1. The quantity(ies) and requested delivery time(s) ("Specific Delivery Terms") for each release of products will be set forth in customer’s purchase order(s) or EDI transaction statements received and agreed to by Accurate Perforating Co., Inc. or Accurate Metal Fabricating, LLC, as the case may be (hereinafter referred to as “APC/AMF”). Except for the Specific Delivery Terms, no other terms and conditions set forth in any customer purchase order or EDI transaction statement will apply to the sale of products. Orders are firm and not subject to cancellation or revision except with the written consent of APC/AMF. Customer is responsible for all reasonable cancellation charges. In the event of a conflict or inconsistency between the quote, order acknowledgement or invoice and the Terms, the quote, order acknowledgement or invoice shall prevail. APC/AMF may correct clerical errors in any quote, order acknowledgement or invoice and send customer a corrected version.
2. Where APC/AMF is required to procure material to satisfy customer’s specifications, the material procured and fulfillment of customer’s order are subject to published mill variations for (i) quantity expressed in pounds or footage or (ii) width and length. Where customer specifies that an exact quantity and/or special tolerances for width and length must be delivered, customer and APC/AMF shall agree on the exact quantity and/or special tolerances at the time the order is placed. The perforating process requires the use of considerable lubricants. If customer specifies that the material must be degreased, there will be a charge for degreasing and APC/AMF shall not thereafter be liable for any surface corrosion resulting from the absence of lubricants.
3. Unless otherwise expressly agreed in writing, all products are manufactured on a “make and ship” basis. Customer agrees to release for shipment and accept products on this basis or as specified in the accepted order. Customer will pay APC/AMF’s costs incurred if customer fails to release products for shipment on this basis or as specified in the accepted order. Unless otherwise expressly agreed in writing, customer pays the freight and the delivery term is F.O.B. APC/AMF’s plant. Customer shall specify type of carrier and routing. In the absence of such specification, APC/AMF will select the carrier and routing and will not be liable for any delays or excessive transportation charges resulting from its selection.
4. Unless otherwise expressly agreed in writing, shortages of up to 5% and overages of up to 10% are allowed and acceptable to customer and APC/AMF. Due to the natural spoilage during the perforating process, we reserve the right to “under ship” the raw material furnished by the customer. For tolling services, all coil material specifications are as follows: Maximum weight is 16,000 lbs. and inside diameter of coil is 20”. Any deviation from these specifications will result in additional charges. All coils should be loaded on trucks “eye to side” for side unloading. Scrap material resulting from the processing of the products shall remain or become the property of APC/AMF and customer hereby assigns all right, title and interest in and to such scrap to APC/AMF.
5. Customer may inspect all products delivered in a reasonable time, place and manner; provided, however, that inspection for obvious defects must occur within five (5) days of receipt. Customer shall give written notice of rejection within two (2) days after completion of inspection. Acceptance shall be deemed to occur after such two-day period, absent notice of rejection. With respect to any goods properly rejected hereunder, APC/AMF shall have a commercially reasonable time thereafter in which to cure by tendering conforming goods. Subject to Sections 2 and 4, claims for errors in weight or quantities delivered shall be made upon receipt of products or within three days thereafter.
6. APC/AMF reserves the right to pass through increases in raw material or other direct costs of its products between order acceptance and shipment. Product prices do not include sales, use or other taxes, tariffs or government charges arising out of or related to the manufacture or sale of the products. All such taxes, tariffs or charges, other than taxes on APC/AMF’s income, will be paid by customer. Payment terms are net/30 days from the invoice date, subject to credit approval. Unless otherwise expressly agreed in writing, all tooling used by APC/AMF in the processing of the products shall remain the property of APC/AMF. Invoices for tooling charges may be rendered prior to processing the products.
7. Raw material furnished by customer shall be shipped to APC/AMF freight prepaid and all risk of loss or damage to the material, except with respect to APC/AMF’s failure to exercise reasonable care of the material while in its possession, shall remain with the customer. APC/AMF makes no warranty, express or implied, regarding customer’s raw material. Where a customer chooses to supply the raw material, customer assumes responsibility for any spoilage that takes place in the course of processing or during transportation to APC/AMF’s plant. The charge for perforating services covers only the labor involved and does not include a reserve to cover replacement of customer material. Where applicable, APC/AMF will provide credit for perforating services only and the replacement of customer material is customer’s obligation.
8. If customer fails to pay for any shipments on terms or reasonable grounds for insecurity otherwise arise, APC/AMF will have the right to revoke any credit customer has and/or suspend further shipments until receipt of adequate assurance of performance from customer. APC/AMF reserves the right to assess all amounts not paid on terms with interest at the rate of 1.0% per month, unless this rate exceeds the highest rate permitted by law, in which event the rate shall be the highest rate permitted by law. Customer will pay all invoice amounts without setoff or deduction of any kind. Customer will pay all costs and expenses (including but not limited to reasonable legal fees) incurred by APC/AMF to collect late payments or other amounts due from customer.
