Terms & Conditions of Sale
All Apogee SFS US, LLC (“Apogee SFS”) sales of Tubelite® products to any purchaser (“Buyer”) shall be governed by these TERMS AND CONDITIONS OF SALE (“TERMS”). Apogee SFS’s acceptance of Buyer’s purchase order is expressly conditioned on Buyer’s assent to these TERMS.
- Agreement. Apogee SFS expressly objects to, and rejects, any term or condition in Buyer’s purchase order or other Buyer document that differs from, is in addition to, or is inconsistent with these TERMS. Apogee SFS’s quotation, these TERMS, Apogee SFS’s Sales Order Acknowledgement, the current Tubelite® Price Book (“Price Book”), and any Tubelite® warranties issued by Apogee SFS in connection with Buyer’s order (collectively, the “Agreement”), shall constitute the entire agreement between Buyer and Apogee SFS as to the subject matter hereof and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written, with respect to such subject matter. The Agreement may not be modified or amended without Apogee SFS’s prior written acceptance. This Agreement shall become effective upon the date Apogee SFS accepts Buyer’s order.
- Orders and Cancellation; Drawings; Tooling.
A. All orders are subject to Apogee SFS’s final approval and acceptance. All orders are subject to a minimum charge of $100 NET. Buyer may not change or cancel an order, in whole or in part, without Apogee SFS’s prior written consent. If Buyer changes or cancels an order, in whole or in part, Buyer shall be responsible for and pay Apogee SFS’s expenses, costs, losses and damages resulting from such cancellation, including but not limited to, lost profits, minimum 20% restocking charge, costs of materials, scrap or transportation charges, and attorneys’ fees.B. Apogee SFS shall not be responsible for (i) any errors or omissions in drawings or specifications provided by Buyer in connection with Buyer’s order, or (ii) any errors or omissions by Apogee SFS in interpreting, using or dealing in any way with the drawings or specifications provided by Buyer.C. If Buyer’s order requires Apogee SFS to incur costs for special tooling or die(s), Buyer shall pay an additional charge and Apogee SFS will be the owner of all right, title and interest in such tooling or die(s).
D. Apogee SFS may require job specific details prior to Order Entry. Failure to submit required details as requested may prevent order processing.
E. Requests to add material to an existing order must be received within 48 hours from Apogee SFS’s acceptance of Buyer’s original order. Apogee SFS will review the request and may fulfill any such requests under a separate sales order.
- Prices; Quotations.
A. Prices for Tubelite® products are published in the Tubelite® Price Book, which is available to Buyers via the Customer Portal accessible at https://portal.tubeliteusa.com/. All prices are subject to change without prior notice. Apogee SFS may correct pricing errors at any time. If, for any reason, Buyer fails to take delivery within ninety (90) days of Apogee SFS’s receipt of Buyer’s order, Apogee SFS may, in its sole discretion, adjust the price of the order. Prices for Tubelite® products do not include sales tax, use or excise tax, or any other taxes or government fees. Buyer shall be liable for such taxes and fees, whether or not such amounts are invoiced by Apogee SFS. If Buyer’s order is tax exempt, Buyer must provide the exemption certificate to Apogee SFS at the time of order entry. If Buyer fails to do so, Buyer will be required to remit to Apogee SFS the full amount of all invoices and will be solely responsible for seeking any refunds from the appropriate governmental agencies.
B. If Apogee SFS issues a quotation to Buyer, such quotation shall be effective for a period of thirty (30) days from the date of the quotation regardless of the delivery date, and the quotation shall be considered revoked upon the expiration of the thirty (30) day period. In addition, Apogee SFS shall have the option to withdraw a quotation at any time prior to Buyer’s written acceptance of the quotation. At Apogee SFS’s sole option, any Buyer order that fails to strictly conform to Apogee SFS’s quotation may be cancelled by Apogee SFS, or in the alternative, Apogee SFS may adjust the pricing in the quotation.
- Payment Terms. Payment shall be due within thirty (30) days of the date of Apogee SFS’s invoice, with no retainage or set-off allowed. Buyer’s payment obligations shall not be conditioned on Buyer’s receipt of payment from any third party. All orders are subject to approval and continuation of credit by Apogee SFS. If Apogee SFS does not approve Buyer’s credit, or if at any time Apogee SFS, in its sole judgment, decides that the extension of further credit is unjustified due to Buyer’s financial condition, credit rating or default in any indebtedness or obligation owing to Apogee SFS, then Apogee SFS may refuse to accept new orders, require advance payment, ship C.O.D. (including additional freight charges as necessary), stop production of an order or suspend any or all of Buyer’s shipments. Any past-due amounts shall accrue interest at a rate of 5.0% per annum, or the maximum allowed by law, whichever is lower. If Buyer fails to make timely payment(s), Buyer shall reimburse Apogee SFS for all costs of collection, including reasonable attorneys’ fees.
