(a) “Buyer” means AP4 Group, LLC., 7060 Havertys Way, Lakeland, FL 33805.
(b) “Goods” means all services (including but not limited to consultancies and maintenance), goods or products covered by the Order, including raw materials, processed materials, or fabricated products.
(c) “Order” means Buyer’s official purchase order to which these Terms apply, and includes printed purchase orders, whether delivered by hand, mail or facsimile, and purchase orders issued by means of Electronic Data Transfer or otherwise.
(d) “Seller” means the person or entity to whom the Order is issued.
(e) “Contract” means the contract for purchase of Goods formed upon Seller’s acceptance of an Order which incorporates these Terms.
(f) “Terms” means these Terms and Conditions of Purchase.
2. ENTIRE AGREEMENT
2.1 These Terms and the Order represent the entire agreement between the parties regarding the subject matter hereof and thereof and shall be incorporated in the Contract. Seller shall, by accepting the Order, be bound by these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2.2 These Terms:
(a) shall apply to the exclusion of all other terms and conditions, whether contained in Seller’s invoice or conditions of sale or otherwise, proposed by or purported to be applied by Seller confirmation, with the Goods or the Order and these Terms, including those contained or referred to in Seller’s tender, confirmation or acceptance of the Order or otherwise, which terms and conditions are rejected by Buyer and waived by Seller to the maximum extent permitted by law; and
(b) supersede all prior agreements, proposals, tenders, communications, or representations in relation to the Goods or the Order and these Terms.
3. RESPONSIBILITY FOR PURCHASE.
Buyer will not be responsible for any order unless it is issued on an Order. No variation of an Order will be effective unless approved in writing by Buyer. The number appearing on the Order must be quoted on all invoices, delivery dockets and parcels.
4.1 Seller must ensure and warrants that the Goods:
(a) conform with the description provided by Seller;
(b) conform with any applicable specifications agreed by Buyer and Seller;
(c) are fit for Buyer’s purposes (if made known to Seller) and are otherwise fit for the purpose for which they are sold;
(d) are of merchantable quality;
(e) are and will remain free of defects in material, workmanship and design for the period of 12 months from date of installation by Buyer or 18 months from the date of delivery to Buyer, whichever is more;
(f) are new and unused (unless otherwise specified);
(g) are free and clear from all liens and encumbrances, charges or third-party claims of any kind with Seller having good marketable title thereto;
(h) do not infringe any third-party intellectual property rights (including moral rights);
(i) unless a higher standard is required under the Order, comply with the appropriate International Standards Organization (ISO) Standards; and
(j) where the Goods include any services to be provided by Seller, such services shall be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services by competent and adequately trained persons who are, if required by applicable law, properly licensed, certified, or accredited.
4.2 Seller warrants that it has and will maintain all approvals required by law to perform its obligations under the Contract and that it shall comply with all applicable laws, regulations, and ordinances.
4.3 These warranties are in addition to any other warranties or guarantees contained in the Order or implied by law or provided by Seller or any third party and will survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer.
5. REJECTION OF GOODS AND REPAIR OR REPLACEMENT
5.1 Buyer may reject Goods not conforming for any reason whatsoever to the Order upon delivery or performance of such Goods or within a reasonable time thereafter. Any acceptance of delivery or payment by Buyer for such Goods shall not prejudice its right of rejection contained herein.
5.2 If, in the reasonable opinion of Buyer, the Goods (or any part of the Goods) do not comply with the Order and these Terms, Buyer may notify Seller of such failure and, at Buyer’s discretion either:
(a) return the unsatisfactory Goods to Seller at Seller’s risk and expense. Seller shall be indebted to Buyer for:
(i) the Order sum (or any part of it) paid by Buyer for the return of the Goods (if paid); and
(ii) any costs incurred by Buyer in connection with the delivery and return of the Goods; or
(b) accept the Goods at a reasonably reduced price;
(c) require Seller to repair or replace such Goods, in which case Seller shall remove the Goods from the site of Buyer at Seller’s risk and expense and Seller shall repair or replace such Goods with Goods which are in accordance with the Order and these Terms within 30 days of notification of such defect or failure from Buyer; or
(d) with respect to non-compliant services, require Seller to re-perform such services within 30 days of notification of such non-compliance from Buyer.
5.3 If Seller fails to timely repair or replace such Goods or re-perform such services, Buyer may obtain such repair or replacement goods or services from a third party and charge Seller the cost thereof.
5.4 Such repairs or replacements shall be subject to the warranties contained in Section 4 and the liabilities contained herein.
5.5 The rights under this Section 5 shall not limit Buyer’s other rights under the Order and these Terms or otherwise at law.
6. LOSS OR DAMAGE IN TRANSIT
6.1 Buyer shall advise Seller of any loss or damage to or defect in the Goods within the following time limits: (i) partial loss, damage, or defects, within 60 days of the date of delivery; or (ii) partial or non-delivery of Goods, within 60 days of the intended date of delivery as specified in the Order.
