AMERICAN PLASTIC SUPPLY LLC
STANDARD TERMS AND CONDITIONS OF SALE
Standard Terms and Conditions
YOU AGREE TO THE FOLLOWING STANDARD TERMS AND CONDITIONS GOVERNING YOUR PURCHASE OF THE PRODUCTS AND SERVICES DESIGNATED IN YOUR ORDER FORM WITH AMERICAN PLASTIC SUPPLY, LLC (“COMPANY”, “WE” OR “US” OR “COMPANY”). PLEASE SCROLL DOWN AND CAREFULLY READ ALL THE TERMS AND CONDITIONS CONTAINED HEREIN (THIS “AGREEMENT”). YOUR ORDER FORM WILL ONLY BE PERFORMED IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN. NO CONDITION STATED BY YOU IN ACCEPTING OR ACKNOWLEDGING THE ORDER FORM SHALL BE BINDING UPON US IF IT IS IN CONFLICT WITH, INCONSISTENT WITH, OR IN ADDITION TO, THESE TERMS AND CONDITIONS AND ALL SUCH CONFLICTING INCONSISTENT AND ADDITIONAL TERMS AND CONDITIONS ARE HEREBY
EXPRESSLY REJECTED. AS USED HEREIN, “YOU” MEANS THE CUSTOMER AND/OR ANY INDIVIDUAL OR COMPANY AS DEFINED UNDER THE ORDER FORM. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” OR “BUYER” SHALL REFER TO YOU AND/OR SUCH ENTITY. COMPANY AND CUSTOMER ARE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.” THIS AGREEMENT IS EFFECTIVE
WHEN THE ORDER FORM BETWEEN US IS ACCEPTED BY COMPANY, SUCH ACCEPTANCE TO BE EVIDENCED BY OUR ACKNOWLEDGMENT, SIGNATURE, OR BY OUR COMMENCEMENT OF PERFORMANCE. SHIPMENT OF ANY PART OF THE GOODS OR THE FURNISHING OF ANY PART OF THE SERVICES PROVIDED FOR IN THE ORDER FORM SHALL CONSTITUTE ACCEPTANCE OF THE ORDER FORM UPON THE TERMS THEREIN,
AND ANY SUCH ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. UNLESS OTHERWISE PROVIDED, THIS AGREEMENT ESTABLISHES THE TERMS AND CONDITIONS APPLICABLE TO SERVICES, PRODUCTS, AND GOODS THAT HAVE PURCHASED OR LICENSED THROUGH AN ORDER FROM BY US.
Specifications. All specifications, drawing, notes, instructions, notices and technical data referred to in the Order Form are incorporated herein by reference and all references in the Order Form to "provided for herein," "set forth herein" and the like shall be deemed to include such additional documents and data. Unless otherwise specified in the Order Form, all drawings, prints, samples, tests, and reports, if and as required, shall be supplied by you without charge. You hereby represent and warrant that You have all necessary rights for Us to perform the requested services and/or deliver the requested products, using such specifications, drawings, notes, instructions notices, technical data, or other documents. You shall indemnify and defend Us from any breach of this Section. Your indemnification obligation under this Section shall survive termination of the Order Form.
Electronic Transmission. Any Order Form may be executed in one or more counterparts, including electronic counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of an Order Form by electronic transmission (including email, facsimile, or online transmission) shall be equally as effective as delivery of a manually executed counterpart of an Order Form. Execution of an Order Form by electronic means shall be deemed to have the same legal effect as execution of a manual signature and delivery of a paper version of this document.
Warranties. To the maximum extent permitted by applicable law, the GOODS and services provided by company are provided on an AS-IS basis, and we expressly disclaim all other warranties, conditions or representations, express or implied, statutory or otherwise, regarding the goods or other services provided by us, including any implied warranties or conditions of merchantability, satisfactory or merchantable quality and fitness for a particular purpose, or those arising from a course of dealing or usage of trade.
Payment Terms. The prices and terms, including any discount terms, are as stated in Your Order Form with Us. If no terms are specified, the net amount shall be payable within thirty (30) days after the execution of the Order Form. On invoices returned for correction, the net amount will be payable within ten (10) days of Your receipt of the corrected invoice. Invoices not paid by the due date will have a 1.5 % per month late payment charge assessed against any unpaid balance from the due date of the invoice until the date of payment. We reserve the right to disallow any pricing discounts or hold any shipment during any period when outstanding invoices become or remain past due. Invoices paid in full within ten (10) days after the later of will, at Company’s discretion, result in either 1) a two percent (2%) discount, or 2) a two percent (2%) credit on Your next order.
Changes. Company may at any time, or from time to time, change or substitute materials. Such changes will be valid if they are of reasonably similar quality to the substituted goods or services. Customer may by written notice, request changes in drawings, specifications, descriptions, shipping instructions, quantities and/or delivery schedules. Acceptance of any such change must be in writing by the Company. If such acceptance results in an increase or decrease of the cost of, or time required for, performance of this Order Form, an equitable adjustment will be made by Company and evidenced by a written amendment to this Order Form.
Delivery Schedule. We shall make reasonable efforts to deliver Products in the quantity and at the time specified by the Customer in the Order Form. We may, from time to time, make changes in scheduled deliveries or may direct the temporary suspension thereof. These changes shall not constitute material changes to this Agreement or any Order Form.
