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ACCEPTANCE. Any Buyer’s purchase order is subject to approval and acceptance by an authorized representative of APEX at the servicing branch or the general office in Waltham, Massachusetts, and subject to the terms set forth herein. APEX expressly limits its acceptance to these terms. Additional or different terms in Buyer’s purchase order shall not be binding on APEX, and are hereby expressly rejected. Buyer agrees to inspect the products within seventy-two (72) hours after receipt of the products, and Buyer agrees to promptly notify APEX of any readily-apparent defects or nonconformities. Buyer waives any right to object to such defects or nonconformities later than seventy-two (72) hours after receipt of products.

ASSIGNMENT. Buyer may not assign this Agreement without prior written consent of APEX.

WAIVER. Waiver of any breach of this Agreement shall not be construed as a waiver of any other breach.

MODIFICATIONS. Unless Buyer and APEX have specifically executed a supply agreement for the purchase and sale of products, there are no terms, conditions, understandings, or agreements between Buyer and APEX other than those stated herein and all prior proposals and negotiations are merged herein. No terms and conditions in any way altering or modifying the provisions hereof shall be binding upon either party unless in writing and signed by an authorized representative of such party. No modification or alteration of the provisions hereof shall result from APEX’s shipment of material following receipt of Buyer’s purchase order, shipping order, or other forms containing provisions, terms and conditions in addition to or in conflict or inconsistent with the provisions hereof.

SPECIFICATIONS. Specifications and instructions are in accordance with directions of Buyer and full responsibility for their correctness is assumed by Buyer.

PRICING. All prices are F.O.B. shipping point unless otherwise specified. Product dimensions and/or quantities are subject to change. Quoted prices are subject to addition for federal, state, or local taxes and subject to change if products are not shipped within 10 days. Otherwise, prices in effect at time of shipment will prevail. It is the obligation of Buyer to provide evidence of sales tax exemption to APEX. Notwithstanding the foregoing, in the event that sales tax is determined to be due upon any purchase, Buyer will pay the amount of such tax to APEX for payment to the appropriate taxing authorities.

TAXES. Prices do not include any present or future sales, use, excise, or similar taxes. All such taxes shall be for Buyer’s account.

COPY OF BUYER’S LICENSE. Buyer agrees to furnish to APEX a copy of any state license that would cause purchases by Buyer to be free of sales tax. Further, Buyer shall continually furnish copies of such licenses from year to year, as the same are renewed.

CANCELLATION. No order may be canceled or changed in whole or in part without the prior written consent of APEX. Shipment of products cannot be extended beyond the original shipping date specified without APEX’s written consent.

PAYMENT. For Buyer’s with established credit, terms are net thirty (30) days from date of shipment. If credit is not established, please include payment with order or purchase by cash or check through Visa, MasterCard, or American Express. Cash or anticipation discounts are not allowed. All payment must be in U.S. dollars. APEX shall have the right of set-off and deduction for any sums owed. If Buyer fails to make payment within thirty (30) days, APEX may defer shipments until such payment is made, or may, at its option, cancel all or any part of unshipped order.

Should the financial responsibility of Buyer at any time become unsatisfactory to APEX, APEX shall have the right to require payment for any shipment hereunder in advance or, in the alternative, the provision of satisfactory security. If Buyer fails to make payment in accordance with the terms of this agreement or fails to comply with any provision hereof, APEX may at its option, in addition to any other remedies, cancel any unshipped portion of any order and other pending orders. Buyers shall remain liable for all unpaid accounts. In the event Buyer fails to make payment in accordance with term of the Agreement, the account shall be deemed to be delinquent and a late charge of one and one-half percent (1 1/2%) per month will be assessed on the unpaid balance. Buyer agrees to pay all collection costs and expenses, including reasonable attorney’s fees, incurred by APEX in collection or attempting to collect such account.

Apex Industrial Automation (APEX). In the event Buyer owes any past due indebtedness to APEX, or any other operating unit (including all divisions or subsidiaries) of Apex Industrial Automation, then any amount(s) that such operating unit owes to Buyer may be offset against such indebtedness and Apex Industrial Automation, shall be obliged to pay to Buyer only the net amount after application of such setoff.

