ALLWAYS PRECISION, LLC

STANDARD TERMS AND CONDITIONS OF SALE

1. APPLICABILITY.

• These terms and conditions of sale (these “Terms”) are the only terms and conditions which govern the sale of Products by Allways Precision, LLC, an Illinois limited liability company (“APL”) to the buyer (“Buyer”). As used in these Terms, “Product” individually means, and “Products” collectively mean, all goods sold or to be sold by APL to Buyer, whether machines, equipment, parts, finished goods, materials, products to be designed, products to be manufactured, products to be remanufactured, products to be refurbished, and/or products to be installed, services to be rendered, or any combination thereof. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Products hereby, the terms and conditions of said written contract shall prevail to the extent they are inconsistent with these Terms. In the event any conflict or inconsistency arises between any document comprising this Agreement, the inconsistency will be resolved by giving precedence in the following order: (1) Quotation; (2) these Terms; and (3) a Sales Document (as defined below).

 

• Any written quotation issued by APL to Buyer (a “Quotation”), invoice, or other sales document issued by APL to Buyer relating to the Products (collectively, “Sales Documents,” and together with these Terms, collectively, this “Agreement”) comprise the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations, agreements or communications, whether written or made orally. This Agreement shall prevail over any of Buyer’s general terms and conditions of purchase, regardless of whether or when Buyer has submitted its order or such terms. APL’s agreement to sell Products to Buyer is expressly conditioned on Buyer’s unqualified acceptance of this Agreement. If for any reason this Agreement or any Sales Document is deemed to be an acceptance of a prior offer made by Buyer, such acceptance is expressly conditioned on Buyer’s assent to only the terms and conditions contained in this Agreement. Fulfillment of Buyer’s Purchase Orders does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.

 

2. ORDERING PROCEDURE. Buyer’s orders (each a “Purchase Order”) shall be submitted to APL in written or electronic form via facsimile, e-mail, US mail or other method acceptable to APL. APL has the right, in its sole discretion, to accept or reject any Purchase Order. APL may accept a Purchase Order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering such Products, whichever occurs first. No Purchase Order is binding on APL unless accepted by APL as provided in this Agreement. Buyer may not cancel or suspend any Purchase Order for Products submitted to APL without APL’s prior written authorization.

 

3. PRICE, TAXES, AND PAYMENT.

• Prices. All prices for Products are stated and payable in U.S. dollars. The price for Products shall be APL’s price in effect as of the date that APL accepts Buyer’s Purchase Order, unless APL has quoted a different or separate Price for the Products in a Quotation. Each Quotation shall remain open for the time period stated therein or, if no time period is stated in the Quotation, for a period of thirty (30) days from the date of the Quotation; provided, however, that APL shall have the right to adjust the price of any Product listed in a Quotation prior to acceptance of a Purchase Order.

 

• Taxes. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer (collectively, “Taxes”). Taxes shall be in addition to the prices charged by APL. Buyer shall be responsible for all such charges, costs, and Taxes; provided, however, Buyer shall not be responsible for any Taxes imposed on, or with respect to, APL’s income, revenues, gross receipts, personnel, or real or personal property or other assets. To the extent that Buyer is exempt from any Tax, an applicable exemption certificate must accompany any Purchase Order to which such exemption applies.

 

• Payment. Unless otherwise agreed to in writing by APL, Buyer shall pay each invoice, without deduction or setoff, by the due date specified or in accordance with the payment schedule stated in APL’s Quotation. Buyer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other rights and remedies available under this Agreement, at law, in equity or otherwise (which APL does not waive by the exercise of any rights hereunder), APL 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 ten (10) days following written notice thereof. In the event Buyer is in default of any term or condition of this Agreement, APL may, at its option, elect to: (i) defer or suspend further shipments of Products until Buyer reestablishes satisfactory credit; (ii) cancel the unshipped or unperformed portion of any Purchase Order and invoice Buyer for incurred costs and reasonable profit without any liability for APL’s failure to ship or provide the Products; (iii) make shipment of the Products to Buyer on a C.O.D. or cash in advance basis; or (iv) pursue any other right or remedy available under this Agreement, at law, in equity or otherwise.

