OFFER OF SALE
TERMS AND CONDITIONS OF SALE
AFP Industries, INC.
The items described in this document and other documents or descriptions provided by AFP Industries, Inc. (“AFP”) are offered for sale at prices to be
established by AFP. This offer and its acceptance by any customer (“Buyer”) shall be governed by the following terms and conditions. Buyer’s order for
any such item, when communicated to AFP verbally or in writing, shall constitute acceptance of this offer together with the following terms and
GENERAL TERMS/NO DIFFERENT TERMS OR CONDITIONS: All descriptions, quotations, proposals, offers,
acknowledgements, acceptances and sales of AFP’S products are subject to and shall be governed exclusively by the terms and conditions stated herein.
Buyer’s acceptance of any offer to sell is limited to these terms and conditions.
ANY TERMS OR CONDITIONS IN ADDITION TO, OR
INCONSISTENT WITH THOSE STATED HEREIN, PROPOSED BY BUYER IN ANY ACCEPTANCE OF AN OFFER BY AFP, ARE
HEREBY OBJECTED TO.
No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and
AFP unless expressly accepted in writing signed by an officer of AFP. AFP’s acceptance of any offer to purchase by Buyer is expressly conditional upon
Buyer’s assent to all terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer’s offer.
Acceptance of AFP’s products shall in all events constitute such assent. The information contained on the front of this document and other information
from AFP provide product or system options for further investigation by users having technical expertise. Before you select or use any product or
system, it is important that you analyze all aspects of your application and review the information concerning the product in the current product catalog.
The user, through its own analysis and testing, is solely responsible for making the final selection of the system and components and assuring that all
performance, safety and warning requirements of the application are met, and assures any and all use associated with such selection.
No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and
PAYMENT/COLLECTION OF ACCOUNTS: Payment is due from Buyer at AFP within 30 days from the date of the invoice for the
items purchased hereunder. Amounts not timely paid shall bear interest at the rate of 2% per month for each month or portion thereof that the Buyer is
late in making payment. In event payment is not received within 60 days from the date of invoice, any discount is cancelled and the full list price will be
due. In the event payment is not received within 90 days from the date of the invoice, Buyer shall be in default of the terms of this Agreement and , AFP
will refer the matter to either an attorney or collection agency for collection. In event of referral to any attorney for collection, Buyer shall be responsible
for reasonable attorney’s fees. AFP shall be entitled to collect from Buyer all of its costs incurred to collect overdue accounts. Such actions shall be
brought in the court of competent jurisdiction sitting in Chesterfield County, Virginia, wherein AFP has its offices and conducts its performance of this
contract. If, in the sole and exclusive judgment of AFP, the financial condition of the Buyer at any time does not justify continuance of production or
shipment on the terms of payment specified, AFP may require full or partial payment by Buyer prior to shipment / delivery of the products sold.
CHANGES IN PRICE: All price estimates are subject to change without prior notice. All orders are subject to acceptance by the appropriate
officer of AFP. Unless otherwise stated, all orders accepted will be accepted with the understanding that all prices are subject to change without prior
notice and together with any and all applicable taxes in effect on the date of shipment. In the event of a price increase, any unshipped portion of the order
may be cancelled at Buyer's option except that, as to any goods to be produced to Buyer's special design, construction or brand there shall be no such right
of cancellation, and Buyer shall accept delivery of the product.
ERRORS IN PRICE: Prices stated shall be subject to correction for clerical and stenographic errors.
DELIVERY/SHORTAGES: Unless otherwise provided on the face hereof, delivery shall be made F.O.B. AFP’s facility. Regardless of the
method of delivery risk of loss shall pass to Buyer upon AFP’s delivery to the carrier. Any delivery dates shown are approximate only and AFP shall
have no liability for any delays in delivery. Any claims by Buyer for omissions or shortages in a shipment shall be waived unless AFP receives notice
thereof within 30 days after Buyer’s receipt of the shipment. In no event shall AFP be liable for consequential or special damages arising out of a delay in
or failure of delivery, including those damages arising out of such omissions or shortages.
