APG Terms and Conditions 2019
American Precision Gauge, LLC –Terms and Conditions
1. CONTRACT. The sale of goods described on the reverse side hereof is subject to the following terms and conditions (“Terms and Conditions”) which, together with the reverse side hereof, collectively constitute the entire contract (the “Contract”) to buy and sell the goods described therein (the “Goods”). In the event of any conflict between these Terms and Conditions and the terms and conditions on the reverse side hereof, these Terms and Conditions shall govern and control in all respects. This Contract sets forth the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, and arrangements and understandings, written or oral, between the parties hereto. No representation, promise or inducement has been made by any party hereto that is not embodied in this Contract and no party shall be bound by or liable for any alleged representation, promise or inducement not expressly set forth herein. This Contract supersedes any purchase order or other like document of Buyer, if any. Any acceptance by Buyer which states additional or different terms shall be deemed material alterations to this Contract, and notice of objection to said additional or different terms is hereby given pursuant to section 2207(2)(c) of the California Commercial Code.
2. ENFORCABILITY. The Contract shall become binding and enforceable against Buyer on the earlier of (a) when signed or accepted in writing by Buyer, its agent or broker; or (b) when signed and delivered by Seller to Buyer; provided that Buyer does not deliver a written objection to Seller of this Contract within ten (10) days after receipt by Buyer thereof; or (c) when Buyerhas paid for or has accepted delivery or partial delivery of the Goods.
3. FORCE MAJEURE. Seller shall not be liable for any loss or damage with respect to the Goods on account of delayed delivery or non-delivery, in whole or in part, if such delayed delivery or non-delivery is caused by Acts of God, fire, strikes, floods, accident, riots, lockouts, industrial disturbances, war, blockades, embargoes, insurrection, actions of governmental authorities, non-governmental restrictions, curtailment of production at Seller’s source and supply, or any cause beyond Seller’s control. Seller shall have the right in the event of the happening of any of the above contingencies, at its sole discretion, to cancel the Contract without incurring liability to Buyer, or delivery the Goods at such time as the Goods are reasonably available for delivery. If Seller, following the happening of any of the above contingencies, elects not to cancel this Contract, the time originally specified for delivery under this Contract shall be deemed extended for a period equal to Seller’s disability.
4. DELIVERY. Unless otherwise set forth on the reverse side hereof, and subject to these Terms and Conditions, (i) shipment is considered timely if made within thirty (30) days of the date specified by the Seller for shipment, (ii) the Goods are sold FCA FREE CARRIER (Seller’s loading dock)(Incoterms 2000), and (iii) the shipping point and acceptance of shipment by a common carrier shall constitute a delivery to the Buyer upon which title and risk of loss shall pass to Buyer. Notwithstanding the above, Goods invoiced and held at Buyer’s request at any place, for whatever reason, shall be at Buyer’s sole risk and account. Any delivery not in dispute shall be paid by Buyer regardless of any dispute as to any other merchandise. Prices on the Goods are exclusive of all city,state and federal taxes
5. DEFAULT. If any invoice is not paid when due, or upon the Buyer’s breach of or default on any term or condition of this orany other contract with Seller, all sums owing under this Contract shall, in the absolute discretion ofSeller, become immediately due and payable. Seller may, in its absolute discretion, assess a penalty upon delinquent accounts at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Buyer hereby grants to Seller a first priority purchase money security interest in any and all goods purchased from Seller, and in the proceeds from the sale thereof, to secure Buyer’s obligations to Seller hereunder. Upon any default by Buyer hereunder, Seller shall have all the rights of a “secured party” under the California Commercial Code. If any invoice is not paid when due, Seller shall have the further right to defer delivery under this Contract, and any other contract between Buyer and Seller, until such payment is made and for a reasonable time thereafter, and/or Seller may cancel this Contract and any other contracts between Buyer and Seller. Nothing contained in this section shall limit the remedies otherwise available to Seller under the law.
6. NONCONFORMING GOODS. Seller shall not be liable for normal manufacturing defects, customary variations from quantities or specifications, nor for inherent defects of or in the Goods. Claims for defective products, shortages, delays or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless Buyer notifies Seller in writing within ten (10) days after the arrival of the Goods at the destination specified in this Contract, indicating full particulars, reasonable evidence supporting the claim, andSeller’s claimed responsibility for the claim under this Contract. If Buyer claims that Goods are defective in quality, they must be properly and promptly offered to the Seller for its examination, and if Buyer does not permit and facilitate said examination, Buyer’s claims shall be deemed waived and released. With respect to this Section 6, time is of the essence. If Buyer claims that between the time of loading at the point of origin and the time of delivery to Buyer, the Goods have been damaged, destroyed, or a shortage has occurred, the Buyer shall use its best efforts to establish the cause and extent of such damage, destruction or shortage, and shall immediately notify Seller thereof in writing, and shall keep any such goods which are destroyed, damaged or subject to shortage segregated and available for Seller’s inspection. Seller shall not be responsible for any fees or costs associated with the return of conforming goods.
