Terms and Conditions of Sale

    1. ENTIRETY. These Terms and Conditions of Sale and all documents referenced herein (collectively, the “Terms”) are the only terms and conditions which govern the sale of goods (“Goods”) by AP Emissions Technologies, LLC d/b/a AP Exhaust and d/b/a AP Emissions,  (“Seller”) to the buyer (“Buyer”) and supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Acceptance is expressly limited to these Terms. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or form submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Goods shall constitute acceptance of these Terms. Any conflict between terms on the face of Seller’s sales quote or invoice and these Terms shall be governed by the terms on the face of the sales quote or invoice.   
    2. PRICES. Unless specified on the face of Seller’s quote or invoice, prices are in U.S. Dollars and based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability. 
    3. TAXES. Prices do not include any sales, use, excise, privilege, ad valorem, or other taxes, duties, tariffs or assessments now or hereafter imposed or levied (“Taxes”) by or under the authority of any foreign, federal, state, provincial, or local law, rule, or regulation (collectively, “Law”) concerning the Goods or the manufacture or sale thereof. If Seller pays any such Taxes, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
    4. TERMS OF PAYMENT. All payments are due within thirty (30) days from date of invoice. Orders are subject to acceptance in writing by Seller. All payments shall be made without abatement, deduction, discount or setoff. Late payments are subject to a service charge of the lesser of 1.5% per month or the highest rate permitted under applicable Law. Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. As collateral security for the payment of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all right, title and interest of Buyer in the Goods, 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). This security interest constitutes a purchase money security interest under the UCC. Upon demand, Buyer shall pay all costs and expenses with respect to the administration and enforcement of the foregoing security interest. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on the terms of payment, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer.
    5. DELIVERY. Delivery shall be made FOB (Incoterms 2020) Seller’s facility and title and risk of loss passes to Buyer at such time. Delivery/performance dates are estimates only. Seller shall not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damage shall be made solely against the carrier. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods 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.
    6. INSPECTION. Buyer shall inspect the Goods upon receipt, and Buyer shall immediately notify Seller in writing of any claims that the Goods are different than identified in Buyer’s purchase order whereupon Seller shall determine the remedy pursuant to Section 11. Failure to give such written notice upon receipt will constitute irrevocable acceptance by Buyer of all Goods. 
    7. CHANGES OR CANCELLATION. Changes in specifications or designs to any Goods, changes in delivery or performance schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by the Buyer. Once ordered, deliverables that are made to order, discontinued or custom products (“Special Order Goods”) may not be cancelled by Buyer.  Once a PO has been acknowledged or accepted by Seller, stock orders cannot be cancelled.  Seller reserves the right to cancel any purchase orders or releases thereunder, or terminate any agreement relating to purchase of Seller’s Goods, upon 10 days’ notice to Buyer.
    8. RETURNS. Goods may not be returned without prior written authorization of Seller and compliance with Seller’s return policies and procedures then in effect. 
    9. STORAGE. In the absence of agreed shipping or delivery dates, Seller may invoice Buyer and ship the Goods once they are ready for shipment. If, because of Buyer’s inability to take delivery on the designated delivery date, the Goods are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense and risk and risk of loss shall pass to Buyer when the Goods are placed in storage and such date shall constitute the date of shipment for purposes of beginning the warranty and payment periods.
    10. INSURANCE. Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2 million per occurrence, $2 million products-completed operations aggregate and $2 million general aggregate with insurance carriers having an AM Best rating of “A- VIII” or better. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in Buyer’s insurance policy. Except where prohibited by law, Buyer shall waive, and shall require its insurer to waive, all rights of subrogation against Seller’s insurers and Seller.
    11. LIMITED WARRANTIES. Seller makes the following express warranties solely to the original Buyer of the Goods: (a) Exhaust Systems Products:  LIMITED WARRANTY: Seller warrants solely to the original Buyer that all mufflers, exhaust pipes and other accessories that do not contain a catalytic converter are free from out-of-box material and manufacturing defects. (b) Federal/EPA Converter Warranty: LIMITED WARRANTY: Catalytic converter is warranted to be free from defects in materials and workmanship subject to the exclusion and conditions set forth below and subject to the duration limits in this paragraph. This catalytic converter has been designed and manufactured and is warranted to meet federal Environmental Protection Agency emission requirements for 5 years or 50,000 miles, whichever comes first. At the conclusion of the 5 year/50,000 mile period, all liability under this limited warranty shall terminate. (c) For catalytic converters sold to Buyers in California, CARB Converter Warranty: LIMITED WARRANTY: Catalytic converter is warranted to be free from defects in materials and workmanship subject to the exclusion and conditions set forth below and subject to the duration limits in this paragraph. This catalytic converter has been designed and manufactured and is warranted to meet federal California Air Resources Board emission requirements for 50,000 miles. The stainless-steel body and the nipples alone are warranted for 5 years or 50,000 miles, whichever comes first. At the conclusion of the 5 year/50,000 mile or 50,000 mile period, whichever is applicable, all liability under this limited warranty shall terminate. (d) DuraFit DPF & DOC: LIMITED WARRANTY: DuraFit Diesel Particulate Filers and Diesel Oxidation Catalyst are warranted to be free from defects in materials and workmanship for 3-years/unlimited mileage. At the conclusion of the 3-year period, all liability under this limited warranty shall terminate. THESE ARE SELLER’S ONLY WARRANTIES. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES FOR OR CONCERNING BUYER PROVIDED SPECIFICATIONS, SPECIAL REQUESTS, MODIFICATIONS, ALTERATIONS, OR OTHER DEVIATIONS FROM SELLER’S STANDARD DESIGNS. If during the warranty period, Buyer notifies Seller in writing that the Goods are not in conformity with the warranty and Seller agrees, after Seller’s inspection (at its option), then Seller will repair, replace or refund the total amount received by Seller therefor, at Seller’s sole option, provided Buyer returns such Goods to Seller’s plant for inspection. These shall be Buyer’s exclusive remedies for Seller’s liability. Any claims not made during the warranty period are deemed waived. Seller’s warranty does not attach to Goods or parts not manufactured by Seller. If the Goods are subject to any of the following without the prior written consent of Seller, this warranty shall be void: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications including any installation on commercial vehicles or race vehicles; (iv) operating conditions or applications above the rated capacity of the Goods; (v) repairs or modifications made to all or part of the Goods without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions. If Buyer has accepted a price reduction on the Goods in exchange for accepting responsibility for warranty obligations related to the Goods (“in-lieu program”), then (x) to the extent permitted by law, Seller hereby disclaims all warranties related to such Goods, including disclaiming the warranties described in (a) – (d) above, (y) Buyer shall offer to its direct and indirect customers and end-users the limited warranties described in (a) – (d) above, and will fulfill the obligations of such warranties, and (z) Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, agents, representatives, and employees harmless from and against all Losses (defined below) arising out of or relating to any warranty claims brought by any person or entity relating to such Goods.  
