STANDARD TERMS AND CONDITIONS OF SALE

Amano Pioneer Eclipse Corporation

Sparta, NC 28675

Legal Effect:

The Terms and Conditions of Sale as stated herein are binding upon Amano Pioneer Eclipse Corporation (“APEC”), on the one hand, and APEC distributors as well as any customers purchasing directly from APEC (collectively, “Buyer”), on the other hand. The sale of goods and services by APEC is expressly conditioned on Buyer’s acceptance and agreement to these terms and conditions. By placing an order for a product with APEC, Buyer agrees, acknowledges and represents that APEC’s order acknowledgment and these terms and conditions form the complete and exclusive statement of the agreement between the parties (except, as applicable, as supplemented by the terms of any Distributor Agreement, but in the event of any irreconcilable conflict these Terms and Conditions of Sale shall control) and may not be modified, supplemented, explained or waived by alleged oral statements or so-called parole evidence, Buyer’s purchase order, a course of dealing, APEC’s performance or delivery, or in any other way except in writing signed by an authorized representative of APEC. These terms are intended to cover all activity of APEC and Buyer hereunder including sales and use of products, parts and work and all related matters (references to products include parts and references to work including any construction, installation and start-up).  Any references by APEC to Buyer’s specifications and similar requirements are only to describe the products and work covered hereby and no warranties or other terms therein shall have any force or effect. Catalogs, circulars and similar pamphlets from APEC are issued for general information purposes only and shall not be deemed to modify the provisions hereof.

Application of Uniform Commercial Code:

The agreement formed hereby, and the language herein shall be construed and enforced under the Uniform Commercial Code as in effect in the state of North Carolina applying North Carolina law without applying choice of law principles (Sparta, North Carolina being the home office location of Amano Pioneer Eclipse Corporation).

Taxes

Any sales or use taxes or other similar type taxes imposed on a sale or on a transaction are not included in the purchase price. Such taxes shall be billed separately to the Buyer. APEC will accept a valid exemption certificate from the Buyer, if applicable; however, if an exemption certificate previously accepted is not recognized by the governmental taxing authority involved and APEC is required to pay the tax covered by such exemption certificate, Buyer agrees to promptly reimburse APEC for the taxes paid.

PERFORMANCE, INSPECTION, ACCEPTANCE

1. Unless APEC specifically assumes installation, construction or start-up responsibility, all products shall be finally inspected by the Buyer and deemed accepted within twenty (20) days after receipt at point of delivery. Products not covered by the foregoing and all work shall be finally inspected by the Buyer and accepted within twenty (20) days after completion of the applicable work by APEC. All claims whatsoever by Buyer (including claims for shortages) excepting only those provided for under the WARRANTY AND LIMITATION OF LIABILITY and PATENTS clauses hereof must be asserted in writing by Buyer within said twenty (20) days period or they are waived. If the contract involves partial performances, all such claims must be asserted within said twenty (20) day period for each partial performance. There shall be no revocation of acceptance. Rejection may be only for defects substantially impairing the value of products or work, and Buyer’s remedy for lesser defects shall be those provided for under the WARRANTY AND LIMITATION OF LIABILITY clause.
2. APEC shall not be responsible for non-performance or delay in performance occasioned by any causes beyond APEC’s reasonable control, including, but not limited, labor difficulties, delays of vendors or carriers, fires, governmental actions and material shortages. Any delays so occasioned shall affect a corresponding extension of APEC’s performance dates which are, in any event, understood to be approximate. In no event shall Buyer be entitled to incidental or consequential damages for late performance or a failure to perform.
3. If Buyer wrongfully rejects or revokes acceptance of items tendered under this agreement or fails to make a payment due on or before delivery, or repudiates this agreement, APEC shall have a right to recover as damages the price as stated therein. Under recovery of the price, the items involved shall become the property of the Buyer.

    

   PROHIBITION ON UNAUTHORIZED RESALE

   Buyer shall not sell, transfer or otherwise provide any products purchased from APEC to any third party unless (1) the Buyer has signed and is in compliance with an APEC Distributor Agreement, or (2) APEC otherwise approves by a prior, written authorization of APEC. 