 

• Letter of Credit. When required by APL, in its sole discretion, Buyer shall make all payments required under this Agreement pursuant to an irrevocable and confirmed letter of credit (“LOC”). The LOC shall be issued by a United States bank acceptable to APL and in favor of APL in the amount of one hundred percent (100%) of the purchase price for the Products, payable at sight against bills of lading presented to the issuing bank evidencing shipment of the Products. The LOC is to be issued as soon as reasonably practicable after APL accepts any applicable Purchase Order(s), but in no event later than thirty (30) days from such date. The LOC shall be valid until one hundred percent (100%) of the Product purchase price is paid to APL. Buyer acknowledges and agrees that, when an LOC is required by APL, APL shall have no obligation to commence performance of the applicable Purchase Order(s) until the LOC has been issued in accordance with this Section 3(d). Any milestones or due dates set forth in a Sales Document relating to APL’s performance of any accepted Purchase Order(s) may be adjusted by APL to account for any delay in the issuance of an LOC.

 

4. DELIVERY. Unless otherwise stated in a Sales Document, the Products will be delivered within a reasonable time after the receipt of Buyer’s Purchase Order, subject to the availability of raw materials, parts, and finished Products. APL shall not be liable for any delays, loss, or damage in transit. All deliveries shall be EXW (Ex Works as defined under Incoterms 2022) point of origin, which shall be APL’s facility. APL 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 quantities shipped, whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order. Title to and all risk of loss or damage to the Products (excluding software, which is subject to the license provision stated in Section 16(c) below) shall pass to Buyer upon delivery of the Products to the carrier for shipment. Regardless of whether Buyer or APL makes the arrangements for shipment of Products, Buyer shall be responsible for all costs and expenses associated therewith, including, but not limited to freight charges, customs, duties, VAT and other related taxes, customs clearance and brokerage fees, and delivery charges to the final destination. In the event APL pays the carrier for any shipping costs or expenses as an administrative convenience to Buyer, APL shall have the right to add such shipping costs and expenses to APL’s invoices. Notwithstanding anything in this Agreement to the contrary, any timeframe provided by APL is a good faith estimate of the expected delivery date and/or installation for the Products. APL will use reasonable efforts to fill Buyer’s Purchase Orders within the time stated therein or in a Sales Document but in no event shall APL be liable for any damages or losses associated with APL’s inability or failure to meet any such timeframes or deadlines. Further, in the event Buyer delays the delivery of the Products beyond a time period fifteen (15) days after APL notifies Buyer that the Products are available to Buyer or the carrier for delivery (the “Holding Period”), APL reserves the right to charge the Buyer a reasonable holding fee to cover APL’s costs of storage and handling of the delayed Products to be delivered (the “Holding Fee”). The Holding Fee shall be payable by the Buyer within ten (10) days of APL’s invoice. During the Holding Period, Buyer shall have all risk and loss of damage with respect to such Products. Buyer shall pay interest on all late payments for Holding Fees at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.

 

5. SECURITY INTEREST. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to APL a purchase money security interest and lien on all of the rights, title, and interests 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. APL may file one or more financing statements pursuant to the Uniform Commercial Code in a form satisfactory to APL to evidence and perfect APL’s security interest in the Products. In the event Buyer is in default under this Agreement, APL shall have the remedies of a secured party under applicable law, including without limitation the Illinois Uniform Commercial Code and the rights under the Software license granted in Section 16(c).

 

6. QUANTITY. If APL delivers to Buyer a quantity of Products of up to ten percent (10%) more or less than the quantity set forth in an accepted Purchase Order, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products at the price set forth in the Sales Documents, adjusted on a pro-rata basis.