MISCELLANEOUS CREDITS. APEX may apply any miscellaneous credits to the account of the Buyer, including the off-set of any unpaid invoices, late charges or other amounts due to APEX. Any miscellaneous credits remaining unapplied for (1) year, may, at the discretion of APEX, be turned over to the appropriate state agency responsible for unclaimed property.

WARRANTIES. APEX warrants that for a period of ninety (90) days from the date of the invoice or the delivery of the products or services, whichever is sooner, the products and/or services covered hereby conform to the description and specifications accepted by APEX with respect to the products and/or services, if any; provided, however, product dimension and/or quantities are subject to change. All other warranties are excluded, whether express or implied, by operation of law or otherwise, including but not limited to all implied warranties of merchantability or fitness for a particular purpose.

APEX shall not be liable for incidental or consequential damages directly or indirectly arising or resulting from the breach of any of the terms hereof or from the sale, handling or use of the products sold or services rendered. APEX’s liability hereunder, for breach of warranty, negligence or otherwise, is expressly limited at the option of APEX: (A) to the replacement at the agreed point of delivery of any products found to be defective or not to conform to the specifications set forth herein, (b) to the repair of such products, or (c) to the refund or crediting to Buyer of the price of such products.

APEX is a distributor, and not a manufacturer of products. Accordingly, any warranty of quality, merchantability, or fitness for a particular purpose is that of the manufacturer only and NOT that of APEX. APEX agrees to use commercially reasonable efforts to cause its manufacturer to furnish products that will be free from defect in material and workmanship, will be free from patent infringement, and will be merchantable. Should the product fail to meet any manufacturer’s warranty, then upon notification thereof and substantiation that the product has been stored, installed, maintained, and operated in accordance with manufacturer’s recommendations and standard industry practice, APEX shall assist Buyer in obtaining suitable repair or replacement, or other remedy, as provided in the applicable manufacturer’s warranty.

RETURN GOODS POLICY. No products will be accepted for return without an APEX approved Return Material Authorization (“RMA”). All returns are subject to a restocking charge. SPECIAL ORDERED OR MODIFIED PRODUCTS ARE NOT RETURNABLE.

DELIVERY TERMS. Delivery dates are approximate and are based upon prompt receipt of all necessary information from Buyer. Unless otherwise agreed in writing by APEX, delivery will be made and title will pass to Buyer F.O.B. point of shipment. Expense and risk of loss of transporting the goods shall pass to Buyer at point of shipment.

CLAIMS. Claims for errors, shortages or defective goods must be made within (10) days after receipt of material.

DELIVERY IN INSTALLMENTS. APEX reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of the obligations to accept and pay for remaining deliveries.

FREIGHT AND HANDLING. Unless otherwise provided in writing, freight charges on all shipments, and spotting, switching, demurrage, or drayage at destination are to be paid to Buyer. All incoming shipping and handling charges on all material on which the supplier of said material does not pre-pay or allow freight into APEX’s warehouse, and all outgoing shipping and handling charges on all shipments from APEX to Buyer shall be borne by Buyer. Any difference in the amount of freight from that shown on the invoice as being included is for Buyer’s account. APEX servers the right to designate origin and intermediate carriers. If a specific delivering carrier is required, Buyer must designate such carrier in writing to APEX prior to shipment.

Shipping and handling are calculated as a percentage of the total price of the items ordered. The minimum shipping and handling charge is $10. If your billing and physical shipping addresses are identical, small packages may ship via Priority U.S. Postal Service. Otherwise, all shipments are made via UPS Ground. No orders are shipped outside the contiguous, continental U.S.

Shipping charges for items requiring motor freight will be based on the weight and destination. Please email sales@apexindustrialautomation.com for a freight quote. Motor freight is used for items that are oversized or exceed a weight limit with UPS.