    12. LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE RECEIVED BY SELLER FOR THE DELIVERABLES WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.  Any contract created between Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer, and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract.
    13. INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, representatives, agents and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of or relating to: (a) Buyer’s or its agents provided specifications, design, structure, operation, material or method of making Goods (“Buyer’s Specifications”), including without limitation, any resulting violation of intellectual property or proprietary rights; (b) Buyer’s use, misuse or disposal of Goods or materials; (c) Buyer’s non-compliance with any Law; (d) breach of these Terms by Buyer; and (e) Goods subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications, including any installation on commercial vehicles or race vehicles; (iv) operating conditions or applications above the rated capacity of the Goods; (v) repairs or modifications made to all or part of the Goods without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions.
    14. PATENTS. Provided Buyer has made all payments due Seller, Seller shall defend any suit brought against Buyer based upon a claim that the Goods infringe any United States patent issued as of the date of Seller’s quotation and shall pay any damages and costs finally awarded therein against Buyer, provided that Seller is notified promptly in writing of such suit and is given full authority, information and assistance by Buyer to defend or settle the suit. Notwithstanding anything to the contrary, Seller will have no liability to the extent that the suit is based upon: (i) modifications to any item made by or on behalf of the Buyer in a manner that causes the infringement; (ii) use of any item in combination with the Goods that causes the infringement; (iii) the failure of the Buyer to use corrections or enhancements to the Goods that are made available by Seller; (iv) Buyer’s Specifications; (v) Buyer’s distribution, marketing or use for the benefit of third parties of the Goods; or (vi) use not authorized under these Terms. If the Goods or any part thereof are deemed to infringe any such patent, Seller shall, at its expense and sole option either: (a) procure for Buyer the right to continue using said Goods or part; (b) replace them with non-infringing Goods or parts; (c) modify them so they become non-infringing; or (d) remove them and refund the purchase price for them depreciated over no more than 3 years.
    15. TOOLING. In no event shall Buyer have any interest in any tools, jigs, dies, patterns, etc. (collectively, “Tooling”) which is made or obtained for the production of the Goods. Such Tooling shall remain the property of Seller.
    16. CONFIDENTIALITY. All non-public or proprietary information of Seller, including all IP, quotations and pricing information, is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized by Seller in writing. 
    17. INTELLECTUAL PROPERTY. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other information or intellectual property disclosed or otherwise provided to Buyer by Seller and all rights therein (collectively, “IP”) are and will remain the property of Seller. Buyer shall have no claim to, nor ownership interest in, any IP and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any IP, other than the limited right to use the Goods purchased from Seller. 
    18. EXPORT COMPLIANCE. Buyer shall comply with all applicable import, export and sanctions laws of the United States and other countries and jurisdictions while conducting activities under this Agreement and will not engage in any activities or transactions that would violate or cause Seller to violate such laws.  Any items provided by Seller are authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s), all as herein identified. 
    19. FORCE MAJEURE. Seller shall not be liable for any delay in or failure to perform due to any event or contingency beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, cybersecurity events, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials, including those material increases in costs resulting from the imposition of tariffs. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Goods among itself and its purchasers in such manner as Seller, in its sole judgement, deems fair and equitable.
    20. TERMINATION. Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (i) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (ii) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (iii) Buyer executes an assignment for benefit or creditors; (iv) a receiver is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance within 10 days after written request therefor by Seller. In all cases, Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.
    21. WAIVER. All waivers by Seller shall be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
    22. GOVERNING LAW. Any dispute arising out of or related to these Terms will be governed by and construed in accordance with the laws of the State of Illinois without regard to any rules on conflicts of laws and exclusively litigated in either (i) a state or federal court located in Cook County, Illinois, or (ii) a state or federal court located in the state of Seller’s principal place of business, at Seller’s sole discretion.
    23. SEVERABILITY. The unenforceability or invalidity of any clause in these Terms shall not have an impact on the enforceability or validity any other clause in these Terms. Any unenforceable or invalid clause shall be regarded as removed from these Terms to the extent of its unenforceability and invalidity.
    24. RELATIONSHIP OF 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.
    25. MISCELLANEOUS. Buyer shall not assign any of its rights or obligations under these Terms or any purchase order without Seller’s prior written consent. Buyer shall comply with all applicable laws. There are no third-party beneficiaries. Provisions which by their nature should survive will remain in force after any termination or expiration of any sale of Goods. The section headings are included solely for the convenience of the parties.