 

7. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS. Unless otherwise stated in a Sales Document, Buyer shall inspect each shipment of Products within ten (10) days following receipt (the “Inspection Period”). Buyer shall be deemed to have accepted such Products unless it notifies APL in writing of any Nonconforming Products during the Inspection Period and furnishes such evidence and documentation reasonably required by APL. Buyer’s written notice of rejection shall state, in reasonable detail, all reasons for rejection. If requested by APL, Buyer shall provide a representative sample of the Products which Buyer contends are Nonconforming Products. As used in these Terms, “Nonconforming Products” means only the following: (a) the Product shipped is different than identified in the written Quotation; or (b) subject to Section 6 above, the quantity of Products exceeds the amount ordered by Buyer pursuant to the applicable Purchase Order. If APL determines that such Products are Nonconforming Products, APL shall, in its sole discretion, either (i) replace such Nonconforming Products with conforming Products, or (ii) refund to Buyer the amount paid by Buyer for such Nonconforming Products. Buyer shall ship and return, at APL’s discretion and at Buyer’s cost, Nonconforming Products to such location or facility designated by APL. If APL exercises its option to replace Nonconforming Products, APL shall ship replacement Products to Buyer at APL’s cost and shall reimburse Buyer for its shipping costs associated with their return of the Nonconforming Products. However, in the event APL determines that a rejected Product is not Non-conforming (in APL’s sole discretion), APL reserves the right to charge Buyer for any applicable shipping costs incurred by APL in relation to the replacement of such Products. Except as provided under this Section 7 and in Section 8 of these Terms, Buyer has no right to return Products shipped to Buyer pursuant to this Agreement. THE REMEDIES SET FORTH IN THIS SECTION 7 ARE BUYER’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING PRODUCTS, SUBJECT TO BUYER’S RIGHTS UNDER THE WARRANTY IN SECTION 9 BELOW WITH RESPECT TO ANY SUCH PRODUCTS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 7.

 

8. RETURNS AND EXCHANGE CREDITS. Buyer may not return or exchange any Products delivered to Buyer without the written consent of APL and the issuance of a written return material authorization (“RMA”) by APL. All returned or exchanged Products are subject to inspection by APL, at APL’s designated return location, to determine if the Products are in working condition, undamaged, and/or, repairable. If APL, in its sole discretion, determines that the Products are not in working condition, are damaged, and/or are unrepairable, APL will return such Products to Buyer at Buyer’s expense. Products that are returned for credit (other than Exchangeable Products) are subject to a thirty percent (30%) restocking fee based on the Product’s purchase price. In certain circumstances and in APL’s sole discretion, APL may allow a Buyer to return a Product manufactured by APL and exchange it with a different Product manufactured by APL (“Exchangeable Products”). All Exchangeable Products must be shipped, at Buyer’s expense, and returned to APL before a different Exchangeable Product is shipped to Buyer in exchange. The quantity of the Exchangeable Products Buyer will receive from APL in such an exchange shall be determined after each Product returned by Buyer is inspected and determined to be in working condition, undamaged, and/or repairable by APL. Any Product that is not in working condition, damaged, and/or unrepairable by APL will be returned to Buyer, at the Buyer’s expense. Materials not manufactured by APL may not be returned to APL under any circumstance. Custom parts manufactured by APL may not be returned or exchanged under any circumstance. Custom equipment manufactured by APL may be returned in the sole discretion of APL.

 

9. LIMITED WARRANTY.

• Buyer acknowledges that certain Products may be subject to warranties provided in a Quotation, which may be different or in addition to the warranties stated in this Section 9 (the “Quotation Warranties”). Such Quotation Warranties are intended to supplement the warranties stated in this Section 9; provided, however, the Quotation Warranties shall prevail over the warranties contained in these Terms to the extent any inconsistency or conflict arises. Unless otherwise expressly stated in a Quotation, the warranties provisions in Sections 9(b) through Section 9(f) will apply to all Purchase Orders.

 

• Unless otherwise stated in a Quotation, APL warrants to Buyer that for a period of twelve (12) months from the date of delivery of Products to Buyer (“Warranty Period”) that Products manufactured or produced by APL will be free from material defects in material and workmanship. Notwithstanding anything in this Agreement to the contrary, Products manufactured by a third party (a “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 Quotation Warranties or the warranty in this Section 9(b) and APL’s sole obligation with respect to any defective, deficient, or non-conforming Third Party Products shall be to assign to Buyer any assignable manufacturer’s warranty applicable to such Third Party Products.

