Terms & Conditions of Sales

AMPROD LLC dba AMERICAN PRODUCTS – TERMS & CONDITIONS OF SALE

1. OFFER & ACCEPTANCE

1.1 These Terms and Conditions of Sale (“Terms”) apply exclusively to all sales of products (“Products”) by Amprod LLC dba American Products (“Seller”) to Buyer. Any quotation or proposal by Seller shall be valid for thirty (30) days from its date unless otherwise specified in writing.

1.2 Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these Terms. Any additional or conflicting terms in Buyer’s purchase order or other documents are expressly rejected and shall not become part of any agreement between the parties unless specifically agreed to in writing by an authorized representative of Seller.

1.3 By accepting this offer and purchasing Products from Seller, Buyer confirms that these Terms and Conditions shall apply—even if Buyer sends Buyer’s standard terms and conditions or any other form, amendment, or modification to Seller, and even if Seller does not respond to any such form, amendment, or modification.  “Acceptance” means the earlier of: (a) Buyer’s written acceptance of Products; (b) Buyer’s use of Products in production; or (c) thirty (30) days after delivery.

2. PRICES & PAYMENT

2.1   Prices are as stated in Seller’s quotation and do not include applicable taxes, shipping, handling, insurance, or other charges, which shall be paid by Buyer.

2.2   Payment terms are net thirty (30) days from date of invoice unless otherwise agreed in writing.

2.3   A three percent (3%) convenience fee shall be assessed on all credit card purchases.

2.4   Interest shall accrue on past due amounts at a rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by law, if less).

2.5 Buyer shall pay all costs of collection, including reasonable attorneys’ fees, incurred by Seller in collecting any amounts due.

2.6 If Seller implements a general price adjustment, or a price adjustment that is specific to one or more industries to which Buyer belongs, Seller may make a price adjustment to confirmed orders that have not shipped.

2.7 Customer is responsible for all applicable sales, use, excise, and similar taxes unless Customer provides a valid tax exemption certificate prior to order processing or shipment, as applicable.  If a valid exemption certificate is not provided in a timely manner, Seller may charge applicable taxes on the transaction, and Customer shall remain responsible for payment of such taxes.  Seller shall have no obligation to refund or reverse taxes charged after invoicing.  Exemption certificates submitted after invoicing may be accepted solely at Seller’s discretion.

3. DELIVERY & TITLE

3.1  Unless otherwise agreed, delivery shall be FOB Seller’s plant. Title and risk of loss shall pass to Buyer when the Goods are provided to the Shipper at Seller’s facility.

3.2   Delivery dates are estimates only. Seller shall not be liable for any delay in delivery.

3.3  If freight terms are “prepaid/add,” the shipper accepts title and responsibility for damage or loss during shipment, and Buyer accepts title upon signature at the delivery destination.

3.4  Seller may make partial shipments and invoice each shipment separately.

4. SECURITY INTEREST & RESERVATION OF TITLE

4.1   Seller retains a lien on all Products until full payment is received. Buyer agrees to execute any documents necessary to perfect Seller’s security interest.

4.2 Buyer grants Seller a purchase money security interest in all Products sold and delivered hereunder. Buyer authorizes Seller to act as Buyer’s attorney in fact to execute and file all documents necessary to perfect such security interest.

4.3  In any location recognizing reservation of title, Buyer agrees that Seller retains title to Products until full payment, and Buyer hereby assigns to Seller all proceeds from any sale or pledge of Products prior to payment in full.

5. WARRANTY

5.1  Products designed and manufactured by Seller shall be warranted to be free of material defects in materials or workmanship under normal use and service, normal wear and tear excepted, for a period of 5 years (U.S. & Canada) and 3 years (International deployments) from the date of shipment. Should the product be proven to be defective and the defect is covered by this warranty, Seller will have the option to repair or replace the product.

