TERMS AND CONDITIONS

The following terms and conditions (“Agreement”) will govern all sales of American Polymer Company (“APC”) products. This Agreement may be attached to, accompanying, or otherwise referred to in a quotation, order confirmation, invoice, packing slip, or other document acknowledging a sale of APC’s products (“Sales Documents”), and shall govern any and all current and subsequent sales or transactions, regardless of whether this Agreement is provided together with, or separately from, any such Sales Documents, unless and until a new or revised copy of this Agreement is attached to, accompanies, or is otherwise referred to in a future Sales Document. Any terms and conditions contained in, referred to, attached to, or accompanying APC’s direct customers’ (“Purchaser”) purchase orders or other ordering documents will be void and this Agreement will supersede and govern the sale, unless otherwise agreed to in writing and signed by an officer of APC. This Agreement may be changed, modified, or amended by APC from time to time, and without separate notice.

PRICES AND AVAILABILITY. Prices quoted are determined based on the quantity of the item to be ordered and the cost and availability at the time of the quote. Unless otherwise stated in writing and signed by an officer of APC, all prices and availability provided are subject to change without notice. Unless otherwise stated in writing, all prices are FOB APC’s plant, freight to be paid by Purchaser. If transportation charges are included in the prices, any changes in such transportation costs shall be for the account of the Purchaser, and APC shall not be responsible for handling, storage, demurrage, or any similar transportation or accessorial service or charge. Orders will be billed at the prevailing price at the time of shipment. Any tax, effective under present or future laws, shall be added as an extra to the price of the product and shall be paid by the Purchaser. Possession of product information or price sheets shall not be construed as an offer or sale.

CREDIT AND COLLECTION. Any offer of credit terms offered are subject to the approval of APC’s credit department. APC reserves the right to, at any time and without notice, alter, suspend, or withdraw credit terms provided. Failure to pay invoices at maturity date automatically makes all subsequent invoices immediately due and payable irrespective of terms. Purchaser shall pay to APC all reasonable costs of collection of money due and unpaid including reasonable attorney’s fees. A delinquency charge of 1.5% per month, or such other maximum lawful rate, will be added to all amounts not paid within terms extended.

DELIVERY & CLAIMS. Shipments shall be subject to availability of products ordered and freight. Acknowledgement or confirmation of the receipt of an order by APC does not constitute acceptance of any pricing, delivery dates, or material terms or conditions. All products are shipped at the Purchaser’s risk. Purchaser shall promptly unload each shipment or order upon arrival, examine any orders or products delivered hereunder immediately upon receipt for incorrect, missing, damaged, defective, or otherwise nonconforming products (“Order Defects”) and provide written notice to APC as described below, stating with particularity the nature of the Order Defect. Failure of Purchaser to give written notice to APC as specified of any claims for Order Defects within five (5) days of receipt of such products shall constitute a full and unqualified acceptance of the condition and quantity thereof and a waiver by Purchaser of all claims with respect thereto. Purchaser shall be responsible for making directly to the carrier all claims for loss or damage in transit within five (5) days of receipt of shipment or order. Orders or products claimed by Purchaser to have or contain Order Defects shall be held for inspection, verification, and determination of cause if requested by APC, with APC being given the opportunity to confirm, by its inspection, the complaint of Purchaser. Purchaser must obtain APC’s return material authorization (“RMA”) or other permission in writing from APC and comply with written instructions before returning any order or product claimed to have or contain Order Defects.

