Terms & Conditions
AMERICAN PAPR LLC
TERMS AND CONDITIONS OF SALE
- Offer, Governing Provisions and Cancellation. This document is an offer or counter-offer by American PAPR LLC, a Delaware limited liability company (“Seller”) to sell the products (collectively, the “Products”) described in the accompanying quotation, proposal, order acknowledgment, invoice or other document provided by Seller to Buyer herewith (the “Seller Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by buyer (“Buyer”), and is expressly conditioned upon Buyer’s assent to these Terms. Seller objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Buyer to Seller. No such additional or different terms or conditions will be of any force or effect. These Terms, together with the consistent terms provided by Seller in the Seller Document, shall be referred to herein as the “Agreement” and will be the entire agreement between Seller and Buyer on the subject of the transaction described herein and therein; there are no conditions to the Agreement that are not so contained or incorporated. THE AGREEMENT AND ANY DISPUTE ARISING HEREFROM WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF NEW YORK AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Buyer and Seller each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in the United States District Court for the Southern District of New York or the courts in the State of New York sitting in or proximate to New York City and each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts.No accepted offer may be cancelled or altered by Buyer except upon terms and conditions accepted by Seller in writing, and no changes to the Agreement will be binding unless set forth in writing and manually signed by Seller. This offer may be revoked by Seller at any time before it is accepted by Buyer, and will automatically expire 30 calendar days after its date if Buyer has not accepted it before then. Neither Buyer’s acceptance of this offer nor any conduct by Seller (including but not limited to shipment of Products) will oblige Seller to sell to Buyer any quantity of Products in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.
- Credit Approval; Payment Terms; Storage. All payment terms set forth in this document are subject to Seller’s approval of Buyer’s credit, in Seller’s discretion; if such approval is withheld, payment in full will be due in advance of Seller’s performance. Except as otherwise provided in the Seller Document or in the preceding sentence, (a) fifty percent (50%) of the aggregate purchase price for the Products identified on the Seller Document (the “Deposit”) is due and payable as a refundable deposit upon Buyer’s execution of the Seller Document and (b) the balance of the purchase price for each Product is due within thirty 30 calendar days of Buyer’s receipt of Seller’s invoice therefor following shipment. If production or shipment of completed Products, or other Seller performance, is delayed by Buyer, Seller may immediately invoice, and Buyer will pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, Buyer will compensate Seller for storage of completed Products or work in process during any such delay, whether stored at Seller’s facility or an independent storage company’s facilities.
- Prices, Taxes and Other Charges. Unless otherwise provided in the Agreement, prices quoted are subject to change by Seller without notice. All prices listed in Seller’s publications (including on Seller’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by No order shall be binding upon Seller until received and accepted by Seller in its sole discretion. All prices, and amounts payable, under the Agreement are in U.S. Dollars. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer will be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes or other charges, Buyer will reimburse Seller therefor on demand.
Delivery, Claims and Force Majeure. Unless otherwise provided in the Seller Document, Products shall be delivered to Buyer F.O.B. Seller’s loading dock (as defined in the New York Uniform Commercial Code) or, for ultimate destinations outside of the U.S., EXW Seller’s loading dock (as the latter shipping term is defined in Incoterms 2020). Delivery of Products to the carrier will constitute delivery to Buyer, and regardless of shipping terms or freight payment, Buyer will bear all risk of loss or damage in transit. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Buyer.
Claims for loss of or damage to Products in transit must be made to the carrier, and not to Seller.
All delivery dates are approximate. Seller will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, whether foreseeable or unforeseeable, including but not limited to any act of God, act of Buyer, embargo or other governmental act, epidemic, pandemic, quarantine, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. For the avoidance of doubt, the foregoing includes, without limitation, any delays or failures attributable in whole or in part to the global COVID-19 pandemic. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay.
If the occurrence of a contingency the non-occurrence of which was a basic assumption on which Seller’s agreement to sell hereunder was predicated affects only a part of Seller’s capacity to perform Seller’s contracts with Buyer and others, and to provide for Seller’s internal use, for similar products or services, Seller will allocate its available capacity first to the satisfaction of its internal needs and then in any manner that Seller determines, in good faith.