9. APC/AMF’s performance will be excused upon and during continuation of any event, condition or occurrence beyond APC/AMF’s reasonable control, including but not limited to fire, flood, storm, acts of God, war, civil insurrection, epidemic, pandemic, quarantine, acts of terrorism, labor disturbances and lack of transportation services, utilities or supplies.
10. APC/AMF warrants solely to customer that, when delivered, the products will be free from defects in materials and workmanship, other than defects which fall within agreed or customary industry tolerances. To the extent APC/AMF subcontracts product finishing or other processing, such finishing or processing is warranted solely by the subcontractor and APC/AMF will either pass through such warranty to customer or use reasonable efforts to assist customer in processing any subcontractor warranty claim. APC/AMF will not be liable under any circumstances where the claimed damages result from (a) use of the products in applications that are not approved by APC/AMF, faulty installation of products or failure to maintain the products in accordance with APC/AMF recommendations, (b) repair or alteration of the products by anyone other than APC/AMF, (c) rust or outside corrosion occurring subsequent to the earlier to occur of degreasing and product delivery, (d) any abuse or neglect of the products or (e) any accident involving the products caused by anyone other than APC/AMF. In addition, APC/AMF will not be liable under any circumstances where the claimed damages result from customer or a third party failing to store, handle, use or distribute the products in accordance with APC/AMF specifications or best practices in the applicable industry. OTHER THAN THE LIMITED WARRANTY CONTAINED HEREIN, APC/AMF MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OR PERFORMANCE OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE WHICH ARE HEREBY DISCLAIMED AND EXCLUDED.
11. Customer will promptly notify APC/AMF of any products that do not conform to the limited warranties. Notice of non-conformity must be received by APC/AMF within thirty (30) days of delivery. APC/AMF will have a reasonable opportunity to inspect and test any such products before return. Products may not be returned to APC/AMF without APC/AMF’s prior approval. Customer’s exclusive remedies for non-conformity of any products to such warranties shall be for APC/AMF to repair or replace any non-conforming products. APC/AMF shall decide whether to repair or replace such products and repairs shall be performed at the location designated by APC/AMF. Customer must return the product intact to such location at Customer’s expense. If APC/AMF is unable or unwilling to repair or replace any non-conforming products within a commercially reasonable time, then APC/AMF will provide a refund or credit on account of any non-conforming products in the amount of the purchase price of such products.
12. In no event will APC/AMF's obligation or liability for breach of contract or otherwise exceed the purchase price of the product which is the subject of any dispute between the parties or any third party claim or cause of action. Customer shall be solely responsible for ensuring that all specifications, drawings, information, advice, recommendations or requests provided to APC/AMF by customer or any of its agents are accurate and suitable. APC/AMF’s examination or consideration of any such specifications, drawings, information, advice, recommendations or requests shall not result in any liability on the part of APC/AMF. The customer is ultimately responsible for determining product suitability for a particular application. APC/AMF SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANYONE FOR CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES.
13. This indemnification provision is intended to be mutual and reciprocal in nature. Each party (an “Indemnitor”) will indemnify the other (an “Indemnitee”) for (a) Indemnitor’s breach of the APC/AMF Product Terms and Conditions (the “Terms”), including but not limited to breach of the limited warranty contained in Section 10 of the Terms, (b) claims arising out of the Indemnitor’s negligence or willful misconduct, or the negligence or willful misconduct of Indemnitor’s employees, agents, representatives or subcontractors, and (c) claims arising out of acts which are the responsibility of Indemnitor, or Indemnitor’s employees, agents, representatives or subcontractors. Indemnitee shall not be indemnified against the harm caused by its own negligence or willful misconduct, or the negligence or willful misconduct of Indemnitee’s employees, agents, representatives or subcontractors. Furthermore, this indemnification provision shall not negate the availability of tort defenses, such as contributory negligence, or alter any applicable rules regarding comparative fault. Indemnitee shall not be entitled to invoke this indemnification provision in an effort to expand any limitations of liability or exclusive remedies expressed in the Terms. As a condition precedent to indemnification, the Indemnitee is required to give reasonable written notice of the claim to Indemnitor and give control of the defense of any
such claim to Indemnitor. Indemnitee shall also provide reasonable cooperation to the Indemnitor in defending such a claim at the expense of the Indemnitor.