   TITLE AND RISK OF LOSS

   Full risk of loss (including transportation delays and losses) shall pass to the Buyer upon delivery of products to the f.o.b. point. However, APEC retains title, for security purposes only to all products until paid in full in cash and APEC may, at APEC’s option, repossess the same, upon Buyer’s default in payment hereunder, and charge Buyer with any deficiency.
   

   PAYMENT TERMS

   Payment is due in accordance with the terms appearing on the invoice.  Customer agrees to pay a finance charge and attorneys’ fees incurred on any past due amounts.  The finance charge shall be computed at either (1) the rate of 1.5% per month, which is an annual percentage rate of 18%; or (2) the maximum rate allowed by law, whichever is less.  Attorneys’ fees incurred in collecting amounts due shall be calculated and payable as 15% of the outstanding balance owing.
   

   WARRANTIES AND LIMITATION OF LIABILITY

   Chemical Products

   Warranty Policy for Chemical Products

   All APEC chemical products are guaranteed to be free of defects in materials and workmanship for one year from the date of manufacture. 

   Specific Exclusions from Chemical Products Coverage

   Buyer hereby acknowledges and agrees, though free from defects in material and workmanship at the time of shipment, that the useful life of goods manufactured or sold by APEC will vary depending upon the Buyer’s frequency of use, application, and other factors with regard to such goods. In that respect, APEC does not warrant against: (a) defects caused by failure to provide suitable installation environment for the product, (b) damage caused by use of the product for purposes other than those for which it was purchased, (c) damage caused by disasters such as fire, flood, wind, and lightning, (d) damage caused by unauthorized modification of the product, (e) any other abuse or misuse by Buyer, including improper installation, handling or storage; or (f) goods which have been damaged or altered by Buyer or its customer. 

   Conditions Precedent to Chemical Product Warranty Coverage

   Notwithstanding any other provision to the contrary, APEC specifically does not warrant the useful life of any product. Any defect in materials or workmanship (or, if applicable, a nonconformity to specifications) must be noted within one year of the date of manufacture of the chemical product regardless of the date of discovery, and APEC must promptly be notified in writing within 30 days, which notification in any event must be received no later than 12 months from the date of manufacture. Warranty coverage for chemicals starts on the date of manufacture. The date of manufacture is noted on each chemical bottle. Please contact your sales representative for further assistance as necessary in locating such date of manufacture. Any unused portion must be returned for inspection and testing within said one year of the date of manufacture. The detailed procedures for “Warranty Based Returns” are set forth in the Repair and Return Policy.
   

   Machine Products

   Warranty Policy for Machine Products

   All of APEC’s machine products are guaranteed to be free of defects in materials and workmanship for one year from the date of purchase by the original end-user owner. Warranty coverage for machines starts on the date of purchase by the original end-user. As used herein, an “original end-user” is typically a contractor or other regular user of the machine. Note: certain of APEC’s machines carry longer warranty periods. See the specific warranty accompanying the specific machine for any extended warranty period that may be applicable. 

   Parts repaired or replaced under warranty are warranted only during the balance of the original warranty period. All defective parts replaced under warranty become the property of APEC.
   

   Specific Exclusions from Machine Warranty Coverage

   Buyer hereby acknowledges and agrees, though free from defects in material and workmanship at the time of shipment, that the useful life of goods manufactured or sold by APEC will vary depending upon the Buyer’s frequency of use, application, and other factors with regard to such goods. In that respect, APEC does not warrant against: (a) defects caused by failure to provide suitable installation environment for the product, (b) damage caused by use of the product for purposes other than those for which it was purchased, (c) damage caused by disasters such as fire, flood, wind, and lightning, (d) damage caused by unauthorized attachments or modification of the product, (e) any other abuse or misuse by Buyer, including improper installation, handling or storage; or (f) goods which have been damaged or altered by Buyer or its customer. Moreover, the warranty also does not cover the following:

• Expendable wear items and parts that fail through normal wear by reason of their characteristics (cords, brushes, pad holder, wheels, or other consumable parts);
• Parts affected by misuse, neglect, abuse, accidents, damage in transit, overloading the capacity of the machine, failure due to lack of proper maintenance or care as described in the operating and maintenance instructions;
• Minor adjustments, such as tightening of screws or bolts not connected with the replacement of parts;
• Repairs or alterations by an organization other than the factory or an authorized APEC service center. The foregoing will void any APEC warranty as to the parts or systems repaired or altered by a non-authorized organization.