 

• EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 9(B) OR IN A QUOTATION, APL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) 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.

 

• APL shall not be liable for a breach of the warranty set forth in Section 9(b) or in any Quotation unless: (i) Buyer gives written notice of the defect, reasonably described, to APL within fourteen (14) days of the time when Buyer discovers or ought to have discovered the defect; (ii) APL is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by APL) returns such Products to APL’s place of business at Buyer’s cost for the examination to take place there; and (iii) APL reasonably verifies Buyer’s claim that the Products are defective.

 

• APL shall not be liable for a breach of the warranty set forth in Section 9(b) or in any Quotation if: (i) Buyer makes any further use of such Products after giving such notice required in Section 9(d); (ii) the defect arises due to Buyer’s improper use, handling, testing, storage, installation or maintenance of the Products, including without limitation, Buyer failing to follow Seller’s oral or written instructions as to the storage, use, repair, or maintenance of the Products; (iii) the defect arises due to degradation of consumable materials such as oils, fluids, filters, hardware, belts, or other such parts or materials Buyer should reasonably expect to maintain and/or replace; (iv) Buyer uses or services the Products with abrasive or corrosive chemicals or materials, or uses or services the Products in a corrosive or abrasive atmosphere, (v) Buyer alters or repairs such Products without the prior written consent of APL, (vi) Buyer subjects the Products to abnormal physical stress or environmental conditions, or (vii) there are any causes or conditions beyond APL’s control.

 

• Subject to Section 9(d) and Section 9(e) above, with respect to any such Products manufactured by APL during the Warranty Period, APL shall, in its sole discretion, either: (i) repair or replace such Products or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if APL so requests, Buyer shall, at Buyer’s expense, ship and return such Products to APL. In the event, APL elects to repair or replace such Products covered by a warranty in Section 9(b) or in a Quotation, the Buyer shall pay all applicable shipping costs. THE REMEDIES SET FORTH IN THIS SECTION 9(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND APL’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(b) OR IN ANY QUOTATION.

 

10. LIMITATION OF LIABILITY.

• No Consequential or Incidental Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(d) BELOW, IN NO EVENT SHALL APL OR ANY OF ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES OR AGENTS BE LIABLE UNDER THIS AGREEMENT TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, ENHANCED, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF REVENUE OR PROFIT, OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT APL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

• Maximum Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(d) BELOW, IN NO EVENT SHALL APL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO APL PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

• Limitations and Exclusions. APL has relied on the foregoing limitations and exclusions from liability and Buyer acknowledges that this Section 10 is essential in the establishment of the prices for the Products. The limitations on, and exclusions from, liability set forth herein shall apply to the maximum extent permitted by applicable law; provided, however, such limitations and exclusions shall not apply to liability directly caused by APL’s willful misconduct. THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF BUYER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 

• Deadline to Bring an Action. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

 

11. INDEMNIFICATION. Buyer shall defend (with legal counsel acceptable to APL), indemnify and hold APL and its affiliates and subsidiaries and their respective officers, directors, owners, employees, and agents harmless from and against any and all claims, demands, causes of action, suits, proceedings, losses, damages, penalties, fines, liabilities, judgments, settlements and/or expenses (including, without limitation, reasonable legal fees and other costs and expenses of litigation) resulting from or otherwise connected with any of the following: (i) any act or omission of Buyer or any of its employees, contractors or agents with respect to its or their use, sale, distribution, disposal or other disposition of any Product; (ii) any design, specification, material or other component supplied or approved by Buyer for the design, manufacture, or installation of any Product; and (iii) any breach of the terms and conditions of this Agreement by Buyer or its employees, contractors or agents.

