Terms & Conditions

TERMS AND CONDITIONS OF SALE OF APEX SUPPLY CHAIN TECHNOLOGIES

Applicability. Any contract formed between Apex and Customer shall consist exclusively of, and all sales by Apex are subject only to, the terms and conditions in Apex’s quotations and order acknowledgements, in these Terms and Conditions of Sale and in any written agreement signed by both Apex and Customer. Apex hereby objects to and rejects any and all additional or contrary terms and conditions in Customer’s purchase order and in any other document issued by Customer, none of which shall be part of any contract between Apex and Customer or otherwise binding on Apex. Any acknowledgement by Apex of an order from Customer, or reference to any such order, or performance pursuant to any such order, shall not be deemed an acceptance by Apex of any additional or contrary terms and conditions contained in any document issued by Customer.

Order Confirmation. Customer’s orders shall not bind Apex until confirmed by Apex in writing or by any electronic means of its choice. Orders may not be cancelled by Customer without Apex’s prior written approval. Apex reserves the right to cancel in whole or in part any order at any time.

Price. The price indicated on Apex’s order confirmation shall be considered to be the price agreed between Customer and Apex. In case of multiple or future deliveries, prices are subject to revision by Apex at any time. Prices do not include sales, use, value-added or other taxes which Apex may be required to collect from Customer or pay upon or in connection with the sale.

Payment. Customer shall pay on the terms stated on Apex’s order confirmation or, failing such indication, net without discount 30 days from date of invoice. Apex reserves the right to suspend further deliveries, to render inoperable all Apex goods previously purchased or otherwise acquired by Customer and to take all other actions permitted by law in the event Customer fails to pay in full when due for all amounts due Apex. In case of late payment, Customer shall be liable to Apex for a late payment fee equal to the lesser of 1.5% per month on all overdue amounts or the maximum amount permitted by law. All payments shall be made without set-off, deductions or counterclaims.

Delivery. Apex shall deliver the goods Ex Works or F.O.B. Des Moines, Iowa. Delivery dates are estimates only and are not guaranteed by Apex. Each delivery of goods shall constitute a separate contract. Title and risk of loss shall pass to Customer upon delivery to Customer or to Customer’s approved carrier.

Enforcement. If Apex is required to take any action to collect any amounts due from Customer, or otherwise enforce its rights against Customer, Apex shall be entitled, in addition to all its other rights and remedies, to recover from Customer all of Apex’s resulting expenses including attorneys’ fees and court costs.

Limited Warranties. Apex warrants to Customer only that the goods shall conform to Apex’s standard specifications in effect on the date of shipment and under normal use and service shall be free of defects in materials and workmanship for a period of one year from the date of shipment. This limited warranty shall not apply to light bulbs, ballasts, fuses, finish/paint or operating supplies. This limited warranty also shall not apply to failure in performance or damage due to failure to follow installation, operating and maintenance instructions, misuse, abuse, accident, vandalism, fire or neglect or by improper voltage or improper wiring. This limited warranty also does not apply to any goods which have been altered or repaired except by Apex or an authorized Apex service provider. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE GOODS, USED ALONE OR IN COMBINATION WITH OTHER MATERIALS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, HEREBY ARE DISCLAIMED.

Claims. All claims by Customer including, without limitation, claims for alleged defects, damage or shortage, must be made in writing and received by Apex within 10 days after Customer’s receipt of the goods. Claims concerning defects, damage or shortage that could not be discovered within the above time limit despite timely inspection of the goods must be made in writing and received by Apex within 10 days from the date Customer discovered or should have discovered the defects, damage or shortage and, in any event, within 90 days after Customer’s receipt of the goods. Failure of Customer to give notice of any claim within the applicable time period specified above shall be deemed an absolute and unconditional waiver of such claim.

Sole Remedies. The sole obligation of Apex under this limited warranty or otherwise is, at its option, to replace or repair such goods or to issue to Customer in an amount not to exceed the purchase price of such goods, either a refund or a credit for future orders. No goods may be returned to Apex without its prior written authorization. IN ALL EVENTS APEX’S LIABILITY SHALL BE EXPRESSLY LIMITED TO THE PURCHASE PRICE OF THE QUANTITY OF GOODS IN RESPECT OF WHICH ANY CLAIM IS MADE. Apex shall have no other liability whatsoever, whether based on breach of contract, negligence, gross negligence, strict liability or any other claim and under no circumstances shall Apex be liable for lost profits or revenues, special, incidental, indirect, consequential or exemplary damages incurred by Customer or any third party.

