1. Acceptance of Purchase Orders
All sales are subject to review and no sales are final until accepted by Apache Hose & Belting Company Inc. d/b/a Apache Inc. (”Apache”) at its headquarters in Cedar Rapids, Iowa. Prices on your Purchase Order (”PO”) may differ from our current selling prices. In the event prices listed on your PO are not accepted by Apache, the correct prices will be reflected on your PO and faxed back to you for your approval. To continue processing your order we must receive a return fax of the PO confirming the corrected pricing.
Prices are exclusive of all federal, state, or local taxes. The Buyer shall pay all taxes applicable to products purchased, or in lieu thereof. Buyer shall provide Apache with a tax exemption certificate acceptable to tax authorities for each state in which goods are to be shipped. Unless otherwise agreed upon and clearly stated on the quote or acknowledgment, prices do not include shipping costs.
Delivery dates shall be subject to and contingent upon timely receipt of PO by Apache, together with Buyer credit qualifications. Apache shall not be liable for failure to meet any promised delivery date due to credit qualification delays, force majeure, work stoppages, strikes, component unavailability, delays by component vendors, delay or default of common carrier or any unforeseeable event or circumstance.
4. Discrepancy / Failed Delivery Claims
The Buyer should file all claims for damage or shortages with the carrier handling the shipment. Claims stemming from discrepancies between invoice descriptions or quantities and actual product received by the Buyer due to an alleged error by Apache must be made in writing within thirty (30) days of invoice date. Any such claim not presented within that time limit will be waived and actual delivery of invoiced items and quantities shall be conclusively presumed.
5. Shipping and Handling
Shipping and handling charges will be calculated from Apache dock with freight prepaid and added (unless otherwise noted on the PO and agreed upon by Apache). Products are shipped FOB Apache dock and risk of loss due to damage or shortage or non-delivery due to carrier fault lies with the Buyer.
6. Limited Warranty
All merchandise manufactured or assembled by Apache is warranted at the time of shipment to conform to the quantity and type of merchandise described on Customer’s purchase order and be free from defects in material and manufacturing (provided such merchandise is properly installed and used only for the intended purpose and under normal service conditions). This warranty shall extend to only the original purchaser of the merchandise.
If a defect or nonconformity should occur, the sole obligation of Apache shall be either replacement, repair, or at the option of Apache, a refund of the purchase price, conditioned upon Apache’s receipt of written notice of the alleged defect or nonconformity within ten (10) days of customer’s receipt of the merchandise and prior to the merchandise having been changed from its original condition (except for reasonable inspection). No claims shall be effective if made after the merchandise has been used or otherwise converted or changed. Upon the expiration of the 10-day time period set forth above, customers shall be deemed to have accepted the merchandise. The final determination of whether merchandise is defective or nonconforming rests with Apache.
NO OTHER REPRESENTATIONS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY APACHE AND THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY APACHE AND WAIVED BY THE CUSTOMER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE
AS TO ANY CLAIM OF WHATEVER NATURE ASSERTED AGAINST APACHE THAT IS RELATED TO THE MERCHANDISE, THE REMEDIES OF THE CUSTOMER AND ALL OTHERS CLAIMING UNDER, WITH, OR THROUGH THE CUSTOMER ARE EXPRESSLY LIMITED TO THE FOLLOWING:
- THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE REPLACEMENT, REPAIR OR REFUND OF THE PURCHASE PRICE AS DESCRIBED ABOVE.
- THE LIMIT OF APACHE’S LIABILITY TO CUSTOMER OR OTHERS WITH RESPECT TO THE MERCHANDISE, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, WARRANTY, INFRINGEMENT, NEGLIGENCE, STRICT OR PRODUCT LIABILITY, FAILURE TO WARN, OTHER TORT OR OTHERWISE) SHALL BE THE PURCHASE PRICE OF THE SPECIFIC MERCHANDISE GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
- CUSTOMER AGREES THAT IN NO EVENT SHALL APACHE, ITS OFFICERS, MANAGERS, EMPLOYEES OR OWNERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR MANUFACTURING OR PROCESSING COSTS; LOST PROFITS OR GOODWILL; ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY AND/OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARE BASED UPON WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, AND EVEN IF APACHE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY CLAIM BY ANY THIRD PARTY.
- APACHE SHALL NOT BE LIABLE FOR AND CUSTOMER ASSUMES ALL RESPONSIBILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM THE HANDLING, POSSESSION OR USE OF THE MERCHANDISE.
This document is the exclusive source for defining the contract for the sale of goods from Apache to you. This contract incorporates by reference the description and quantity of goods contained in your purchase order, after Apache has accepted it. This contract incorporates by reference the prices for goods contained in our most recent price data or as written on your PO and accepted by us. This contract excludes all other documents, any other terms and conditions from your PO, and any conversations, negotiations, representations, or communications whether from us or any other party. If any part of this contract is found by any Court to be void or unenforceable, the remaining portions of the contract will continue to be valid and enforceable.
8. Consent to Iowa law and jurisdiction
If there is any legal dispute arising from this sale of goods, the matter will be governed by the laws of the State of Iowa. You agree that the U.S. or Iowa courts located in Linn County has exclusive jurisdiction over any disputes arising from the sale of goods herein.
You agree to hold harmless, defend and indemnify Apache from and against any and all claims by any third party (including without limitation your employees, customers, visitors, or agents) arising from the goods sold herein. This indemnity agreement is binding even if the third party claims that Apache was negligent or that its goods were defective.
10. Returned Material
In the event of Buyer ordering error, material may be returned for credit toward purchases of other Apache products less a twenty percent (20%) handling charge for restocking. Fabricated and Special order items ARE NOT RETURNABLE. No credit will be issued for return of goods older than sixty (60) days (from the date of shipment) or for products not returned in their original unopened factory package. A "Return Material Authorization" (RMA) number and package specific return-shipping instructions must be obtained from the Apache Customer Service Department before any material may be returned. Unauthorized returns may result in the product being refused and returned, or accepted with a twenty percent (20%) restocking fee or $100.00 transaction charge, whichever is greater. If product is not authorized for return with an Apache RMA and routed through an approved carrier, the supplier may be back charged for excess freight costs incurred plus a $150.00 Service Fee.
11. Change of Buyer's Name, Address or Reorganization
Buyer hereby agrees to notify Apache Credit Department in writing of any changes of name or address of any corporate reorganization or change of ownership, which may affect the information on your Credit Application.
12. Payment Terms
Payment terms are noted on each invoice. Accounts over 30 days past due may cause current orders to be put on credit hold, which is likely to create delivery delays. Delinquent accounts may be subject to an interest charge of 1.25% (or the maximum rate allowable by applicable law) per month. Delinquent account balances over 60 days past due are subject to being placed for collection and Buyer agrees to pay all expenses incurred, including collection fees, court costs and reasonable attorney's fees.
13. Alterations of Terms and Conditions
No alteration or waiver of the terms and conditions contained herein shall be effective unless authorized in writing and signed by a corporate officer of Apache. In the event Buyer submits a PO with terms that are in conflict with the Apache terms and conditions of sale, the terms and conditions of Apache shall prevail.
14. Term Buyer
As used in this contract, the term “you” shall be equivalent to “Buyer”. Additionally the term “your” shall be equivalent to “Buyer’s”.