5.2  Products designed by entities other than Seller and produced by Seller shall be warranted to be free of material defects in materials or workmanship under normal use and service, normal wear and tear excepted, for a period of 1 year from the date of shipment. Should the product be proven to be defective and the defect is covered by this warranty, Seller will have the option to repair or replace the product.

5.3  Products not designed by Seller and not manufactured by Seller will carry only the original manufacturer’s warranty and are not warranted by Seller or covered by this Limited Warranty. To the extent it is permitted to do so, Seller assigns to the Buyer the warranty (if any) from the original manufacturer.

5.4  Seller shall have no obligation under this warranty or otherwise:

• if the product is improperly installed or maintained, or is not operated in conformance with Seller’s product manuals or specifications; is installed outside of stated design and operating parameters or is exposed to such conditions; is used for applications other than the approved applications; or has been altered, modified, serviced, or repaired by anyone other than Seller;
• if damage or malfunction is caused by or results from external occurrences, such as lightning, fire, water damage, floods, temperature extremes, acts of nature, power surges, or the like;
• if the defect is caused by or results from misuse, abuse, vandalism, theft, or improper storage;
• if the defect results from or was caused by failures related to batteries of any type or by use of the product with other products;
• if there have been any alterations of serial numbers; or
• if the product has been exposed to any level of radioactive or toxic material, corrosive chemicals, or other environmental condition outside of its operating parameters. It is the responsibility of the Buyer to communicate any special environmental concerns in which the enclosures will be utilized to Seller prior to purchasing the product. Special materials may be required to allow for proper corrosion resistance for harsh environments. Warranty does not cover abuse, modifications by others, or reimbursement for unauthorized rework. At no time will Seller reimburse the Buyer for unauthorized rework on any product.

5.5   Seller does not represent or warrant that its products may not be compromised, circumvented, or will prevent unauthorized access to the contents thereof; that the products will prevent any personal injury or property loss by theft, fire, lightning, electrical surge, water, or otherwise; or that the products will in all cases provide adequate protection to their contents.

5.6   Seller shall have no obligation or liability for any damage to any equipment or other property placed inside an enclosure even if such damage is due to a defect in the product. Any descriptions of the goods or services, whether in writing or made orally by Seller or its agents, in any specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, or similar materials used in connection with a client’s order are for the sole purpose of identifying the goods and shall not be construed or treated as (WARRANTY / LIMITS OF  LIABILITY CONTINUED), a warranty of any kind, whether expressed or implied.

5.7  Any suggestions by Seller or its agents regarding use, applications, or suitability of the goods shall not be construed as a warranty of any kind.

5.8  EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY, NEITHER SELLER, NOR ANY PERSON ACTING ON BEHALF OF IT, HAS MADE, IS MAKING, OR SHALL BEDEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OROTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE GOODS.

5.9 IF SELLER CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES, THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO THE WARRANTY PERIOD.

5.10   UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO ANYONE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LIQUIDATED DAMAGES, LOSS IN PROFITS, RENTS OR REVENUES, COSTS OF CAPITAL, DOWNTIME COSTS, OR DAMAGES RELATED TO OUR PRODUCT PERFORMANCE FORBREACH OF THIS OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, OR UPON ANYOTHER BASIS OF LIABILITY WHATSOEVER, EVEN IF THE LOSS OR DAMAGE IS CAUSED BY SELLER’S OWN NEGLIGENCE OR FAULT AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

5.11  If Seller is held liable whether directly or indirectly for any loss or damage with respect to the products it sells, regardless of cause or origin, its maximum liability shall not, under any circumstances, exceed the purchase price of the product, which shall be fixed as liquidated damages and not as a penalty and shall be the complete and exclusive remedy against Seller

6. PATENTS & INTELLECTUAL PROPERTY

6.1   Seller warrants that Products do not infringe any valid United States patent.

6.2 Seller’s suggestions regarding articles, designs, or use of Products, if any, shall not be construed to grant any license under any patent. If Products infringe any third-party patent, Seller shall, at its option: (a) defend Buyer against such claim and pay any resulting damages; (b) obtain a license for Buyer’s continued use; or (c) refund the purchase price.