ROUTING: The method of shipment and routing may be changed due to weight or size limitations and where experience indicates that the
best interest of the Buyers served in having the shipment arrive in good condition.
LIMITATION OF BUYER’S REMEDIES AND DAMAGES: AFP shall in no event be liable to the customer, any successors in interest
or any beneficiary or assignee of this contract for any consequential, incidental, indirect, special or punitive damages or back charges arising out of this
contract or any breach thereof, or any defect in, or failure of, or malfunction of any goods, whether based upon lost goodwill, lost profits or revenue,
interest, work stoppage, impairment of other goods, loss by reason of shutdown or non-operation, increased expenses of operation, loss of use of power
system, cost of purchase of replacement power or claims of customers for service interruption, whether or not such loss or damage is based on contract,
warranty, negligence, indemnity, strict liability or otherwise.
AFP’S LIABILITY (AND BUYER’S REMEDIES) ARISING FROM OR IN ANY
WAY CONNECTED WITH THE ITEMS SOLD OR THIS CONTRACT OR AFP’S NEGLIGENCE SHALL BE LIMITED TO THE
REPAIR OR REPLACEMENT OF THE ITEMS SOLD OR, IN AFP’S SOLE DISCRETION, REFUND OF THE PURCHASE PRICE
PAID BY BUYER. IN NO EVENT SHALL AFP BE LIABLE FOR (OR THE BUYER ENTITLED TO RECEIVE) ANY INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED
TO LOST PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ITEMS SOLD
HEREUNDER, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR
IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY.
TITLE: Title to the products of AFP sold hereunder shall remain with AFP until payment is made in full by Buyer. Such reservation of title is
for purposes of securing payment of the purchase price and shall not relieve Buyer of the duty to inspect the products upon receipt, to notify AFP of any
deficiencies or defects, and to exercise due care in the use, installation, operation, and maintenance of the products when on the premises of the Buyer or
under the control of the Buyer.
LIMITED WARRANTY: AFP only warrants that any products sold hereunder will be free from defects in material and workmanship
under conditions of normal use for a period of one year from the date of acceptance by Buyer. With respect to service and maintenance provided by AFP,
AFP warrants only that any products and services provided by AFP will be free from defects in material and workmanship under conditions of normal use
for a period of ninety days from the date of repair. With respect to products sold by AFP but manufactured by others, AFP makes no warranty but agrees
to assign to customer, to the extent possible, whatever warranty the manufacturer has given the AFP. Any and all AFP’s warranties are limited to repair or
replacement of the nonconforming product.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, AFP MAKES NO OTHER WARRANTY OR
GUARANTY OF ANY KIND AND DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
hereunder shall be limited to correcting any nonconformity in material or workmanship by suitable repair or, at the option of AFP by replacement of any
nonconforming part. AFP shall have no obligation to repair or replace any part unless written notice of Claim is received by AFP within the applicable
warranty period referred to above and the goods are returned at Buyer's expense to AFP’s facility, or other location selected by AFP. AFP shall not be
liable for any repairs, replacements, or adjustments made or any costs of labor preformed, by or at the direction of the Buyer without AFP’s prior written
approval. The remedies of the Buyer set forth herein are exclusive, and the total liability of AFP with respect to this contract and services furnished
hereunder, in connection with the performance or breach thereof, or from the manufacture, sale, delivery, installation, repair or technical direction covered
by or furnished under this contract, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, shall not exceed the purchase
price of the product upon which such liability is based.
NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES
WHATSOEVER ON ITEMS BUILT, OR ACQUIRED WHOLLY OR PARTIALLY, PURSUANT TO BUYER’S DESIGNS OR
CANCELLATIONS AND RESCHEDULES: Orders are not subject to cancellation or reschedule except with AFP’s written consent and
only upon terms which will indemnify AFP for any and all loss or damage, and are also subject to cancellation charges and price increases.
CHANGES IN ORDER: Changes, arrangement, or understandings not written into our original quotation or acknowledgment shall not be
binding unless separately approved by AFP in writing. Acceptance of any such requested modification or cancellation shall be at AFP’s discretion, and
shall be upon such terms and conditions as AFP may require.