Limitation of Actions. Any action by Customer on a claim against Apex must be commenced within one year from the date on which the right of action accrues.

IP Ownership, Confidentiality and Non-Use. Customer acknowledges and agrees that Apex makes considerable investment in the creation and evaluation of all goods it sells to Customer and, to protect the proprietary and confidential nature of Apex’s goods, Customer further acknowledges and agrees that: Apex is, and at all times shall remain, the sole owner of all scientific and technical information related to the goods including, without limitation, all know-how, methods, processes and specifications; Customer shall keep all such information in strict confidence and shall not disclose or make available any such information to any third party; and Customer shall not directly or indirectly use any such information in whole or in part to procure any goods except from Apex. Customer shall not perform, procure, permit or facilitate any analysis, reverse engineering or replication of Apex’s goods.

Use of Goods. Customer acknowledges and agrees that Apex is in no way responsible for the use of Apex’s goods by Customer, that Apex cannot anticipate all conditions under which Apex’s goods may be used and that Customer shall conduct its own tests to determine the safety and suitability of Apex’s goods for Customer’s purposes. Any representations or other statements concerning the goods, other than those in Apex’s quotations and order acknowledgements, in these Terms and Conditions of Sale, or in any other written agreement signed by both Apex and Customer, are not binding on Apex and Apex shall not be liable for any such representations or other statements. Customer agrees to indemnify and defend Apex, and hold Apex harmless, from and against any and all demands, claims, causes of action, damages, liabilities, losses, costs (including, without limitation, attorneys’ fees and court costs) and expenses arising out of, or in connection with, Customer’s use of the goods.

Excuse of Performance. No liability shall result from delay in performance or non-performance by Apex caused by circumstances beyond its control including, without limitation, acts of God, fire, flood, explosions, riots, wars, terrorism, perils of the sea, labor troubles, machinery breakages, government actions or prohibitions, shortages of raw materials or energy at reasonable cost, and/or traffic stoppages.

Compliance With Laws. Customer shall comply with all applicable laws and regulations relating to the goods.

Duty of Care. Customer at all times shall handle the goods with care and in accordance with any written or oral instructions by Apex as to the storage, use or maintenance of the goods and shall not take or fail to take any action which adversely affects the quality or safety of the goods or Apex’s reputation.

No Waiver. Failure or delay by Apex in enforcing any right which it may have in any instance shall not be deemed to be a waiver of any right it may have in that or any other instance.

Severability. Each provision of these Terms and Conditions of Sale shall be interpreted in such a manner as to be effective and valid under applicable law. The determination by any court of competent jurisdiction that one or more of the sections or provisions of these Terms and Conditions of Sale are unenforceable shall not invalidate the remaining Terms and Conditions of Sale, and the decision of such court shall be given effect so as to limit to the extent possible the sections or provisions which are deemed unenforceable.

Entire Agreement. Apex’s quotations and order acknowledgements, these Terms and Conditions of Sale, and any other written agreement signed by Apex and Customer, together constitute the entire agreement between Apex and Customer and the complete and exclusive statement of the terms of their agreement.

Amendments. Apex’s quotations and order acknowledgements these Terms and Conditions of Sale, and any other written agreement signed by Apex and Customer may be amended only in a writing signed by both parties.

Assignment. Customer shall not assign its rights or delegate its performance hereunder without the prior written consent of Apex.

Applicable Law. Any contract formed between Apex and Customer including, without limitation, these Terms and Conditions of Sale, and all purchases by Customer from Apex, shall be governed by and construed in accordance with the law of the State of Ohio.

Jurisdiction. Customer hereby irrevocably consents to the non-exclusive personal jurisdiction of, to the service of process in connection with, and to the propriety of venue in, any action in the United States District Court for the Southern District of Ohio or in any Ohio state court with jurisdiction filed by Apex to enforce its rights against Customer.

Binding Effect. These Terms and Conditions of Sale shall be binding upon the successors and assigns of Customer and shall insure to the benefit of the successors and assigns of Apex.

(rev. February 2013)
848203.3