Terms and Conditions of Sale
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All goods or services furnished by AEP Colloids (“AEP”) are governed by the below Terms and Conditions of Sale (the “Terms”) and any purchaser of products or services from AEP (“Buyer”) agrees to be bound by these Terms.
1. GENERALLY – AEP’s offer for sale of goods and Buyer’s acceptance of any such offer is governed exclusively by these Terms unless otherwise agreed to in writing and signed by AEP and the Buyer. If an order is deemed to be an offer by Buyer, AEP’s acceptance of such offer is expressly conditioned on Buyer’s assent to these Terms. Any additional, different, or conflicting terms proposed by Buyer in any offer, acceptance, confirmation (including any Buyer purchase order or specifications) or otherwise, (a) are requests for material alterations to these Terms, (b) are hereby rejected and objected to by AEP, and (c) will not be binding in any way on AEP.
2. PRICE; PAYMENT – Any product sold by AEP to Buyer is offered for sale at prices to be established by AEP. Unless otherwise specified on AEP’s invoice, order confirmation, acknowledgment or otherwise agreed to by the parties in writing, Buyer will pay for all goods on a net thirty (30) day basis or, if required by AEP, prior to delivery. AEP reserves the right to assess reasonable interest charges (1½ % per month) on any amounts not paid by the date such payments are due and late fees of $100.00 per month. All orders are subject to credit approval by AEP. AEP reserves the right to withhold shipment or to require other adequate assurances of performance of Buyer’s payment obligations as AEP, in its discretion may require, notwithstanding any order confirmation issued by AEP.
3. TAXES – AEP’s price for goods is exclusive of any Federal, state, or local sales, use, or excise taxes levied upon, or measured by, the sale, the sales price, or use of goods required in the performance of any order. AEP will list separately on its invoice any such taxes applicable to any such goods or transaction, and payable by Buyer, with respect to which Buyer does not furnish to AEP evidence of exemption.
4. SHIPPING AND DELIVERY – AEP and the Buyer will set forth on their purchase order who is responsible for the shipment of the goods purchased from AEP. If AEP is responsible for shipping, then it agrees it is responsible for the goods purchased until received by the Buyer. If Buyer makes any claims related to damage of goods at time of receipt, said claim(s) must be accompanied by a signed Bill of Lading substantiating such. However, should the Buyer be responsible for the shipping, then it agrees to be responsible for the product following it leaving the possession, custody or control of AEP.
5. PRODUCT WARRANTIES – AEP warrants to Buyer that at the time of delivery AEP will have good title to all goods supplied to Buyer and the right to convey title to such goods to Buyer free and clear of all liens. The warranties stated in this Clause 5 are the only representations and warranties AEP has given Buyer in connection with the provision of goods to Buyer. Except as set forth in this Clause 5, AEP has not made and hereby expressly disclaims any other or further representation or warranty, either express or implied, concerning the goods. THE WARRANTIES GIVEN IN THIS CLAUSE 5 ARE IN LIEU OF ALL OTHER WARRANTIES AEP MIGHT HAVE GIVEN BUYER, INCLUDING
WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR INTENDED USE. All other warranties AEP or anyone purporting to represent AEP may have given, or which may be provided or implied by law or commercial practice, ARE HEREBY EXCLUDED.
6. NON-CONFORMING GOODS – Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the goods. Unless Buyer provides AEP with written notice of any dispute regarding a potential shortage, defect or nonconformity in the goods within five (5) business days after receipt of shipment, such goods shall be deemed finally inspected, checked and accepted by Buyer and Buyer’s failure to provide such notice shall be deemed to constitute a waiver of any such dispute.