SPECIAL TOOLING/BUYER’S PROPERTY: A tooling charge may be imposed for any special tooling, including without limitation,
dies, fixtures, molds and patterns, acquired to manufacture items manufactured exclusively for Buyer and sold pursuant to this contract. Such special
tooling shall be and remain AFP’s property notwithstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in apparatus
belonging to AFP which is utilized in the manufacture of the items sold hereunder, even if such apparatus has been specially converted or adapted for
such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, AFP shall have the right to alter, discard or otherwise
dispose of any special tooling or other property of Buyer’s in its sold discretion at any time. AFP shall not be responsible for any loss or damage to such
property while it is in their possession or control.
OWNERSHIP OF INTELLECTUAL PROPERTY: Title to the Intellectual Property, as that term is defined below, shall be and remain
the sole property of AFP. Title to all Intellectual Property owned, developed or conceived by the AFP during the term of this Agreement shall be the sole
property of the AFP. Intellectual Property conceived of and reduced to practice with input by both AFP and the Buyer shall be the property of AFP.
AFP shall retain all worldwide right, title and interest in and to the Intellectual Property, including all common law, statutory, treaty and convention rights.
“Intellectual Property” as used in this Agreement shall include all (i) information, concepts, ideas, discoveries, inventions (whether conceived or reduced
to practice, and whether or not patentable), patent, applications for patents, patents, patent disclosures awaiting filing determination, trade names, trade
dress, trademarks, service marks, registrations of trademarks and service marks, applications for registration of trademarks and service marks, copyrights,
registrations of copyrights and applications for registrations of copyrights and package designs; (ii) all trade secrets, know-how, methods, inventions,
processes, formulae, specifications, requirements, designs, databases, software, codes, business plans and strategies, marketing plans, developments,
background technology, and tangible property in any form whatsoever embodying such information and work in process or under development
embodying such information; and (iii) all rights under or in respect of the foregoing including, but not limited to, rights to sue for and remedies against
past, present and future infringements thereof, and rights of priority and protection of interests therein under the laws of any jurisdiction worldwide and all
tangible embodiments thereof and all enhancements, derivatives, and improvements thereof.
TAXES: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like
taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the items sold hereunder. If any such taxes must be paid
by AFP or if it is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Buyer agrees to pay all
such taxes or to reimburse AFP therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed by any taxing
authority, Buyer shall save AFP harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the
items are held to be taxable.
INDEMNITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS: Buyer shall defend and indemnify AFP
against allegations of infringement of U.S. patents, U.S. trademarks, copyrights, trade dress and trade secrets (hereinafter “Intellectual Property Rights”)
based on information provided by Buyer or for products delivered to Buyer by AFP based upon designs or requests specified in whole or part by Buyer,
including costs and expenses, including attorneys fees, incurred by AFP or judgments rendered against AFP as a result of any such claim.
FORCE MAJEURE: AFP does not assume the risk of and shall not be liable for delay or failure to perform any of AFP’s obligations by
reason of circumstances beyond reasonable control of AFP (hereinafter Events of Force Majeure). Events of Force Majeure shall include without
limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, floods, delays
or failures in delivery of carriers or suppliers, shortages of materials, acts of Buyer, war, and any other cause beyond AFP’s control.
ENTIRE AGREEMENT/GOVERNING LAW/VENUE SELECTION/LIMITATIONS ON SUITS: The terms and conditions set
forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by AFP in a writing signed by an
officer, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto.
This Agreement shall be governed in all respects by the law of the Commonwealth of Virginia and any suit or action arising out of this Agreement shall
be brought in a state court of competent jurisdiction located in Chesterfield County, Virginia. No suits or actions arising out of the sale of the items sold
hereunder or this Agreement may be brought by either party more than two (2) years after the cause of actions accrues.
INVALIDITY OF TERM/OR CONDITION: In the event that a court should rule any of the above terms or conditions to be invalid or
unenforceable, then the remaining terms and conditions of sale shall be enforced and binding as if the invalid or unenforceable term was not contained