6.2 Seller shall make good free of charge to Buyer any loss of or damage to or defect in the Goods where notice is given by Buyer in compliance with this condition.
7.1 Seller shall deliver the Goods described in the Order:
(a) by the due date or according to the schedule stated therein;
(b) during Buyer’s normal business hours or as otherwise instructed by Buyer in the Order;
(c) for the quantities of each item listed;
(d) to the place of delivery and on the delivery terms stated therein; and
(e) in manner specified in the Order and these Terms unless otherwise agreed in writing between Buyer and Seller.
7.2 Time is of the essence hereof insofar as it applies to the obligations of Seller. If any Goods are not delivered within the time specified in the Order, Buyer may either:
(a) refuse to accept such Goods and terminate the Order; or
(b) cause Seller to deliver the Goods by the most expeditious means, whereupon any additional delivery charges in excess of those which would apply for the usual means of delivery shall be borne by Seller.
7.3 If any Goods are not delivered to the place specified in the Order or otherwise agreed between Buyer and Seller, without limiting any other rights that Buyer may have, including under these Terms, Seller will be responsible for any additional expense incurred in delivering them to their correct destination.
8. TITLE AND RISK
8.1 Risk of loss in the goods shall pass to Buyer upon delivery to Buyer in accordance with Section 7 but without prejudice to any right of rejection or other rights which may accrue to Buyer hereunder. Risk in any Goods which have been notified by Buyer as defective or non-compliant will pass to Seller upon Buyer returning or otherwise making such Goods available to Seller until rectification of the defect or replacement of the Goods in accordance with these Terms.
8.2 Title in the Goods shall pass to Buyer upon payment in respect of the Goods. Until title in the Goods passes, Buyer is authorized to apply the Goods in the ordinary course of its business.
9. INSPECTION IN PROGRESS AND PRIOR TO DISPATCH. Buyer or its agents shall have the right of inspection of all work performed pursuant to the Order while in any stage of engineering, manufacture, or installation, and of the Goods prior to their dispatch. Seller shall make this a condition of any sub-contracted work. Buyer or its agents shall have the power to reject any work performed or being performed or any Goods that do not conform to the Order, whereupon the work or Goods rejected shall be reperformed at no additional cost to Buyer. Any such inspection shall not relieve Seller of any obligations contained in the Order or at law.
10. INTELLECTUAL PROPERTY. Seller hereby grants to Buyer an irrevocable, royalty-free, and perpetual license to use (and allow others to use) the intellectual property in the Goods or any work to be performed by Seller (including any copyright, patent, trademark, and design) for any purpose in connection with the project for which the Goods are to be used by Buyer.
11. PRICE. The purchase price of the Goods payable by Buyer shall be that specified in the Order and shall be fixed firm and cannot be varied without the prior written agreement of Buyer. Unless otherwise specified in the Order, the purchase price includes all packaging, transportation costs, insurance, customs duties and fees and applicable taxes.
12. TERMS OF PAYMENT
(a) Seller must send invoice for payment for the Goods at the times for payment (and in any case not prior to delivery) provided in the Order.
(b) Within 30 days from the end of the month following receipt of Seller’s invoice, Buyer shall pay the amount that is payable to Seller under the Contract, except for any amounts disputed by Buyer in good faith.
(c) Buyer may set-off against any amount claimed by Seller: (i) any amount claimed by Buyer from Seller (whether in connection with the Contract or otherwise); and (ii) any amount Buyer is required by law to withhold or deduct.
13. SUB-CONTRACTING AND ASSIGNMENT. Seller shall not assign its rights or obligations hereunder or sub-contract any work to be performed pursuant to the Order without the prior written consent of Buyer, which shall not be unreasonably withheld. Buyer’s approval shall not relieve Seller of its obligations under the Contract, and Seller shall remain fully responsible for the performance of each such permitted subcontractor and its employees and for their compliance with all of the terms and conditions of the Contract as if they were Seller’s own employees. Nothing contained in the Contract shall create any contractual relationship between Buyer and any Seller subcontractor or supplier.
14. PACKAGING, STORAGE AND HAZARDOUS GOODS
14.1 The Goods shall be properly packed to avoid being damaged during delivery of loading and unloading, and in accordance with any packaging requirements or specifications communicated by Buyer to Seller. All packages shall be clearly marked with the Order number and the location of delivery. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense.
14.2 Seller shall comply with all applicable U.S. and international laws, regulations and other relevant requirements relating to the transport, packaging, storage, handling, and use of the Goods.
14.3 All Goods, which are hazardous goods, must be accompanied by emergency material in English in the form of written instructions, labels or markings and Material Safety Data Sheets. All information held by or reasonably available to Seller regarding any potential hazards or special requirements known or believed to exist in the transport, packaging, storage, handling, or use of the Goods shall be immediately communicated to Buyer.