   

  Conditions Precedent to Machine Product Warranty Coverage

  In order to qualify for warranty coverage, the following conditions must exist:
  

• The machine must be registered within 30 days from the time of purchase on a form provided by APEC. The APEC distributor is responsible for the registration of the machine.
• The machine must have been purchased from APEC or from or through an authorized distributor of APEC unless such a requirement is unenforceable under applicable law. 
• The warranty extends to the original end-use purchaser only and is not transferable to subsequent owners.

   

  Parts and Accessories (herein “Parts”)

  Warranty Policy for Parts

  All of APEC’s parts are guaranteed to be free of defects in materials and workmanship for ninety (90) days from the date of purchase by the original end-user owner. As used herein, an “original end-user” is typically a contractor or other regular user of the machine.
  

  Parts repaired or replaced under warranty are warranted only during the balance of the original warranty period. All defective Parts replaced under warranty become the property of APEC.
  

  Specific Exclusions from Parts Warranty Coverage

  Buyer hereby acknowledges and agrees, though free from defects in material and workmanship at the time of shipment, that the useful life of goods manufactured or sold by APEC will vary depending upon the Buyer’s frequency of use, application, and other factors with regard to such goods. In that respect, APEC does not warrant: (a) defects caused by failure to provide suitable installation environment for the product, (b) damage caused by use of the product for purposes other than those for which it was purchased, (c) damage caused by disasters such as fire, flood, wind, and lightning, (d) damage caused by unauthorized attachments or modification of the product, (e) any other abuse or misuse by Buyer, including improper installation, handling or storage; or (f) goods which have been damaged or altered by Buyer or its customer. Moreover, the warranty also does not cover the following:

• Expendable wear items and parts that fail through normal wear by reason of their characteristics (cords, brushes, pad holder, wheels, or other consumable parts);
• Parts affected by misuse, neglect, abuse, accidents, damage in transit, overloading the capacity of the machine, failure due to lack of proper maintenance or care as described in the operating and maintenance instructions;
• Minor adjustments, such as tightening of screws or bolts not connected with the replacement of parts;
• Repairs or alterations by an organization other than the factory or an authorized APEC service center. The foregoing will void any APEC warranty as to the Parts or systems repaired or altered by a non-authorized organization.

   

  Conditions Precedent to Parts Warranty Coverage:

  In order to qualify for warranty coverage, the following conditions must exist:
  

• The Part must have been purchased from APEC or from or through an authorized distributor of APEC unless such a requirement is unenforceable under applicable law. 
• The warranty extends to the original end-use purchaser only and is not transferable to subsequent owners.
  

Warranty Claim Procedure

Warranty claims forms should be filled out by going to APEC’s website at www.pioneereclipse.com or americansanders.com The form can also be printed and faxed to 1-800-949-2914 or e-mailed to [email protected]. All returns require a return authorization number (RAN). 

The Repair and Return Policy sets forth the required procedure and information for returns.

NOTE: Freight damage is the responsibility of the freight company and not a warrantable item.

Products Involving Work (where applicable)

APEC warrants that its work (including installation, construction and start-up) when agreed upon and performed, will meet all applicable specifications and other specific work requirements (including those of performance), if any, as agreed to in writing by the parties. All claims when APEC specifically assumes installation, construction or start-up responsibility must be made in writing immediately upon discovery and in any event, within one (1) year from completion of the applicable work by APEC; provided, however, notwithstanding anything herein to the contrary all claims must be made in writing no later than eighteen (18) months after project initiation.

