These Terms and Conditions of Sale together with Buyer's Credit Application Terms and Conditions (if applicable), which are incorporated herein by reference, are between APR Supply Co, and Buyer, and form the entire agreement between APR Supply Co and Buyer and apply to all transactions between APR Supply Co and Buyer unless otherwise specifically agreed to in writing. Buyer acknowledges that standard business forms of Buyer, including purchase orders and requests for proposal may be used in the ordinary course of business between APR Supply Co and Buyer, but that such standard business forms will only be used to define the description, quantity, price and destination of goods to be sold, supplied or delivered by APR Supply Co to Buyer. All prior oral or written agreements, including but not limited to Buyer's purchase order, which are different from or purport to be in addition to these Terms and Conditions of Sale are not applicable and are not binding on APR Supply Co. Buyer will be deemed to have accepted these Terms and Conditions of Sale if any goods or services are sold, supplied or delivered by APR Supply Co to Buyer or an invoice is delivered by APR Supply Co to Buyer in respect of such goods or services.
Acceptance of Orders
All orders are subject to acceptance by APR Supply Co, which acceptance is contingent on adequate supply and, if applicable, credit approval of Buyer.
Buyer may not cancel, change or modify an order without the consent of APR Supply Co and payment by Buyer of all applicable cancellation or re-stocking fees. Special order items are subject to cancellation and/or re-stocking fees.
All prices are subject to change unless otherwise noted on APR Supply Co's quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices
All Credit accounts are due per the terms agreed upon by both parties in the current credit agreement signed by both parties. This include applicable discounts, late charges, service charges, and associated processing fees. The amount of credit granted may be changed or credit withdrawn at any time at the discretion of APR Supply Co.
All orders are shipped F.O.B. point of shipment. Risk of loss will transfer to Buyer upon tender of goods to Buyer, Buyer's representative or common carrier.
Delivery to the job site or other location indicated by Buyer constitutes delivery to Buyer, regardless of whether Buyer or Buyer's agent is at such location at the time of delivery or signs a delivery receipt. APR Supply Co will make a good faith effort to complete the delivery of all goods ordered by Buyer; provided, however, that APR Supply Co assumes no responsibility or liability and will not accept any back charge for any loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to APR Supply Co, including but not limited to as a result of APR Supply Co's non-performance caused by an act of God, war, labor disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind which is beyond the control of APR Supply Co.
Inspection and Acceptance
Buyer shall examine all goods upon receipt and prior to installation. All claims for damage, shortage, errors in shipment or improper delivery must be made to APR Supply Co in writing within five (5) business days of delivery, after which date Buyer will be deemed to have irrevocably accepted the goods, if not previously accepted, and will have no right to reject the goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to APR Supply Co in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
Items which are not shipped are back-ordered for future shipment unless Buyer cancels its order in accordance with these Terms and Conditions of Sale.
Buyer may return any goods which APR Supply Co stocks and which are not special order items if: (a) it is in new condition, suitable for resale in its undamaged original packaging and with all original parts; and (b) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns are subject to a cancellation or re-stocking fee, unless otherwise agreed to by APR Supply Co. Special orders or non-stock items may be returned if the manufacturer is willing to accept the return.
Buyer is not entitled to set-off any amounts due to APR Supply Co by any amount due by APR Supply Co to Buyer in connection with any transaction governed by these Terms and Conditions of Sale.
Buyer acknowledges and agrees that, in the event that Buyer purchases goods from APR Supply Co and supplies or incorporates such materials in respect of an improvement pursuant to the applicable provincial construction or builder's lien legislation, such goods will be deemed to have been purchased pursuant to a prevenient arrangement and that one continuing contract is deemed to be in place.
Exclusion of Warranty and Limitation of Liability
APR Supply Co warrants only its title to goods sold, supplied or delivered to Buyer. All other warranties are those of the relevant manufacturer. APR Supply Co assigns to Buyer any warranty provided by its suppliers and by the manufacturer. Buyer waives any right to legal action against APR Supply Co for damage caused by the goods sold, supplied or delivered by APR Supply Co, which includes and not limited to environmental damages. Any warranty is void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation. Buyer's sole and exclusive remedy will be the repair, replacement or refund of the purchase price paid for product returned during the relevant manufacturer's warranty period and acceptance of warranty claim by the manufacturer.
APR SUPPLY CO DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. APR SUPPLY CO WILL NOT, IN ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES SUFFERED BY BUYER AND IN NO EVENT WILL APR SUPPLY CO'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE GOODS SOLD, SUPPLIED OR DELIVERED TO BUYER.
If Buyer is in default of these Terms and Conditions of Sale, APR Supply Co may, at its option, cancel any unexecuted portion of any order to which these Terms and Conditions of Sale apply and/or exercise any right or remedy which may be available to it at law. Buyer will be in default under these Terms and Conditions of Sale if: (a) the Buyer fails to perform any covenant, term or condition contained herein or breaches any representation or warranty given by Buyer to APR Supply Co; (b) Buyer fails to give a required notice to APR Supply Co; (c) the Buyer is insolvent or the Buyer fails to pay debts as they come due.
Buyer shall indemnify, hold harmless and defend APR Supply Co and its employees, officers, directors and agents from and against any action, cause of action, judgment or claim for damages to property (including environmental damages) or bodily injury, loss of life, liability of any nature (including the violation of any applicable laws or regulations in connection with the sale, transportation, installation, use or repair by Buyer of the goods sold, supplied or delivered by APR Supply Co), costs, or expenses including reasonable legal fees to the extent caused by the negligent act or omission or willful misconduct of or breach of these Terms and Conditions of Sale by Buyer.
These Terms and Conditions of Sale will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any of the provisions contained in these Terms and Conditions of Sale are held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction; provided, however, that if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provisions will be severed from the remainder of these Terms and Conditions of Sale without affecting the enforceability or validity of the remaining provisions.
The failure of APR Supply Co to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the right or remedies of APR Supply Co, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by APR Supply Co
These Terms and Conditions of Sale are governed by the laws of the state of Pennsylvanio and the federal laws of the United States of America applicable therein without regard to conflict of law provisions and Buyer hereby irrevocably attorns to the jurisdiction of the courts of such province. All actions, regardless of form, arising out of or related to a transaction governed by these Terms and Conditions of Sale must be brought against APR Supply Co within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.