REMEDY. If orders or products furnished to Purchaser are proved to be, to APC’s satisfaction, damaged, defective, or otherwise nonconforming due to the sole fault of APC, and APC is notified properly in accordance with the terms of this Agreement, APC shall replace nonconforming products at the original place of delivery or provide a credit for the amount invoiced, at APC’s election. This will be Purchaser’s sole and exclusive remedy with respect to damaged, defective, or otherwise nonconforming products and shall have no effect on conforming products shipped together therewith. APC shall in no event be liable for any special, direct, indirect, punitive, incidental, or consequential damages to any party (including, but without limitation, any damages resulting from loss of use, business interruption, loss of profit or savings, or the cost of procurement of substituted goods, even if APC or one of its affiliated entities was advised of a possible claim or third party claim for damages or any other claim against Purchaser), nor shall APC in any event be responsible for the design of products, their selection, their suitability for the purpose for which they are intended to be used by Purchaser, even if known to APC, or for products that become defective, damaged, or otherwise nonconforming due in any way or amount due to actions by parties other than APC. Purchaser assumes all risk and liability resulting from selection, distribution and/or use of the products delivered as part of this sale, whether used singularly or in combination with other products. Purchaser waives the right to assert offsets, defenses, or counterclaims.

WARRANTY. UNLESS OTHERWISE STATED IN A SEPARATE AGREEMENT IN WRITING THAT IS SIGNED BY BOTH PARTIES, AMERICAN POLYMER COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF THAT PURPOSE IS KNOWN TO APC, AND ANY IMPLIED OR STATUTORY WARRANTIES OR GUARANTEES OF NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

All goods are sold as-is. In limited circumstances, which will always be in writing and signed by both parties, APC may agree to provide a Limited Warranty to the original Purchaser only on specific products sold to certain Purchasers as described below. In such circumstances, these specific products are warranted to be free from structural defects in material and workmanship and/or fit for normal use and operation, details of which must be formally transmitted to APC in writing and with specificity prior to shipment, for a period of thirty (30) days after the date of shipment by APC or for a period otherwise agreed to in writing and signed by both parties. Cosmetic defects, including but not limited to discoloration, varied pigmentation, fading, irregular texture, non-structural pitting, or other similar items that do not affect the structural integrity of the products, are excluded from coverage. Notice of any and all claims must be brought in writing as described below within thirty (30) days of the expiration of the Limited Warranty period, and any claims for defects, regardless of whether they were known, unknown or unknowable during the Limited Warranty period or alleged to be latent shall be barred after this 30 day period. Purchaser’s sole and exclusive remedy for any product proved to be in breach of this Limited Warranty, with all exclusions and limitations, unless otherwise agreed to in writing and signed by both parties, is limited to replacement of the product, FOB the point of original delivery, or credit for the amount paid, at the discretion of APC. This Limited Warranty excludes any expense for removal, reinstallation, inspection, testing, or any other services related thereto of any product and any other special, direct, indirect, punitive, incidental, or consequential damages. This Limited Warranty, which shall only be effective in limited circumstances on specific products sold to certain Purchasers if agreed to in writing and signed by both parties as specified above, shall be expressly in lieu of all other warranties of any kind, express and implied, including but not limited to any implied or statutory warranties of merchantability and fitness for a particular purpose, even if that purpose is known to APC, and any implied or statutory warranties or guarantees of non-infringement of proprietary rights, as expressly disclaimed above. No statement, conduct, or description by APC or its representatives shall constitute a warranty or guarantee.

This Limited Warranty will not apply if:

• The products are used for purposes other than their intended purpose as transmitted to APC in writing prior to shipment.
• The products are not installed in good and workmanlike manner consistent with normal industry standards.
• The products are used or installed in a way that violates any federal, state, or local governmental codes or regulations.
• The products fail due to defects or deficiencies in design, engineering, or installation of the system of which they are a part.
• The products have been the subject of modification, misuse, misapplication, improper maintenance or repair, damage caused by the fault, neglect, or negligence of anyone other than APC or any other act or event beyond the control of APC.
• The products fail due to extreme weather or climate.
• The products fail due to contact with chemical agents that are not compatible with the products.