FURTHER LIMITATIONS ON WARRANTY

THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE LIMITED WARRANTIES STATED HEREIN. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO AN IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE EXCEPT AS EXPRESSLY STATED HEREIN. ANY STATUTORY IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT ARE IMPOSED BY LAW DESPITE THE EXPRESS LIMITATION ON WARRANTIES ABOVE, ARE EXPRESSLY LIMITED TO THE DURATION OF THE WRITTEN WARRANTY. BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE REMEDIES PROVIDED UNDER THIS STANDARD TERMS AND CONDITIONS OF SALEARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO BUYER EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND REMEDIES PERMITTED UNDER THE PERFORMANCE, INSPECTION, ACCEPTANCE CLAUSE AND THE PATENTS CLAUSE HEREOF. THE FOREGOING IS BUYER’S EXCLUSIVE REMEDY AGAINST APEC FOR ALL CLAIMS ARISING HEREUNDER OR RELATING HERETO WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES.  BUYER’S FAILURE TO SUBMIT A CLAIM AS PROVIDED ABOVE SHALL SPECIFICALLY WAIVE ALL CLAIMS FOR DAMAGES OR OTHER RELIEF INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON LATENT DEFECTS. APEC DISCLAIMS ANY RESPONSIBILITY FOR LOSS OF USE OR TIME OF THE SUBJECT PRODUCTS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS INCLUDES, BUT NOT LIMITED TO INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING, PERFORMANCE, USE OF OR INABILITY TO USE THE PRODUCTS. ANY EXTENSIONS OF OR MODIFICATIONS MADE TO ANY WARRANTY, INCLUDING ANY EXPRESS WARRANTIES BY A DEALER/ DISTRIBUTOR OF APEC, ARE THE SOLE RESPONSIBILITY OF SUCH DEALER/DISTRIBUTOR.  ANY ACTION BY BUYER ARISING HEREUNDER OR RELATING HERETO, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR IT SHALL BE BARRED.

QUALIFICATION AS TO CERTIFICATIONS

In the event certifications are required, certifications are based on adherence to rigid fabrication, assembly and test procedures during production at our manufacturing facility and attest to the condition of the product at the time for shipment. Any disassembly, modifications, testing, tampering or any inadequate storage of products covered by the certifications will void the certifications.  Should disassembly or resetting of the product be necessary, such work must be conducted in the presence of, and under procedures approved by APEC in order to maintain validity of the certifications.

PATENTS

APEC agrees to assume the defense of any suit for infringement of United States patents brought against Buyer to the extent such suit charges infringement of any apparatus or product claim by APEC’s product in and of itself, provided (i) said product is built entirely to APEC’s design, (ii) Buyer notifies APEC in writing of the filing of such suit within ten (10) days after the service of process thereof, and (iii) APEC is given complete control of the defense of such suit, including the right to defend, settle and make changes to the product for the purpose of avoiding infringement.  APEC assumes no responsibility for charges of infringement of any process or method claims, unless infringement of such claims is the result of following specific instructions furnished by APEC.

SPECIAL TOOLING

Notwithstanding any tool, die or pattern charges or amortization in connection herewith, all special tooling and related items shall be and remain the property of APEC. 

COMPLIANCE WITH LAWS

Any proposed terms or conditions contrary to U.S. laws, rules and regulations are expressly rejected and will not apply to this transaction. Buyer shall not do anything that would cause APEC to be in breach of applicable, rules and regulations and shall protect, indemnify and hold harmless APEC from any fines, damages, costs, losses, liabilities, penalties and expenses incurred by APEC as a result of the errors, mistakes, failures or omissions of Buyer to comply with these terms and conditions of sale.

NOTICE

Amano Pioneer Eclipse Corporation values highly the confidence and goodwill of its customers and suppliers. We offer our products only on their merit and expect our customers to judge and purchase our products and services solely on the basis of quality, price, delivery and service.  Likewise, Amano Pioneer Eclipse Corporation buys only on merit, and we judge and purchase solely on the basis of quality, price, delivery and service.  This Amano Pioneer Eclipse Corporation policy applies in all relationships with our customers and suppliers.

Revised 10/19