 

12. IMPORT/EXPORT. To the extent applicable, Buyer shall be the importer of record and shall be responsible for obtaining and maintaining, at its cost, all legally required approvals, licenses, permits, registrations, certifications, and other documents necessary for or relating to the importation and/or exportation of the Products. Buyer shall be responsible for all costs and expenses relating to the Products transit across a country’s border, including, without limitation, payment of any tariffs, customs, duties, fees, or charges imposed or levied upon the Products. Buyer shall not name APL as the shipper or importer of record for any Products purchased from APL. Buyer shall ensure that any Products that Buyer receives from APL are imported, exported and/or re-exported by Buyer only in compliance with applicable laws, including, without limitation, the U.S. Export Administration Regulations. Products may not be imported, exported, sold or resold, disposed of, or transported by or to any country or person which would cause APL to be in violation of or be penalized by any governmental authority or applicable economic sanctions laws.

 

13. CANCELLATION.

• All cancellations of Purchase Orders shall require APL’s written consent, which may be withheld in APL’s sole discretion. In the event of APL’s written consent to cancel a Purchase Order, Buyer shall pay to APL the following amounts: (i) the Purchase Order price for all Products and services to the extent completed in accordance with this Agreement and not previously paid for; (ii) any and all costs (including reasonable legal fees and judgments) incurred by APL as a result of the termination of subcontracts related to the Purchase Order; (iii) a reasonable profit if not otherwise paid in full; and (iv) APL’s carrying costs on such cancelled Products and work in progress until resold, such amounts to be billed to Buyer on a monthly basis and to be payable immediately upon receipt of such billing. In addition to the amounts listed above in this Section 13(a), APL reserves the right to charge Buyer a decommissioning fee of at least ten percent (10%) of the applicable Product purchase price (the “Decommissioning Fee”) along with the costs made by APL in procuring materials identified to this Purchase Order. Such Decommissioning Fee includes, but is not limited to, costs associated with disassembly of Products, labor, and forklift operations in connection with moving cancelled Products into APL inventory.  In lieu of the foregoing, and at APL’s sole discretion, APL and Buyer may negotiate a single payment in settlement of Buyer’s cancellation of a Purchase Order.  This cancellation provision shall not preclude APL from exercising any other rights or remedies that it may have at law or in equity.  Notwithstanding the above, Purchase Orders for custom Products shall not be subject to cancellation and Buyer shall be responsible for payment of the full purchase price for the custom Products.

 

• Training and Service Cancellation. Quotations may contain provisions for Product related training and/or services. APL has no obligation to perform training or services with respect to the Products if such obligations are not contained in a Quotation. There will be no charge to Buyer for the cancellation of a training registration if APL is given written notice of the cancellation at least fourteen (14) days in advance of the training start date.  In the event fourteen (14) day prior notice is not given to APL, the cancellation is subject to reasonable cancellation fees including, but not limited to, costs incurred by APL for items such as noncancellable flights and hotels.

 

14. COMPLIANCE WITH LAWS. Buyer shall comply with all applicable laws, statutes, rules, regulations, and ordinances in the performance of this Agreement and its use, sale, distribution, disposition, and disposal of the Products. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits with respect to the Products and to carry out its obligations under this Agreement.

 

15. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of APL, including, but not limited to, trade secrets, manufacturing processes, specifications, samples, patterns, designs, plans, drawings, documents, data, software, business operations, vendor information, customer information, cost and pricing information, discounts, and rebates, disclosed or made available by APL 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 (collectively, “Confidential Information”) is confidential and the exclusive property of APL, and solely for the use of performing this Agreement, and may not be disclosed or copied by Buyer unless authorized in advance by APL in writing. Buyer shall maintain the confidentiality of APL’s Confidential Information in the same manner that Buyer protects its own most sensitive confidential information, but in no event shall Buyer exercise less than reasonable care in protecting APL’s Confidential Information. Buyer shall not use or disclose such information to any person or business, other than an employee or agent of Buyer who has a strict need to know the information to enable Buyer to perform its duties and obligations under this Agreement; provided, however, that such employees and agents be required to maintain the information at all times in strict confidence in accordance with this Section 15. Buyer shall be responsible for any breach of this Section by its employees or agents. Upon APL’s request, Buyer shall promptly return or destroy (and certify to such return or destruction) all documents, and other materials received from APL. APL shall be entitled to injunctive relief for any violation of this Section 15. This Section does not apply to information which Buyer can demonstrate with credible evidence that is: (a) available to and known by the public, other than as a result of Buyer’s (or any of its affiliates, contractors, or representatives) breach of this Section 15; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third-party. If Buyer is compelled by any court order, subpoena, discovery request or similar legal process or authority (each, a “Legal Process”) to disclose any of APL’s Confidential Information, Buyer shall provide APL with prompt written notice of the Legal Process and provide reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Buyer remains subject to the Legal Process, Buyer shall disclose no more than that portion of APL’s Confidential Information which, on the advice of Buyer’s legal counsel, such Legal Process specifically requires be disclosed and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment. Buyer’s obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of this Agreement and will expire three (3) years from the expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