14.4 Where required by Buyer or at law, Seller shall provide all necessary Certificates of Conformance, Certificates of Analysis and Test Certificates together with the Goods delivered pursuant to the Order.
15. INSURANCE AND INDEMNITY
15.1 During the term of the Contract and for a period of two years thereafter, Seller shall, at its own expense, affect and maintain adequate insurance including, without limitation, public liability, worker’s compensation (including common law liability), automotive and other means of transportation/freight liability insurance and products liability insurance upon such terms and for such amounts acceptable to Buyer as are reasonable in the circumstances of the Order. All payment of moneys by Buyer in connection with the supply of the Goods will be conditional upon Seller providing Buyer with evidence of the currency of such insurance if reasonably requested by Buyer. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with at least 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer.
15.2 Seller shall defend, indemnify and hold harmless Buyer, its affiliates, successors or assigns and their respective directors, officers, managers, members, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or occurring in connection with (i) the Goods purchased from Seller (except to the extent directly caused by Buyer’s willful misconduct or breach of the Contract); (ii) Seller’s negligence, willful misconduct or breach of the Contract; or (iii) any claim that Buyer’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s prior written consent.
16. FORCE MAJEURE. Neither party shall be liable to the other for default or delay in performing its obligations under the Order caused by any occurrence beyond its reasonable control, provided that the party affected by such occurrence gives notice thereof to the other party within seven days of the commencement of that occurrence and use all reasonable efforts to end or overcome that occurrence as soon as possible.
17. CONFIDENTIALITY; BUYER’S RIGHTS IN SPECIFICATIONS, PLANS, PROCESS INFORMATION, ETC. Any specifications, plans, drawings, process information, patterns, designs or any other information supplied by Buyer to Seller in connection with the Order (collectively, “Buyer Information”) shall remain the property of Buyer, and any such information and any information derived therefrom or otherwise communicated to Seller in connection with the Order shall be kept confidential and shall not, without the written consent of Buyer be published or disclosed to any third party, or made use of by Seller except for the purpose of implementing the Order or as required by law. Seller agrees to protect Buyer’s confidential information using industry standard administrative, technical, and physical safeguards to prevent unauthorized access or acquisition. Any Buyer Information must be returned to the Buyer on request by Buyer. Any invention or improvement made by Seller attributable in whole or in part to any Buyer Information shall be the property of Buyer.
18. WORK ON BUYER’S SITE. If, in providing the Goods, Seller requires access to, or must carry out work on, a site of Buyer, Seller shall only reasonably access and use Buyer’s site subject to, in addition to the conditions of the Order and any conditions imposed by law, the lawful requirements and on-site safety and security policies, rules and directions of Buyer.
19. APPLICABLE LAW; JURY TRIAL WAIVER. The Contract shall be governed by, subject to and construed in accordance with the laws of the state of Florida (the “State”) and the parties accept the jurisdiction of the courts in the State. Buyer and Seller waive any and all right to trial by jury of any claim or cause of action in any proceeding arising out of or related to the Contract.
20.1 If a party (“defaulter”):
(a) fails to comply with any of its obligations under the Contract (and, where the failure is capable of rectification, does not rectify this failure within 14 days of notice from the other party (“non-defaulter”)); or
(b) is insolvent, becomes bankrupt or becomes subject to any official management, receivership, liquidation, voluntary administration, winding up or external administration,
then the non-defaulter may terminate the Contract by notice and such termination will be without prejudice to the non-defaulter’s rights under the Contract or otherwise at law, including the right to be reimbursed by the defaulter for any additional costs incurred in obtaining the Goods from another source of supply.
20.2 Buyer may at any time for any reason (including for its convenience where there is no default by Seller) terminate the Contract by two (2) days prior notice to Seller in which case:
(a) Seller shall cease performing its obligations under this Contract to the extent set out in Buyer’s notice and mitigate any costs incurred by Seller consequent upon the termination;
(b) Buyer shall pay Seller for the value of the Goods provided to Buyer (to Buyer’s satisfaction) in accordance with the Contract;
(c) Seller shall have no claim of any kind whatsoever for any loss (including loss of profit), damages or other amounts; and
(d) any rights of Buyer arising from prior breaches by Seller shall not be affected.
21.1 Sections 10, 15, 17, 19, 20 and 21 are continuing obligations and survive termination of the Contract for any reason.
21.2 These Terms may only be amended in a writing signed by an authorized representative of each party. The failure or omission of a party at any time to enforce the strict compliance with any of these Terms is not a waiver of the rights of a party. Any waivers granted by a party must be in writing.
21.3 If any part of these Terms is or becomes illegal, invalid, or unenforceable in any relevant jurisdiction then they will be read as if that part had been deleted in that jurisdiction only and the remainder shall remain in full force and effect and the intent carried out in full by each party.
21.4 All notices, requests, consents, claims, demands, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only
(a) upon receipt or refusal to accept delivery of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.