Website Terms of Sale
Terms and Conditions of Purchase and Sale of Products
Effective Date: March 16, 2017
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT
INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, INCLUDING
LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the products (“Products”) by APP (“Seller”) to You (”Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. However, a unilateral purchase order supplied by you does not supersede these Terms.
The accompanying confirmation of sale (the “Sales Confirmation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
APP’s products are being sold to you for resale within a specific territory which comprises the area within which you currently do business, with the exception of the Internet (“Territory”). For Distributors and catalogue companies, your Territory shall be deemed to be the country within which you currently do business or any neighboring territory that has a treaty with your home office country which specifically allows for free trade in the neighboring territory. For retailers, your Territory shall be deemed any location where you have a brick and mortar retail store, and the immediate area (100 miles from the physical location) surrounding the store. Phone and direct marketing sales shall be permitted provided the seller has a brick and mortar store and is using that location for the sales, shipping and storage of APP product. Internet sales are explicitly excluded from Your Territory and sales outside Your Territory shall be deemed a breach of these terms and your use of any advertising or marketing material using the names, logos, trademarks, images or other depictions or descriptions of APP’s products shall be deemed unauthorized and a violation of APP’s intellectual property rights. Any other resellers, or companies that wish to have an exception to these Terms, should obtain prior written approval from APP.
APP offers a variety of standard stock products. We also offer Custom products. If You have questions about any of our products, please contact us at firstname.lastname@example.org and we will arrange to have a representative contact you. Please note that we cannot guarantee that we will always have products in stock or that the products will be exactly the same as that depicted on the Website. If you ever have feedback on our products or service, we would appreciate hearing from you. APP strives to always improve and your input is desired.
Payment & Shipping Information
Prices do not include shipping and handling, or applicable sales taxes unless otherwise noted, and these may be added to the price You pay at checkout (for internet orders) or in a Sales Confirmation, depending on your location of shipment or the type of products you purchase. APP accepts Visa, MasterCard, American Express, Discover or PayPal. Minimum order requirements may apply. Special billing terms, if needed, should be resolved through direct negotiations with APP.
All orders are shipped from our Dover, NJ warehouse. Typically, APP generally ships all orders within one (1) week or less (provided the product is in stock) of receiving a purchase order or Sales Confirmation. Typically orders ship using the most competitive ground service. If needed, APP can accommodate requests for express shipping as agreed between the parties (additional fees may apply). APP will inform you of estimated shipment dates, but it will not be responsible for delays in delivery due to events beyond its control, including but not limited to shortage of materials, labor strikes, transportation failures, or acts of god. The costs of shipping and handling, if any, will be shown on your packing slip, purchase receipt or invoice.
Title and risk of loss to the products ordered passes to you upon delivery to the ground service carrier. Currently, APP does not offer a drop ship program. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to APP a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the NJ Uniform Commercial Code.
APP may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order
Buyer shall pay all invoiced amounts due to APP on receipt of APP’s invoice. Buyer shall make all payments hereunder by readily available funds and in US dollars.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall pay all invoiced amounts due to Seller upon receipt of Seller’s invoice. Buyer shall make all payments hereunder in US dollars. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Buyer shall reimburse APP for any costs and fees, including attorneys’ fees should collection proceedings be initiated.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
APP cannot guarantee that every product you order will be available all times. Should an item you select not be available, APP will automatically cancel all back orders unless it is specified by the customers that we should ship back-orders when they are available. Shipping charges are applied to the shipment of all back orders.
Our products are intended to be sold at retail so that customers can appreciate the quality of our products. The “Territory” for which you are being provided products to distribute does not include the internet. All APP customers who wish to sell our products on their online internet sites or other internet platforms must receive written consent from APP. Please contact us for more details. To remain in good standing, no sales on eBay or similar auction sites are allowed.
Cancellations, Returns and Refund Policy
You may cancel any order for any reason up to twenty four (24) hours after it is submitted, excluding expedited orders, which cannot be cancelled for any reason. However, a cancelled or changed order may result in charges being applied. APP inspects all goods before they are shipped. However, if you find a problem with the product shipped, APP will gladly replace the item or refund the cost, provided that you notify APP within ten (10) days from the date of delivery (the “Rejection Period”). Replacement of the product, unless replacement is due to APP’s fault (to be determined by APP), may be subject to a restocking and shipping fee. If the wrong product is delivered, simply contact APP and we will arrange to have the product returned to us. However, NO returns are authorized without APP’s prior approval.
Buyer shall inspect the Products upon receipt. Buyer will be deemed to have accepted the Products unless it notifies APP in writing of any Nonconforming Products during the Rejection Period and furnishes such written evidence or other documentation as reasonably required by APP. “Nonconforming Products” means only the following: (i) product shipped is different than identified in the confirmed order; or (ii) product’s label or packaging incorrectly identifies its contents.
If Buyer timely notifies Seller of any Nonconforming Products, APP shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at 321 Palmer Road, Denville, NJ 07834. If Seller exercises its option to replace Nonconforming Products, APP shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products.
Buyer acknowledges and agrees that the remedies set forth in herein are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided hereunder, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement. The right to return defective Products, as described above, shall constitute the APP's sole liability and your exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Products, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise.
Custom Products are made specifically for the Buyer. If a Custom Order is commenced, the Buyer will need to pay for those products. No returns are available.
Returned items that receive a refund or an order that is prepared for shipment but not shipped due to credit or cancellation are subject to a restocking fee of 20%. The restocking fee would not apply to a return of a defective product or an item shipped in error by us.
Seller warrants that all of our products are free from manufacturer damage and defect. However, any return for material defects in material and workmanship must be made within ninety (90) days of receipt of the product.
EXCEPT FOR THIS WARRANTY SET FORTH HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
The Seller shall not be liable for a breach of the warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective.
The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller.
Subject to the above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller.
Limitation of Liability
APP (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, ALL OF WHICH ARE REFERRED TO HEREIN COLLECTIVELY AS “APP AFFILIATES”) SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF THE GOODS, DOWN TIME, LOST DATA, OR ANY DAMAGES OR SUMS PAID BY YOU TO THIRD PARTIES, EVEN IF APP OR ANY APP AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL APP OR ANY APP AFFILIATE BE LIABLE TO YOU OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS ACTUALLY DELIVERED TO AND PAID FOR BY YOU HEREUNDER. TO THE EXTENT CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER or $2,500, WHICHEVER IS LESS. This limitation of liability shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
Compliance with Law
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey.
Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey in each case located in Morris County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
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