 

16. INTELLECTUAL PROPERTY RIGHTS.

• “Intellectual Property Rights” collectively mean all worldwide industrial or intellectual property, and all related rights or interests comprising or relating to: (i) patents, patent disclosures, patent applications, and like statutory rights; (ii) trademarks, trade names, domain names, service marks and logos; (iii) inventions (whether patentable or not), invention disclosures, developments, improvements, and trade secrets (iv) engineering, planning and operating information and data; (v) technical information, user manuals and documentation, processes, procedures, formulas, technology, and data related in any way to APL’s business of designing or manufacturing the Products; (vi) confidential information and other proprietary information and all documentation relating to any of the foregoing; (vii) designs, development tools, specifications, technical drawings (or similar information in any written or electronic format) and any registrations and applications therefore; (viii) software, including, but not limited to AP Grind, BarMaster, all other software developed by or licensed to APL, and all electronic or hard-copy documentation incorporated therewith (collectively, the “Software”); and (ix) all other industrial and intellectual property rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the laws of any jurisdiction throughout any part of the world.

 

• Buyer acknowledges and agrees that: (i) any and all Intellectual Property Rights of APL are the sole and exclusive property of APL or its licensors, including, but not limited to, all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Products of APL; (ii) Buyer shall not acquire any ownership, licenses, or other interests in any of APL’s Intellectual Property Rights under this Agreement, except for the limited software license granted in Section 16(c) below; (iii) all goodwill derived from the use of APL’s Intellectual Property Rights inures to the benefit of APL or its licensors, as the case may be; (iv) if Buyer acquires any rights or interests of any kind in or relating to any Intellectual Property Rights of APL (including any rights in any patents, trademarks, copyrights, trade secrets, derivative works or improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned by Buyer to APL or its licensors, as the case may be, without further action by either Party; and (v) Buyer may use APL’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with the instructions of APL.

 

• Subject to the terms and conditions of this Agreement, APL hereby grants Buyer a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to use the Software that is incorporated into a Product solely for Buyer’s internal business purposes in connection with the use and operation of any Product. All Software shall (1) remain APL’s exclusive property; and (2) is subject to the terms and conditions of this Agreement. Buyer shall not use the Software for any purposes beyond the scope of the license granted in this Section 16(c). Without limiting the foregoing, Buyer shall not at any time, directly or indirectly: (i) use the Software for any purpose other than in connection with the use, operation, and control of the Products; (ii) copy, modify, or create derivative works of the Software, in whole or in part; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (v) remove any proprietary notices from the Software; or (vi) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. IN THE EVENT BUYER DOES NOT MAKE ALL PAYMENTS DUE AND OWING TO APL FOR THE PRODUCTS THAT INCORPORATE OR CONTAIN SOFTWARE, APL RESERVES THE RIGHT TO REMOTELY SUSPEND THE LICENSE GRANTED IN THIS SECTION 16(C) AND DISABLE THE PRODUCTS/SOFTWARE FUNCTIONALITY DURING THE PERIOD OF NONPAYMENT. UPON RECEIPT OF FULL PAYMENT FOR THE PRODUCTS, APL SHALL REINSTATE THE LICENSE AND RESTORE THE PRODUCT/SOFTWARE FUNCTIONALITY IN A TIMELY MANNER. Further, APL may revoke this license if Buyer breaches this Agreement and such breach is incapable of cure or being capable of cure, remains uncured for a period of ten (10) days after the Buyer receives written notice of such breach from APL. APL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS AND/OR GOODWILL, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR IN CONNECTION WITH APL DISABLING PRODUCT/SOFTWARE FUNCTIONALITY.