Modification of Order Form. The Order Form, together with all written instructions issued hereunder and this Agreement, contain the complete and final agreement between You and Us, and no agreement or other understanding in any way purporting to modify the terms and conditions hereof shall be binding upon Us unless agreed to by Company in writing on or subsequent to the date of the applicable Order Form.
Delivery. We shall use commercially reasonable efforts to route shipments in accordance with Your written instructions. Any transportation charges We pay with respect to which We are entitled to reimbursement shall be added to Your invoice as a separate item and the receipted freight bill shall be attached thereto. Unless the Order Form expressly states otherwise, all goods shall be shipped FOB Our shipping point. You are responsible for, and assume all risk of loss or damage to, goods or products purchased on an Order Form with us, from any cause, upon and after delivery by Company to a carrier at Company’s shipping point.
Inspection. Acceptance or rejection of goods, under an Order Form shall be made promptly after delivery, except as otherwise provided otherwise in that Order Form. Failure to reject items within ten (10) days shall constitute acceptance of said goods.
Taxes. Prices for goods specified herein are exclusive of all city, state and federal taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. You agree to pay such taxes directly or to reimburse Us for all such taxes, whether imposed on You, required to be collected by Us, or imposed on goods or on Us in connection with this Order Form. Wherever applicable, such tax or taxes shall be added to the invoice as a separate charge or invoiced separately.
Relationship. Customer and Company are independent contractors of one another. Nothing herein shall be deemed to create any relationship of agency, partnership or joint venture between the Customer and Company.
Indemnification. You shall indemnify, defend, and hold harmless Company and its subsidiaries, affiliates, officers, directors, shareholders, agents, employees, successors, and assigns (collectively, "Company Indemnified Parties") from and against any and all costs, losses, damages, liabilities, expenses, penalties, and fines, including reasonable attorneys' fees and related costs (collectively, "Losses"), to the extent arising out of or resulting from: any violation of this Agreement or the Order Form by You; any misuse or negligent use of the services or products ordered under this Agreement or the Order Form by You; or any negligent act, omission, willful misconduct, or fraud by You or your agents in connection with this Agreement or the Order Form.
Assignment. This order or any part thereof shall not be assigned, or performance hereunder delegated, or sublet without first obtaining Our written approval.
Governing Law. The Order Form and this Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Florida.
Limitation of Liability. Company's liability to the Customer or any other third party, for a claim of any kind arising as a result of, or related to the goods or services provided hereunder, whether in contract, in tort (including negligence or strict liability), under any warranty, or otherwise, shall be limited to monetary damages and the aggregate amount thereof for all claims shall in no event exceed an amount equal to the amount paid or payable by the Customer to the Company under the Order Form giving rise to such liability. Under no circumstances shall Company by liable to the Customer or any third party for indirect, special or consequential damages (including lost profits), even if Company has been advised of the possibility of such damages, or for warranties granted by the Customer to any third party. The Customer acknowledges and agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
Intellectual Property. This Agreement and any Order Form executed with Company is not a work-for-hire agreement. The copyright in all deliverables created hereunder and/or any Order Form for Customer shall belong to Company. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the services under this Agreement and any Order Form are and shall remain the sole and absolute property of Company, subject to a worldwide, non-exclusive license to Your internal use and any other use contemplated by this Agreement, and Company retains all moral rights therein.
Contingencies. Company reserves the right, at its option, either to suspend shipments or materials covered by an Order Form or to cancel an Order Form, in whole or in part, at any time where such suspension or cancellation is caused by, or reasonably results from United States Government orders or requirements, embargos, acts, regulations, directives of any civil or military authorities, acts of the public enemy, inability to secure transportation facilities, strikes, differences with workmen, accidents at Company's work or other contingencies, whether similar or dissimilar, to the foregoing enumerates, beyond the Company's reasonable control.
Amendment. Amendment. From time to time and in Our sole discretion, Company may change or modify the terms of this Agreement by providing You notice on your next Order Form informing you of such changes or modifications. Company may also provide such notice through posting a notice on our websites or web portals, or by sending You a notice through another appropriate means of electronic communication (e.g. email). Such changes or modifications will take effect on the date set forth in the notice and Your execution of any Order Form bearing our updated terms will constitute Your acceptance of the modified Agreement.
Arbitration. Any and all disputes, controversies or claims (each a “Dispute”) arising out of, relating to or in connection with the Agreement, including, without limitation, any dispute regarding its arbitrability, validity or termination, or the performance or breach thereof, shall be exclusively and finally settled by arbitration under Florida law administered by the American Arbitration Association (“AAA”). Any party may initiate arbitration by notice to the other party (a “Request for Arbitration”). The arbitration shall be conducted on a confidential basis in accordance with the AAA rules governing commercial arbitration (the “Rules”) in effect at the time of the arbitration, except as they may be modified by the provisions of this Agreement. The place of the arbitration shall be Pinellas County, Florida. The language of the arbitration shall be English. Any decision or award as a result of any such arbitration proceeding shall be in writing, shall provide an explanation for all conclusions of law and fact, and shall include an assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator with at least ten (10) years of experience practicing law and experience with commercial disputes. Judgment upon an arbitration award may be entered in any court of competent jurisdiction.