DELAY. APEX shall not be liable for any failure or delay in manufacture, shipment or delivery of products resulting from any cause beyond APEX’s control, including, but not limited to, provisions of law or Governmental regulations, accident, explosion, fire, windstorm, flood or other casualty, strike, lockout, or other labor difficulty, riot, war, terrorist acts, insurrection, shortage of or inability to secure labor, raw materials, production or transportation facilities. Shipping dates are approximate and are based on conditions at the time of quotation. APEX shall not be liable for failure or delay in performance due to prior sale of products. In the event of such delay, there will be no termination and the date of delivery shall be extended for a period equal to the time lost by reason of the delay.

COMPLIANCE WITH LAWS. APEX warrants that is has complied, and will continue during the performance of this order to comply, with the provisions of all applicable federal, state and local laws and regulations from which liability may accrue to Buyer as a result of any violation thereof by APEX. APEX warrants compliance with the Fair Labor Standards Act and the Equal Employment Opportunity Act, as amended, in its performance. Compliance with any federal, state, or local procurement regulations, laws, or contract provisions in any form of Government contracting by Buyer, shall be solely the responsibility of the Buyer.

FABRICATION. In the event that the sales involves the fabrication of any products by APEX, including without limitation, hose or fluid power products, the specification for such fabrication shall be the sole responsibility of the Buyer.

NUCLEAR OR OTHER HAZARDOUS ACTIVITIES. Unless specifically acknowledged and agreed in writing by a duly authorized officer of APEX, products sold hereunder may not be used in connection with any nuclear facility or any other hazardous activity, including without limitation, military, aerospace, missile or other critical application. Buyer agrees to indemnify and hold APEX harmless from any liability that results from Buyer’s use that is inconsistent with this paragraph.

ENVIRONMENT AND SAFETY. Material Safety Data Sheets (MSDS). APEX provides MSDS that are prepared by its manufacturers. MSDS are not prepared by APEX. Current MSDS will be provided to Buyer in connection with a purchase of a product when required by law or regulation.

MSDS for applicable products sold by APEX are available at  info@apexindustrialautomation.com.Unless requested, APEX will not furnish paper copies of MSDS that are electronically available at  info@apexindustrialautomation.com.APEX will continue to furnish paper copies of MSDS for those products for which an MSDS is not electronically available. Paper copies of MSDS for all products are immediately available upon demand via facsimile or U.S. mail. Please contact your local APEX branch to obtain a copy of any MSDS via facsimile or U.S. mail or to continue receiving paper copies of MSDS for all shipments of applicable products.

Dangerous Goods/Hazardous Materials. Certain types of products may contain volatile organic compounds, ozone depleting substances, mercury, or other chemicals subject to restrictions by state and/or federal law and regulation. APEX does not guarantee that any product is in compliance with such restrictive state and/or federal law and regulation, and assumes no responsibility for how products containing such restricted substances shall be used, installed, or resold by Buyer. Buyer assumes sole responsibility for compliance with all applicable state and/or federal law and regulation concerning such affected products. APEX will cooperate with Buyer with respect to the handling, shipping, or other disposition of affected products.

Shipping. In addition to the delivery terms and the freight and handling paragraphs above, the Buyer acknowledges that hazardous materials require special handling, labeling, and packaging. Carrier surcharges may also apply. Buyer agrees to pay for all shipping, handling, labeling, and packaging charges associated with the shipping of hazardous materials. APEX is not responsible for, nor is it to be considered the “offeror” for, any further shipment or transshipment made by or on behalf of Buyer by any mode of transportation. Buyer assumes full responsibility for compliance with all state and/or federal rules and regulation governing the product’s further transportation by ground, air, or water in domestic and/or international commerce.

PRODUCTS SOLD FOR BUYER’S EXPORT. Buyer assumes responsibility and liability for compliance with all U.S. and international laws, treaties and customs rules and regulations applicable to the export of products by Buyer.

ELECTRONIC COMMERCE. APEX and Buyer specifically agree that purchases and sales between them may be conducted electronically and in accordance with the Illinois Uniform Electronic Transactions Act (UETA).

VENUE; GOVERNING LAW. The Buyer specifically acknowledges and agrees that jurisdiction and venue for any actions brought by either party shall be exclusively in the Commonwealth of Illinois. The parties further agree that the law of the Commonwealth of Illinois shall apply. The provisions of the United Nations Convention on Contracts for the International Sales of Goods shall not apply.