14. Unless and solely to the extent customer has paid all costs and expenses of any design or development work performed by APC/AMF for the customer, all right, title and interest in and to such work shall vest in and remain with APC/AMF, customer hereby assigns (and shall cause its employees or representatives to assign) to APC/AMF all of their right, title and interest in and to such work, and APC/AMF shall be free to exploit such work on behalf of any customer. Notwithstanding APC/AMF’s delivery of products to customer, customer agrees that (a) APC/AMF is the exclusive owner of (and retains all right, title and interest in and to) all inventions developed or conceived of by APC/AMF (or its employees or affiliates), and all associated patent rights, (b) APC/AMF is the exclusive owner of (and retains all right, title and interest in and to) all other intellectual property rights developed or acquired by APC/AMF that relate to the products, and (c) APC/AMF has not provided to customer any express or implied license to use any APC/AMF trademark, service mark, trade dress, or trade name. APC/AMF will have no obligation for any intellectual property infringement claim due to (x) any use of APC/AMF products in combination with other products or materials or in a manner not expressly authorized by APC/AMF or that involves any modification of APC/AMF’s products, or (y) any APC/AMF products made to customer’s specifications or design.
15. Privacy Consent Notice: APC/AMF collects and maintains certain personal data in its business-to-business relationships, as needed for the purposes described below, including the customer’s representatives’ or employees’ name, title, email address, phone numbers and mailing address (“Personal Data”). Such Personal Data may be needed in order for APC/AMF to be able to communicate with the customer and to manage the sale and supply of products to the customer. APC/AMF may share Personal Data with its affiliates in order to support the sale or supply of products and related services. APC/AMF and its affiliates will collect and use Personal Data in accordance with applicable privacy and data protection laws, in order to communicate with the customer regarding pending and potential supply activities, for customer management purposes and other legitimate business purposes concerning the customer’s and APC/AMF’s business relationship. It is the customer’s responsibility to inform its employees and representatives of the information set out in this clause. It is also customer’s responsibility to ensure the security and integrity of the Personal Data when it is in transit from the customer to APC/AMF. CUSTOMER CONSENTS AND WILL SECURE ALL NECESSARY CONSENT AND AUTHORITY OF ITS EMPLOYEES AND REPRESENTATIVES TO AND FOR THE TRANSFER TO AND PROCESSING OF ANY PERSONAL DATA TO APC/AMF AND ITS AFFILIATES WHETHER LOCATED IN THE UNITED STATES OR ANY OTHER COUNTRIES FOR THE PURPOSES DESCRIBED IN THIS PARAGRAPH OR FOR ANY OTHER PURPOSE TO WHICH CUSTOMER CONSENTS. Customer will indemnify, defend and hold harmless APC/AMF and its affiliates from and against any claim arising out of or in connection with the customer’s failure to comply with this clause or any privacy and data protection laws applicable to the customer.
16. Any notice required herein shall be given in writing and in a manner expressly provided herein. Any such notice shall be effective as follows: (i) if sent via e-mail and mail, when transmission is confirmed and a hard copy has been deposited in the mail; (ii) if sent via overnight courier, on the next business day following deposit with a recognized overnight courier service; (iii) if sent via certified mail, on the third mail day following deposit with the postal service; or, (iv) if delivered by hand, when received by an agent or representative of the recipient. Any such notice must be addressed and sent to an authorized official of the recipient.
17. All offers to purchase, quotations, and contracts of sale are subject to final acceptance by us at our offices in Chicago, Illinois. If the customer is a U.S. resident, this agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law principles, and APC/AMF and customer agree that any disputes arising under or in connection with the agreement will be litigated, if at all, solely in the courts of the State of Illinois and/or federal courts located in the County of Cook and/or the City of Chicago, Illinois. If customer is not a U.S. resident, any claim or controversy arising out of or relating to the Terms, including but not limited to its breach, existence, validity or enforceability, will be settled by binding arbitration by a single arbitrator under the Commercial Rules of Arbitration of the American Arbitration Association and conducted in Chicago, Illinois, U.S.A., and the laws of the State of Illinois and the United States will govern the Terms, irrespective of its conflicts of law provisions. The arbitrator’s ruling shall be final and may be enforced in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The language of the agreement is English. Any claim or cause of action for breach of warranty must be made or brought, as the case may be, within one year after the claim or cause of action has accrued.
18. The Terms are (i) a final written expression of all of the terms of the parties' agreement with respect to the subject matter hereof and (ii) a complete and exclusive statement of those terms. These terms may only be amended or supplemented in a writing signed by duly authorized representatives of the parties. This agreement shall be binding upon and inure to the benefit of the parties' respective successors and permitted assigns. Either party may assign the agreement to a buyer of all or substantially all of the assets of such party dedicated to the performance of the Terms.
19. Color Control of Anodized or Subsequently Anodized Panels Supplied by Accurate Perforating Co. - Although we try to control the color variation from panel to panel as much as possible by using same cast and or heat lot on architectural projects, on subsequently anodized products, variations in color still may occur. If this is a concern to your project, then an anodize range sample which consists of a set of two anodized color chips for a single color can be provided as a reference. The set includes a light sample and a dark sample, which provides you with a visual reference to represent the extremes of appearance that may appear on the finished anodized parts.