 

• Buyer shall not: (i) take any action that may interfere with any of APL’s rights in or to APL’s Intellectual Property Rights, including APL’s ownership or exercise thereof; (ii) challenge any right, title or interest of APL in or to APL’s Intellectual Property Rights; (iii) make any claim or take any action adverse to APL’s ownership of APL’s Intellectual Property Rights; (iv) use any mark, anywhere, that is confusingly similar to APL’s trademarks; (v) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products purchased under this Agreement or any APL trademark; (vi) unless authorized in writing by an authorized representative of APL, resell or distribute the Products to any third-party (including, without limitation, relabeling or repackaging any of the Products for resale or distribution to any third-party); (vii) alter, obscure or remove any trademarks, copyright notices, patent or patent pending notices, or any other proprietary rights notices or information placed on the Products or their labels, packaging, containers, or documentation; or (viii) alter, adapt, copy, modify, create a derivative product or work of, reverse engineer or otherwise attempt a work around to discover any formulation or composition of the Products, or any part of the Confidential Information or Intellectual Property Rights of APL.

 

17. FORCE MAJEURE. APL shall not be in default of, or liable for any delay in the performance of, this Agreement by reason of any of the following: acts of God; flood, tornado, fire, explosion, or other natural or man-made disaster; epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental orders, laws, emergency proclamations, or quarantine restrictions; actions, embargoes or blockades; action by any governmental authority or agency; shortage or unavailability of materials; unavailability of labor, strikes, labor stoppages or slowdowns or other industrial disturbances; shortage or unavailability of adequate power facilities; shortage or unavailability of adequate transportation facilities; and/or other events (whether or not similar in type or nature to the previously listed events) beyond the control of APL (each a “Force Majeure Event”). APL will give Buyer written notice of a Force Majeure Event as soon as practicable after learning of its commencement, along with APL’s estimate of the period of time that the Force Majeure Event is expected to continue. In the event of a Force Majeure Event, (a) APL’s performance under this Agreement will be postponed by such length of time as may be reasonably necessary to compensate for the delay caused by or resulting from the Force Majeure Event, (b) APL may allocate its available inventory of Products to any persons, including Buyer, in a manner APL determines to be fair and equitable, and (c) subject to applicable law, APL may terminate this Agreement and/or cancel any purchase order impacted by the Force Majeure Event without liability to Buyer.

 

18. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of APL. Any purported assignment or delegation in violation of this Section 18 is null and void. No permitted assignment or delegation relieves Buyer of any of its obligations under this Agreement.

 

19. 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.

 

20. NO THIRD-PARTY BENEFICIARIES. Except for the rights of indemnified parties pursuant to Section 11 above, 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 business any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

21. GOVERNING LAW/VENUE. The Agreement shall be construed and governed under the laws of the State of Illinois (excluding application of its conflicts of law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended). All actions or counterclaims regarding the enforcement or interpretation of this Agreement shall be initiated and prosecuted exclusively in the state and federal courts located in Will County, State of Illinois and those courts hearing direct appeals therefrom. Buyer and APL both consent to the exclusive jurisdiction and venue of such courts and expressly waive objections based on the doctrines of personal jurisdiction or forum non conveniens. APL AND BUYER VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION RELATING TO THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.

 

22. NO WAIVER. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by APL. The failure of APL to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that APL may have under this Agreement, at law, in equity or otherwise.

 

23. NOTICES. All notices, requests, 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 Quotation 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 or email (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 23.

 

24. AMENDMENT AND MODIFICATION. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

 

25. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

26. LEGAL FEES. If APL brings legal action to enforce any of its rights or interests as provided for in this Agreement, APL shall be entitled to recover all of its reasonable legal fees, expenses, and costs incurred in connection with such legal action from Buyer.

 

27. SURVIVAL. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Sections 3, 9, 10, 11, 14, 15, 16, and 17 to 28.

 

28. SECTION HEADINGS. The headings in this Agreement are included for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.