement, and compromise negotiations; and (iii) Buyer provides Seller with full disclosure and assistance that may be reasonably required to defend any such Claim. Seller shall have no obligation or liability with respect to any Claim based upon: (i) any Products that have been altered, modified, or revised; (ii) the combination, operation, or use of any Products with other products when such combination is part of any allegedly infringing process; (iii) failure of Buyer to implement any update provided by Seller that would have prevented the Claim; (iv) unauthorized use of the Products, including, without limitation, a breach of the provisions of the Order; or (v) Products made or performed to Buyer’s specifications. Should any Product, or any portion thereof, become the subject of a Claim, Seller may at its option: (i) procure for Buyer the right to continue using the Products, or portion thereof; (ii) modify or replace it in whole or in part to make it non-infringing; or (iii) failing (i) or (ii), take back the Products and refund any fees received by Seller attributable to the infringing Products. This ARTICLE 10 states Seller’s entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for Products. Notwithstanding the foregoing, with respect to any Products, or portions thereof, which are not manufactured/developed by Seller, only the indemnity of the manufacturer/developer, if any, shall apply.

 

  1. QUOTATIONS. Written quotations automatically expire thirty (30) calendar days from the date issued and are subject to termination by notice within that period.

 

  1. GOVERNING LAW AND ARBITRATION. The laws of the State of Georgia shall apply to and govern the interpretation, performance and enforcement of this Order. Any controversy or claims arising out of or relating to this Order or the performance or breach thereof shall be settled by binding arbitration before a single arbitrator in the City of Atlanta, State of Georgia, in accordance with the rules and procedures of the American Arbitration Association.

 

  1. SETOFFS AND COUNTERCLAIMS. All claims for money due or to become due from Seller shall be subject to deduction by Seller for any setoff or counterclaim arising out of this or any other of Seller’s purchase orders with Buyer.

 

  1. COMPLIANCE WITH LAWS, CODES, AND STANDARDS. Seller represents that the Products will be produced in compliance with applicable fair labor standards laws, occupational safety and health laws, and laws related to nonsegregation and equal employment opportunity. The Order price will be equitably adjusted to reflect additional costs incurred by Seller resulting from a change in industry specifications, codes or standards, or changes in applicable laws and regulations. All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable trade control laws and regulations. Buyer hereby agrees that it shall not transship, re-export, divert or direct the Products other than in and to the ultimate country of destination specified on Buyer’s order or declared as the country of ultimate destination on Seller’s invoice, except as permitted by applicable laws and regulations. Notwithstanding any other provisions herein, Buyer shall timely obtain any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even though Seller may apply for such.   Buyer and Seller shall provide each other reasonable assistance in obtaining required authorizations. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted, or not renewed and Buyer shall not be relieved hereby of its obligations to pay Seller for the Products.

 

  1. TERMINATION AND SUSPENSION. Buyer shall have the right to terminate the Order (or any portion thereof) for cause if Seller: (i) becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; or (ii) substantially breaches its material obligations hereunder (but only with respect to a material obligation for which the Order does not provide exclusive remedies), provided that: (a) Buyer shall first have provided Seller with written notice of the nature of such breach and of Buyer’s intention to terminate the Order as a result of such breach; and (b) Seller shall have failed, within thirty (30) days after receipt of such notice (or such extended period as is considered reasonable by the parties), to either: (1) commence to cure such breach and diligently thereafter to pursue such cure; or (2) provide reasonable evidence that no such breach has occurred. This Order also may be terminated by Seller by giving written notice to Buyer, in the event Seller has reasonable basis for concluding that Buyer’s financial condition is such that Buyer is at or near insolvency, and Buyer, within ten (10) days after receipt of such notice, does not provide acceptable information upon which it is reasonable to conclude that Buyer is not at or near insolvency and will be able to perform its obligations under this Order. If Buyer terminates the Order as provided in this Article 15, Buyer shall pay to Seller that portion of the Order price allocable to Products completed or partially completed before the termination.   Seller shall have the right to suspend or terminate the Order (or any portion thereof) immediately for cause if: (i) Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; (ii) there is an excusable delay (as per Article 5 above) lasting longer than one hundred and twenty (120) days; (iii) any representation or warranty made by Buyer herein or in any document or certificate furnished by Buyer in connection herewith proves to be incorrect in any material respect; or (iv) Buyer materially fails to comply with any terms of the Order, including but not limited to, failure to make any payment when due or to fulfill any payment conditions. If Seller elects to continue to ship Products to Buyer, Seller’s actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for such default. If the Order (or any portion thereof) is terminated for any reason other than those set forth in this Article 15, Buyer shall pay Seller for all Products completed or partially completed, plus a cancellation charge equal to fifteen percent (15%) of the Order price allocable to the uncompleted Products. Any reasonable expenses incurred by Seller in connection with a suspension or termination, including expenses for repossession, fee collection or costs of storage during suspension, shall be payable by Buyer upon submission of Seller’s invoice(s). Performance of Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

 

  1. GENERAL PROVISIONS. UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY SELLER, THE PRODUCTS HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. No response by Seller to any request for proposal, bid, acceptance by Seller, or agreement between the parties shall constitute consent to nuclear use absent an express affirmation of consent to nuclear use by Seller. Buyer hereby: (i) accepts the Products in accordance with the restriction set forth herein; (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users; and (iii) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including special, incidental and consequential damages, arising from use of the Products in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that Seller’s liability is based on negligence or strict liability. If Seller expressly agrees in writing to any such nuclear use, Seller’s special terms and conditions for nuclear applications and protections against nuclear liability shall be attached and incorporated fully herein by reference.

 

Seller may assign or novate its rights and obligations under the Order, in part or in whole, to any entity directly or indirectly controlling, controlled by, or under common control with Seller without Buyer’s consent. Buyer agrees to execute such documents as may be necessary to effect the assignment or novation. Neither this Order nor any duty or right under it shall be delegated or assigned by Buyer without the prior written consent of Seller. Any purported assignment by Buyer without such consent shall be void.

 

If any provision of the Order or these Terms and Conditions is found to be void or unenforceable the remainder of the Order shall not be affected and the parties hereby agree that they will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and which is valid and enforceable.

 

The Order along with these Terms and Conditions represent the entire agreement between the parties, and no modification, amendment or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives.

 

If the Products to be furnished under the Order are to be used in the performance of a United States Government contract or subcontract, and a United States Government contract number shall appear on Buyer’s purchase order, those clauses of the applicable United States Government procurement regulations which are required by Federal Statute to be included in United States Government subcontracts are incorporated herein by reference.

 

This Order may be executed in multiple counterparts that together shall constitute one agreement.

 

The Order is for the benefit of the parties hereto and not for any third party.

 

The rights and remedies of Seller provided herein shall be cumulative and in addition to any other rights and remedies provided by law or equity. The failure of Seller in any one or more instances to insist on performance of any of the provisions of this Order shall in no way be construed to be a waiver of such provisions in the future.