All products alleged to be in breach of the foregoing Limited Warranty must be made available to APC at the address below, freight prepaid, with a statement describing the alleged defects for verification, inspection, and determination of cause, and only after inspection has been made and the alleged defect is verified, to APC’s satisfaction, will remedy be available. Purchaser must obtain written permission or an RMA and comply with written instructions before returning any product claimed to be in breach of the Limited Warranty.

FORCE MAJEURE AND EXCUSE. APC shall be excused from performance and shall not be liable for any losses or damages of any kind due to delayed, partial, or non-delivery caused, in part or in whole, by any of the following: acts of God, war, peril at sea, acts of terrorism, casualty, sabotage, fire, any fire or other regulations imposed by any government or agency, riots, strikes, lockouts or other unusual inability to secure labor, floods or other unusual weather conditions, accidents, damages or losses in transportation, quotas, allocations, blockages, embargoes, insurrections, mobilization or any other key actions of governmental authorities, any non-governmental restrictions, equipment or apparatus breakdowns or failures, power failures, inability to obtain fuel, power, raw materials, containers, trucks, or other transportation at reasonable costs (reasonableness to be in the sole discretion of APC), work stoppage or interruption, non-performance of third parties, or any cause beyond APC’s control, whether at shipping point or destination point, in transit, or wherever such event takes place. In any such event, APC may cancel the sale outright, delay shipment for as much time appears to be reasonable in APC’s discretion, and/or alter pricing without any liability to the Purchaser or third parties.

INDEMNIFICATION. APC shall not be liable for, and Purchaser shall indemnify and hold harmless APC from any and all claims, liability, or damages to property or persons, direct or indirect, resulting from or arising out of the purchase, sale, and use of APC’s products, including but not limited to damages arising from the Purchaser or Purchaser’s customers’ mistake or negligence in selecting, installing, maintaining, or otherwise using APC’s products.

NOTICES. All notices required by this Agreement to be provided to APC shall be sent via certified mail to the following address, with a copy emailed to ryan@apcunderground.com.

American Polymer Company
Attn: General Counsel
2201 NW 16th St
Pompano Beach, FL 33069

MODIFICATION, WAIVER, & ENFORCEMENT. The terms and conditions herein shall constitute the entire agreement between the parties with respect to this and any other transactions and supersede any terms and conditions of a previous or later date and any oral agreements between the Purchaser and APC. The terms and conditions contained herein can be modified, waived, or rescinded only if in writing signed by an officer of APC. No modification of the terms of this Agreement shall be effected by the acknowledgement, acceptance, or fulfillment of a purchase order or other document stipulating different terms or conditions. The Purchaser’s acceptance of or payment for APC’s products, whichever happens earlier, shall constitute the Purchaser’s binding agreement to the terms and conditions stated herein. Failure of APC to enforce Purchaser’s compliance with any provision(s) hereof shall not be deemed a waiver or limitation of the right to subsequently enforce or compel strict compliance with every provision of this Agreement, including any that were previously not enforced. If any provision of this Agreement that is found by a court of competent jurisdiction to be void, voidable, invalid, unenforceable, or otherwise properly superseded by another agreement or law, it shall not invalidate the remaining provisions hereof and they instead shall remain in full force and effect, and if limiting such provision would make the provision valid or enforceable, then such provision shall be deemed to be construed as so limited in accordance with the spirit of this Agreement to the extent allowed by law. Furthermore, any contradictory law or provision from another document found to be properly superseding any provision herein should be interpreted narrowly to preserve the spirit and enforceability of this Agreement, and this Agreement shall be used in clarifying any omissions or ambiguities arising out of any such law, provision, or document, including but not limited to warranty terms.

GOVERNING LAW & VENUE. This Agreement shall be governed and construed in accordance with the laws of the state of Florida. Any claim, lawsuit, or other legal proceeding arising out of any sale covered by this Agreement shall be brought in a court of competent jurisdiction in Broward County, Florida. Such venue is acknowledged to be reasonable and favorable to both parties.