7. LIMITATION OF LIABILITY – AEP’S LIABILITY FOR ITS GOODS AND SERVICES UNDER ALL THEORIES OF LIABILITY SHALL BE LIMITED TO REPAIRING OR REPLACING THOSE FOUND BY AEP TO BE DEFECTIVE, OR AT AEP’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS. ANY SUCH REFUND MAY BE ACCOMPLISHED BY A CREDIT TO BUYER’S ACCOUNT FOR THE APPLICABLE PORTION OF THE PURCHASE PRICE. AT AEP’S REQUEST, BUYER WILL PERMIT AEP OR ITS DESIGNEE TO INSPECT ANY ALLEGEDLY DEFECTIVE GOODS INCLUDING SHIPMENT OF SUCH ALLEGEDLY DEFECTIVE GOODS TO THE LOCATION SPECIFIED BY AEP AT AEP’S COST.
8. DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES – AEP SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH BUYER’S PURCHASE OF PRODUCTS FROM AEP, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON AEP HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT.
9. INDEMNITY – Buyer shall indemnify, defend and hold AEP and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including attorneys’ fees) resulting or arising from (a) Buyer’s negligence or willful misconduct, (b) Buyer’s use, sale, handling, storage, or disposal of the goods or any product or waste derived therefrom, (c) Buyer’s failure to properly label and/or identify the products purchased from AEP should Buyer resell the product, (d) Buyer’s discharge or release of the goods or any product or waste derived therefrom into water, onto land or into the air, (e) Buyer’s exposing any person (including Buyer’s employees) to the goods or any product or waste derived therefrom, including failure to warn of such exposure, or (f) the transportation of the goods to Buyer after tender of the goods by AEP to the carrier at AEP’s shipping point. The foregoing shall apply, without limitation, to injury to person (including death) or damage or harm to property or the environment. This indemnity shall not apply to any fine, penalty, suit, action, claim, liability, judgment, cost or expense caused solely by AEP’s negligence or willful misconduct, but shall apply where there is concurrent negligence or willful misconduct on the part of AEP and Buyer in proportion to Buyer’s negligence or willful misconduct.
10. FORCE MAJEURE – Except for the payment of monies owed, neither party will have any liability for any breach or failure to perform that is the result of an event, condition or circumstance beyond that parties’ reasonable control, including, without limitation, acts of God, war, insurrection, or terrorism, fire, inclement weather, strikes, boycotts, or other similar circumstances. If a party becomes aware of any such event, condition or circumstance, then such party will promptly advise the other party, and both parties will cooperate to ameliorate the circumstance or condition as quickly as possible.
11. GOVERNING LAW; DISPUTE RESOLUTION – To the extent a dispute arises between AEP and Buyer, such dispute shall be governed, interpreted and constructed by and in accordance with New York law, without regard to any conflict of law provisions. AEP and Buyer agree that any controversy or claim arising between them shall first be mediated and should mediation be unsuccessful, such dispute shall be settled by binding arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator(s) shall be final and binding upon the parties hereto and judgment on the award may be entered in any court of competent jurisdiction. The Parties further agree that the cost of mediation and/or arbitration will be split equally between AEP and Buyer and the location of any mediation and/or arbitration shall be in Saratoga County, New York, unless another location is mutually agreed to by the parties.
12. COMPLIANCE WITH LAWS – Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the goods.
13. COMPLETE AGREEMENT – These Terms contain the complete and final agreement between Buyer and AEP and supersede all other and further agreements, representations, warranties, covenants, promises, and other contractual obligations between the parties in respect of the subject hereof unless otherwise agreed to in a writing signed by AEP. These Terms may be amended, modified or waived only by a written instrument that refers expressly to this paragraph and is signed by an authorized representative of AEP. E-mails and electronic on-line, internet or other terms of Buyer shall not be deemed a means of modifying or amending these Terms.
14. NO DELEGATION – Seller shall not delegate its duties under this Contract without the prior written consent of Buyer.
15. AMENDMENTS – Unless otherwise specified, amendments, verbal collateral agreements, guarantees, representations on the condition of the goods and subsequent supplementary stipulations shall only be valid if confirmed by AEP in writing. This also applies to statements made by AEP employees and any other vicarious agents.