- Changes. Seller may at any time make such changes in design and construction of Products, components or parts as Seller deems appropriate, without notice to Buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or nonavailability of materials from suppliers.
- Intellectual Property. All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products or the provision of ancillary services shall belong to and remain vested in Seller. Nothing in the Agreement grants to Buyer any right, title or interest in or to Seller’s intellectual property.
- No Returns. Except as otherwise agreed to in writing by Seller, no Products will be accepted for return.
Warranties. Seller warrants that the Products shall (a) conform to the specifications (if any) provided to Buyer contemporaneously herewith and (b) be free of defects in materials and workmanship, in each case for one (1) year after the delivery of the Products to Buyer by Seller (the “Warranty Period”). If, within the Warranty Period, any such Products shall be proved to Seller’s satisfaction to be non-conforming or defective, Seller shall, at its option: (a) repair or replace the affected part free of charge, at Seller’s expense and risk of loss, and send such repaired or replaced part of the Product to Buyer; or (b) refund to Buyer the price paid by Buyer for such defective Products. Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller’s sole obligation and Buyer’s exclusive remedy for any deficiency in Products furnished hereunder, and shall be conditioned upon Buyer’s return of such Products to Seller or, in Seller’s sole discretion, inspected in the field by a Seller-authorized representative, in either case at Buyer’s expense and risk of loss. Any parts of Products repaired or replaced under this warranty are warranted only for the balance of the Warranty Period on the original part that was repaired or replaced.
Seller warrants that any services it provides hereunder will be performed in a manner consistent with customary practice in its industry. Should a failure to conform to this warranty appear within thirty 30 calendar days after completion of any services, and, if promptly notified thereof in writing, Buyer’s sole and exclusive remedy (and Seller’s sole and exclusive liability) for any breach shall be for Seller to either (a) re-perform the services, or (b) provide Buyer with a refund of that portion of amounts paid by Buyer to Seller for the defective services (whichever Seller determines, in its discretion, to provide).
ACKNOWLEDGEMENT. Seller warrants that a version of the Product has been granted a limited, temporary Public Health Emergency certificate of approval by the National Institute for Occupational Safety and Health (“NIOSH”). The limited approval will be effective until the declaration justifying the authorization of the emergency use of personal respiratory protective devices during the COVID- 19 outbreak is terminated under Section 564(b)(2) of the Federal Food, Drug, and Cosmetic Act (“Act”), or the emergency use authorized is revoked under Section 564(g) of the Act, or until such time that the approved configuration can no longer be maintained. Other than such temporary NIOSH approval, Buyer hereby acknowledges, recognizes, and accepts that the Products do not comply with the requirements for Medical Devices promulgated by the United States Food and Drug Administration (the “FDA”) or any other medical or respirator requirements required under applicable laws, rules, regulations or guidelines. As the Products are not approved or cleared by the FDA, Seller does not represent that the Products will prevent against infection by bacteria, virus, or other pathogens, including the infection by SARS-CoV-2, which virus causes COVID-19.
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, PUNITIVE INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Products, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. Seller shall not be liable to Buyer for any amount with respect to any order of Products that, in combination with all claims by Buyer against Seller related to such order of Products, exceeds the total price paid by Buyer to Seller for such order of Products. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Seller to Buyer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity.
- BUYER’S INDEMNITY. Buyer shall indemnify, defend and hold harmless Seller and its officers, members, managers, agents, employees, successors and assigns from and against any and all losses, damages (including damages arising from personal injury or death), liabilities, costs and expenses (including attorneys’ fees) that may arise out of Buyer’s acts or omissions, including, but not limited to: (a) any breach by Buyer of the Agreement; (b) any violation by Buyer of any law, rule or regulation; (c) any resale of the Products by Buyer; (d) any use of the Products by Buyer or any of its employees or agents, including, without limitation, use resulting in the contraction or spread of any illness, disease, infection, cold, virus or other pathogen, including COVID-19, (e) any negligence or willful misconduct of Buyer; and/or (f) any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties to the extent that any Products are manufactured in accordance with drawings, designs or specifications proposed or furnished by Buyer. Seller shall give Buyer written notice of any claim for which indemnification is sought under the Agreement, provided that the failure to give such written notice shall not, however, relieve Buyer of its indemnification obligations, except and only to the extent that Buyer forfeits rights or defenses by reason of such failure. Seller, may, at Seller’s option, assume and control the defense of the claim, and in such case, Buyer shall indemnify Seller from and against losses, damages, costs and expenses (including attorneys’ fees, court fees, and other defense costs) incurred by Seller in defending such claims. If Seller decides not to assume the defense of a claim, then Buyer shall assume and control the defense of such claim, at Buyer’s expense and by Buyer’s own counsel (which counsel shall be subject to the approval of Seller, which approval will not be unreasonably withheld or delayed); provided that Seller shall have the right to participate in the defense of any claims with counsel selected by it at Seller’s expense. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any claims. Notwithstanding any other provision of this Agreement, Buyer shall not consent to the entry of any judgement or enter into any settlement of any claims without the prior written consent of Seller.
