1. GENERAL DEFINITIONS
1.1. “APS” means Asphalt Producers Service DBA
1.2. “Agreement” means the written agreement, including these Sales Terms and Conditions and any addendum to them (“Addendum”) together with relevant Orders, made between Buyer and APS for the Deliverables.
1.3. “Buyer” means the entity issuing an Order.
1.4. “Deliverables” means equipment and parts (collectively “Products”), services (“Services”) and Software, each supplied or licensed by APS or its vendors to Buyer under an Order. 1.5. “Order” means a Buyer purchase order accepted by APS.
2. DELIVERY AND ACCEPTANCE
2.1 Buyer grants Asphalt Producers Service DBA a security interest in Products until paid in full, subject to applicable law. Deliverables are deemed accepted unless Buyer sends written notice specifying reasonable basis for rejection within 30 days after delivery. APS will, at its option, repair, replace, or re-perform rejected Deliverables.
2.2 If a delivery hereunder is delayed due to Buyer ́s actions or inaction, APS may extend delivery time equal to the length of such delay and shall be entitled to receive compensation for reasonable costs incurred by APS resulting from such delay.
2.3 APS will invoice handling costs, including for additional storage and logistics, if Buyer does not take delivery within 30 days after APS sends written notice to Buyer that the Deliverables are available for delivery.
3.1 Buyer will pay invoices within 30 days from the date of invoice to the account specified by APS with immediately available funds. APS may submit invoices electronically. Payment must be made in U.S. currency unless agreed otherwise in the Order.
3.2 Buyer must provide the following remittance information when making a payment: (a) invoice number, (b) amount paid. Payment must be in accordance with the “Remit To” field on each invoice.
3.3 APS may make partial deliveries that will be invoiced as they are delivered.
3.4 APS may also increase price and recover associated costs, for the following that occur between the date of the Order and delivery: (a) foreign exchange variation, (b) increased cost of third party content and materials, (c) periodic price increase of Products and Services, (d) impact of government tariffs, and (e) increases in costs of industrial metals.
3.5 If Buyer pays late, APS may:
(a) suspend deliveries until all delinquent amounts and late interest, if any, are paid,
(b) repossess Products or software for which payment has not been made,
(c) charge interest for non-payment at lesser of 1.5 % per month for each full or partial month or the maximum legal rate available under governing law,
(d) recover all costs of collection, including but not limited to reasonable attorneys ́ fees, and
(e) combine any of the above rights and remedies as may be permitted by applicable law.
3.6 If Buyer does not dispute an invoice within 15 days after invoice date, Buyer has waived the right to do so. APS reserves the right to correct any inaccurate invoices.
3.7 Buyer may pay by following credit cards: Visa, MasterCard or American Express. APS accepts credit card payment only if the credit card is charged on the same day APS invoices Buyer or before the date of the APS invoice. APS may levy a 3.5% surcharge on the complete invoice including the freight charges.
3.8 Buyer may not set off invoiced amounts against sums that are due from APS. APS extends credit only if Buyer maintains acceptable credit standing.
APS invoices for taxes, duties and charges, which are Buyer’s responsibility, unless Buyer provides acceptable exemption verification. If there is a delay in providing Tax Exempt Certification – and Sales tax is paid by APS, said sales tax is then due and un-refundable.
5. FORCE MAJEURE AND DELAY
Except payment obligations, neither Party is liable for failure to meet its obligations affected by a force majeure event. If performance is so delayed longer than 90 days, either Party can terminate the Order with notice. If Buyer causes delay, APS is entitled to adjust price, schedule and other affected terms.
6.1. APS warrants APS Products comply with applicable APS specifications and are free from material defects in workmanship and material for 12 months after date of delivery, and Services materially comply with defined requirements for 30 days from the date services are performed. Third party warranties, if any, are transferred to Buyer to the extent APS has the right to transfer. APS will, at its option, repair or replace defective Products, if returned to APS within the warranty period, and re-perform defective Services if notified to APS during the warranty period. Products repaired or replaced and Services re-performed are warranted for the remainder of the original warranty period or 90 days (for Products) whichever is longer.
6.2. APS is not, and will not be, liable for defects attributable to: (a) non compliance with APS’s instructions, (b) unauthorized alterations or repairs, (c) accident, contamination, abuse, or negligence, or (d) damage caused by failure of any item or service not supplied by APS.
6.3. WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE REMEDIES IN THIS SECTION ARE BUYER’S ONLY REMEDIES FOR BREACH OF WARRANTY.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL APS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, STATUTORY OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES OR USE, OR THE LOSS OR CORRUPTION OF DATA, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES. THE AGGREGATE LIABILITY OF APS RELATED TO THE ORDER WILL IN NO CASE EXCEED THE LESSER OF THE INITIAL ORDER PRICE OR US $1,000,000. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS APPLY IF LIABILITY ARISES FROM BREACH OF CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), OPERATION OF LAW, OR OTHERWISE.