7. RIGHT TO POSSESSION. Seller shall have the right, for credit reasons or because of Buyer’s default, to withhold shipments, in whole or in part, and to recall Goods in transit, retake same, and/or repossess all materials which may be stored with Seller for Buyer’s account, without the necessity of taking any other action, and Buyer consents that all merchandise so recalled, retaken or repossessed shall become the absolute property of Seller, or at the option of Seller, retained as security by Seller until such time as Buyer’s account is no longer delinquent or Buyer’s breach is remedied to the satisfaction of the Seller. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer.
8. WARRANTIES. Seller warrants that the Goods shall be free from material defect for a period of one (1) year from the date of delivery of the Goods to Buyer. ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. In no event shall Seller be liable to Buyer for any actual or alleged consequential, special and/or incidental damages, including but not limited to loss of profits or loss of business. Buyer’s exclusive remedy for breach of warranty, express or implied, shall be limited to return of the Goods and refund of the purchase price of the Goods, or repair and replacement of the Goods, at Sellers option. In no event shall Seller be liable to Buyer, for any reason, in an amount which is in excess of the amount actually paid by Buyer to Seller for the Goods.
9. QUOTATION AND PRICES. Prices are subject to change without notice. Orders calling for future delivery will be billed according to the price then in effect at the date and place of delivery. If the cost to the Seller of any undelivered portion of the Goods is increased by reason of legislation hereafter enacted, or by governmental or departmental regulations issued by governing authorities having jurisdiction over the Goods or materials incorporated into the Goods, such increase shall be for the account of the Buyer, and, if paid or required to be paid by the Seller, the amount thereof shall be added to and become a part of the invoice and shall be payable by the Buyer.
10. BUYER SPECIFICATIONS. In the event that the Goods have been manufactured in accordance with designs, labels, brand names or other specifications of Buyer, to the extent permitted by law and public policy, Buyer agrees to assume all obligations associated with the Goods, and shall hold Seller harmless, and shall defend and indemnify Seller, from and against all claims, losses, obligations, actions, costs and expenses, including expert fees and attorney’s fees at trial and on appeal, arising out of, or in any way connected with, the Goods, regardless of any active or passive negligence on the part of Seller, excepting, however, Buyer shall have no indemnity obligation to the extent of the gross negligence or intentional torts of Seller.
11. CANCELLATION CHARGES. If this contract shall for any reason whatsoever be terminated, not performed or otherwise breached by Buyer prior to a complete payment by Buyer for all products ordered hereunder, Seller shall thereupon become immediately entitled to exercise any and all remedies in respect of Buyers termination, non-performance or other breach as set forth in the Uniform Commercial Code as then in effect in the State of California. Buyer and Seller hereby agree that with respect to custom solutions ordered, the Seller wouldbe entitled to be compensated on a percentage complete of the per unit contract price the calculation including: reasonable overhead, labor, materials fees (e.g. paid expedite or re-stocking) and materials used. Buyer and Seller hereby agree that with respect to standard components ordered, the Seller would be entitled to be compensated a 20% re-stocking fee.
12. GENERAL PROVISIONS. This Contract shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of California. All actions arising out of this Contract shall be litigated in the courts located in within Contra Costa County. This Contract may be amended, modified, or superseded, and the terms or covenants hereof may be waived, but only by awritten instrument executed by the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other provision. No waiver by eitherparty of the breach of any term or covenant contained herein, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant herein. Any term or provision of this Contract which is prohibited, invalid or unenforceable shall be ineffective to the extent (but only to the extent) of such prohibition, invalidity or unenforceability without invalidating or affecting any other term or provision hereof. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Buyer,or in the event of the appointment, with or without Buyer’s consent, of a receiver, Seller shall be entitled to elect to cancel any unfilled part of this Contract without any liability whatsoever. All terms written on customer quotes supersede any terms on this document. Buyer shall not assign this Contract without the prior written consent of Seller. This Contract has been negotiated between the parties, and shall not be deemed to have been drafted by either party for purposes of construction. In the event there is a dispute regarding theterms of this Contract, or the Contract requires enforcement, the prevailing party shall be awarded its attorney’s fees and costs, including expert and investigation fees, at trial and on appeal. The headings of the sections hereof are intended solely for means of reference and shall not modify, explain or place any construction on any of the provisions hereof. No remedy or election hereunder or at law or in equity of Seller shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies
SECTION 1 – TRANSACTIONAL INFORMATION
What do you do with my information?