6.3 This warranty shall not apply to any infringement arising from: (a) Seller’s compliance with Buyer’s specifications; (b) modification of Products by anyone other than Seller; or (c) combination of Products with other items not supplied by Seller.

7. LIMITATION OF LIABILITY

7.1   Seller’s maximum liability arising out of or relating to Products or these Terms, whether based on contract, tort, strict liability, or otherwise, shall be fixed as liquidated damages (and not as a penalty) in an amount equal to the purchase price paid by Buyer for the specific Products giving rise to the claim. This shall constitute the complete and exclusive remedy of Buyer.

7.2   NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, DOWNTIME COSTS, COST OF CAPITAL, OR COST OF SUBSTITUTE GOODS OR SERVICES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. TECHNICAL ADVICE

8.1 Buyer is solely responsible for design, processing, testing, use, and labeling of any product made using Seller’s Products. Buyer shall not rely on Seller’s website or any statements regarding suitability for Buyer’s applications.

8.2  Buyer shall form an independent judgment regarding use of Products and shall not make any claim against Seller based on Seller’s advice, statements, information, services, or recommendations.

9. TERMINATION & SUSPENSION

9.1 Seller may immediately terminate these Terms, any outstanding order, or adjust payment terms upon the occurrence of any of the following:

(a)  Buyer’s failure to pay any invoice within the payment terms on two or more occasions;

(b)  Buyer’s general failure to pay debts as they become due;

(c) Seller’s reasonable belief that Buyer’s creditworthiness has deteriorated or that Buyer is insolvent; or

(d) Sale of a majority of Buyer’s assets or a change of control of Buyer.

9.2   Upon any default by Buyer, Seller may, in its sole discretion: (a) suspend shipments; (b) require cash in advance for future orders; or (c) reduce payment terms.

9.3  If Buyer breaches any provision of these Terms, Seller may withhold further shipments without liability.

10. CANCELLATION & RETURNS

10.1 Orders for custom Products may not be cancelled or terminated by Buyer.

10.2   Any return of non-custom Products must be authorized in writing by Seller and shall be subject to a restocking charge in accordance with Seller’s then-current policy.

10.3   Seller reserves the right to cancel any order upon written notice to Buyer, in which case Seller’s sole liability shall be to refund any amounts paid by Buyer for undelivered Products.

11. INDEMNIFICATION

11.1  Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Buyer’s use of Products; (b) any breach of these Terms by Buyer; or (c) Buyer’s negligence or willful misconduct.

12. MARKETING & PUBLICITY

12.1  Seller is entitled to reference Buyer as a customer and to use photographs of Buyer’s applications utilizing Seller’s Products in marketing materials without Buyer’s prior consent.

12.2  Neither party shall use the other party’s trademarks, trade names, or logos without prior written consent.

13. FORCE MAJEURE

13.1  Seller shall not be liable for any delay or failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, war, terrorism, labor disputes, government actions, pandemics, or shortages of materials or transportation.

14. GOVERNING LAW & DISPUTE RESOLUTION

14.1  These Terms shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

14.2  Any dispute arising out of or relating to these Terms or Products shall be resolved exclusively in the state or federal courts located in Webster County, Missouri, and each party hereby consents to the exclusive jurisdiction and venue of such courts.

14.3 EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR PRODUCTS.

15. MISCELLANEOUS

15.1  These Terms constitute the entire agreement between the parties and supersede all prior agreements, representations, and understandings.

15.2  These Terms may not be modified except by a written instrument signed by authorized representatives of both parties.

15.3  The failure of either party to enforce any provision of these Terms shall not constitute a waiver of such provision or the right to enforce it at a later time.

15.4  If any provision of these Terms is held invalid or unenforceable, the remaining provisions shall continue in full force and effect.

15.5  Buyer may not assign these Terms or any rights hereunder without Seller’s prior written consent. Seller may assign these Terms without restriction.