- ASSUMPTION OF RISK RE: COVID-19; RELATED NOTIFICATIONS. SELLER SHALL NOT BE LIABLE FOR, AND HEREBY DISCLAIMS, ANY AND ALL INJURIES, LIABILITIES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY AND ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE AND CONTINGENT DAMAGES), TO BUYER, ITS EMPLOYEES OR AGENTS OR TO ANY THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR USE OF THE PRODUCTS OR ARISING OUT OF THE CONTRACTION OR SPREAD OF ANY ILLNESS, DISEASE, INFECTION, COLD, VIRUS OR OTHER PATHOGEN, INCLUDING COVID-19, IN CONNECTION WITH THE PRODUCTS, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW OR EQUITY, EVEN IF BUYER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Buyer hereby assumes, and releases Seller from, any and all such injuries, liabilities, and damages now existing or hereafter arising. BUYER ACKNOWLEDGES, AND ACCEPTS FULL RESPONSIBILITY FOR INFORMING ANY WEARER OF THE PRODUCTS, THAT THE PRODUCTS WILL NOT NECESARILLY PREVENT THE SPREAD OF SARS-COV-2 NOR PROTECT WEARERS FROM CONTRACTING COVID-19.
- Insurance. At Buyer’s expense, Buyer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by Seller from time to time. Buyer shall ensure that Seller is named as an additional insured on such insurance policies, and Buyer shall provide Seller with certificates of such insurance upon request.
Designs and Tools. Any design work performed by Seller, and any dies, molds, jigs or other tools that Seller manufactures or acquires, in connection with its performance hereunder will be and remain the sole property of Seller, notwithstanding any charges to Buyer therefor. Any such charges convey to Buyer the right to have the designs, dies, molds, jigs and/or other tools used by Seller for performance hereunder, but do not convey title or right of possession or any other right.
- Government Contracts.If the provision of Products by Seller under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Buyer shall so notify Seller in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.
- Security Interest. If the Products are sold on credit terms, Buyer acknowledges that Seller retains a purchase money security interest in the Products. To secure Buyer’s obligations to Seller under the Agreement or any other agreement, Buyer hereby grants to Seller a security interest in all the Products sold under the Agreement, whether now owned or hereafter acquired, and all products and proceeds thereof. Seller may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest.
- Cumulative Remedies.Seller’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Seller at law or in equity.
- No Assignment. Buyer shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.
- Confidential Information. Any and all designs, sketches, models, or samples, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Seller or its affiliates to Buyer or its affiliates, or otherwise acquired, obtained or developed by Buyer under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Seller. “Confidential Information” shall not include any item of information that Buyer can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Buyer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Buyer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Buyer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms; or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Buyer and ending on the later of (x) the date such Confidential Information is no longer a trade secret under applicable law, or (y) the date that is 3 years after the date that Seller accepts the last purchase order submitted by Buyer; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Buyer and ending 3 years after the date that Seller accepts the last purchase order submitted by Buyer. Buyer acknowledges and agrees that money damages for any and all breaches of Buyer’s obligations under this Section 18 are both incalculable and insufficient and that any such breach would irreparably harm Seller. Therefore, in the event of an actual or prospective breach of any such obligation, Seller shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section 18 against Buyer in addition to any other remedies to which Seller may be entitled at law or in equity.
Relationship of Parties. Buyer and Seller are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
UPDATES. THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SELLER UPON WRITTEN NOTICE TO BUYER.