When you purchase something from our store, as part of the buying and selling process, we collect the personal information you give us such as your name, address and email address.
When you browse our store, we also automatically receive your computer Internet protocol (IP) address in order to provide us with information that helps us learn about your browser and operating system.
Email marketing (if applicable):
With your permission, we may send you emails about our store, new products and other updates.
SECTION 2 – CONSENT
How do you get my consent?
When you provide us with personal information to complete a transaction, verify your credit card, place an order, arrange for a delivery or return a purchase, we imply that you consent to our collecting it and using it for that specific reason only.
If we ask for your personal information for a secondary reason, such as marketing, we will either ask you directly for your expressed consent, or provide you with an opportunity to say no.
How do I withdraw my consent?
After you opt-in, if you change your mind, you may withdraw your consent for us to contact you, for the continued collection, use or disclosure of your information, at any time, by contacting us at email@example.com or mailing us at: American Precision Gauge, LLC 22345 La Palma Ave #104 Yorba Linda, CA 92887.
SECTION 3 – DISCLOSURE
Do you disclose my information?
We may disclose your personal information if we are required by law to do so or if you violate our Terms of Service.
SECTION 4 – ONLINE STORE
Our online store is hosted by 3dcart. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
You can read more about how 3dcart uses your Personal Information here https://www.3dcart.com/privacy.html
If you choose a direct payment gateway to complete your purchase, the online store transmits your credit card data. The store data is encrypted through the Payment Card Industry Data Security Standard (PCI-DSS). Your purchase transaction data is stored only as long as is necessary to complete your purchase transaction. After that is complete, your purchase transaction information is deleted.
All direct payment gateways adhere to the standards set by PCI-DSS as managed by the PCI Security Standards Council, which is a joint effort of brands like Visa, MasterCard, American Express and Discover.
PCI-DSS requirements help ensure the secure handling of credit card information by our store and its service providers.
SECTION 5 – THIRD-PARTY SERVICES
In general, the third-party providers we use will only collect, use, and disclose your information to the extent necessary to allow them to perform the services they provide to us.
However, certain third-party service providers, such as payment gateways and other payment transaction processors, have their own privacy policies in respect to the information we are required to provide to them for your purchase-related transactions.
For these providers, we recommend that you read their privacy policies so you can understand the manner in which your personal information will be handled by these providers.
You can opt out of targeted advertising by:
Facebook – https://www.facebook.com/settings/?tab=ads
Google – https://www.google.com/settings/ads/anonymous
Bing – https://advertise.bingads.microsoft.com/en-us/resources/policies/personalized-ads
In particular, remember that certain providers may be located in or have facilities that are located in a different jurisdiction than either you or us. So if you elect to proceed with a transaction that involves the services of a third-party service provider, then your information may become subject to the laws of the jurisdiction(s) in which that service provider or its facilities are located.
As an example, if you are located in Canada and your transaction is processed by a payment gateway located in the United States, then your personal information used in completing that transaction may be subject to disclosure under United States legislation, including the Patriot Act.
When you click on links on our store, they may direct you away from our site. We are not responsible for the content or privacy practices of other sites and encourage you to read their privacy statements.
SECTION 6 – SECURITY
To protect your personal information, we take reasonable precautions and follow industry best practices to make sure it is not inappropriately lost, misused, accessed, disclosed, altered or destroyed.
If you provide us with your credit card information, the information is encrypted using secure socket layer technology (SSL) and stored with AES-256 encryption. Although no method of transmission over the Internet or electronic storage is 100% secure, we follow all PCI-DSS requirements and implement additional generally accepted industry standards.
SECTION 7 – DO NOT TRACK
Our website uses “Cookies” as data files that are placed on your device or computer and often include an anonymous unique identifier. For more information about cookies, and how to disable cookies, visit http://www.allaboutcookies.org.
Please note that we do not alter our Site’s data collection and use practices when we see a Do Not Track signal from your browser.
If you are a European resident, you have the right to access personal information we hold about you and to ask that your personal information be corrected, updated, or deleted. If you would like to exercise this right, please contact us through the contact information below.
Additionally, if you are a European resident we note that we are processing your information in order to fulfill contracts we might have with you (for example if you make an order through the Site), or otherwise to pursue our legitimate business interests listed above. Additionally, please note that your information will be transferred outside of Europe, including to Canada and the United States.
SECTION 8 – AGE OF CONSENT
By using this site, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
If our store is acquired or merged with another company, your information may be transferred to the new owners so that we may continue to sell products to you.
QUESTIONS AND CONTACT INFORMATION
If you would like to: access, correct, amend or delete any personal information we have about you, register a complaint, or simply want more information contact our Privacy Compliance Officer at firstname.lastname@example.org or by mail at American Precision Gauge, LLC
[Re: Privacy Compliance Officer]