- Delivery; Risk of Loss. Apogee SFS may ship the goods using methods, routes and carrier(s) of its choice. Shipping and delivery dates will be estimates only, and Apogee SFS shall not be bound by such dates. IN NO EVENT SHALL APOGEE SFS BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES ARISING OUT OF ANY DELAY OR FAILURE TO MEET ESTIMATED SHIPPING OR DELIVERY DATES. Title to the goods shall pass to Buyer at the time the goods leave the Apogee SFS facility or when picked up by a common carrier. Risk of loss shall transfer to Buyer in accordance with the applicable project shipment and delivery Incoterms. Buyer shall be responsible for unloading and inspecting the goods upon delivery. Buyer must notify Apogee SFS of any missing goods within 48 hours of delivery. Buyer shall notify Apogee SFS within 60 days of any claim that the goods are non-conforming and Apogee SFS shall be allowed a reasonable opportunity to inspect and cure any alleged non-conformity. Buyers requesting to pick up goods from any Apogee SFS location will be charged two percent (2%) of the order value (up to a maximum of $300) and must take possession of the goods within 48 hours of the scheduled pick-up date. If Buyer fails to take possession of the goods within 48 hours, Apogee SFS may ship the goods and Buyer will be responsible for any shipping charges.
- Warranties; Limitations; Remedies.
A. Upon Buyer’s final payment for product(s) delivered, the Tubelite® Limited Warranty for each applicable product category sold will become effective. Sample Tubelite® limited warranties are available in the Price Book. Apogee SFS shall not be responsible for, and will not accept, any other charge or expense from Buyer, including but not limited to, labor for any modification, removal, inspection or installation of the product(s). No product may be returned to Apogee SFS for credit, nor will Apogee SFS accept any remittance, deduction or back charges, without Apogee SFS’s prior written consent. Apogee SFS shall not be responsible for any failures resulting from improper handling or installation of the product(s). Apogee SFS’s limited warranties shall not be effective until Buyer has made payment in full. The Tubelite® Limited Warranty may not be modified in any manner unless authorized in writing by Apogee SFS. Any verbal representations made to Buyer by Apogee SFS or its agents or representatives shall not modify this Agreement or any Apogee SFS warranty. There are no third-party beneficiaries to any Apogee SFS warranty or other provision of this Agreement.B. APOGEE SFS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY OTHER OBLIGATION OR LIABILITY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APOGEE SFS LIMITED WARRANTY. IN NO EVENT SHALL APOGEE SFS BE LIABLE FOR BUYER’S OR ANY THIRD PARTY’S INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. ALTHOUGH APOGEE SFS MAY HAVE SUGGESTED A PRODUCT FOR AN APPLICATION OR DEVELOPED THE PRODUCT, IT IS THE BUYER’S RESPONSIBILITY TO TEST AND DETERMINE THE SUITABILITY OF THE PRODUCT FOR THE BUYER’S INTENDED USE AND PURPOSE. BUYER ASSUMES ALL RISK AND LIABILITY WHATSOEVER REGARDING SUCH SUITABILITY.C. Buyer’s sole and exclusive rights and remedies regarding products supplied by Apogee SFS under this Agreement are set forth in the applicable Apogee SFS limited warranty.
- Permits; Compliance. Apogee SFS shall not be responsible for any permits, inspections or licenses required for the installation or operation of any product(s) sold under this Agreement. Apogee SFS makes no representations or warranties that the product(s) sold hereunder will comply with, or conform to, any federal, state or local laws, ordinances, codes, standards or regulations. Buyer shall be responsible for such any and all such compliance and conformance.
- Limitations on Actions; Governing Law. Any claim made, or action commenced, by Buyer in connection with this Agreement must be brought within one (1) year from the date an order is delivered. In all respects, this Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan.
- Force Majeure. Apogee SFS shall not be responsible for its failure to perform any obligations to Buyer, or the delay in performance thereof, caused by any Force Majeure event, or other action beyond its reasonable control. “Force Majeure” will include, but not be limited to, acts of nature, floods, fire, transportation delays, power outages, supply shortages or unavailability, strikes or labor shortages, government actions, orders or restrictions wars, insurrections or terrorism. If the Force Majeure event continues for a period of time that makes performance by Apogee SFS impossible or impracticable, either Party may terminate this Agreement immediately upon the other party’s receipt of written notice to terminate.
- Limitation of Liability; Indemnity. Apogee SFS shall not be liable or responsible for any system or application design, either to Buyer or any third party. Under no circumstances shall Apogee SFS be liable to, or agree to indemnify Buyer or any third party for, any loss, costs, damage or expense (including attorneys’ fees) resulting from Buyer’s or any third party’s acts, omissions or conduct. Buyer shall defend, indemnify and hold Apogee SFS harmless from and against any claims, actions, damages, losses or expenses, including reasonable attorneys’ fees, incurred by Apogee SFS as a result of any breach by, or negligence of, Buyer related to this Agreement.
- Default; Termination. If Buyer fails to make payment or otherwise defaults in any material obligation hereunder, Apogee SFS may consider such failure or default to be an anticipatory breach or repudiation of any and all agreements with Buyer. In such event, Apogee SFS may cancel or terminate any and all outstanding orders or agreements with Buyer. Apogee SFS reserves the right to offset any amount due and owing from Buyer. Apogee SFS’s rights and remedies are cumulative and may be exercised at any time and in any way under applicable laws.
- No Waiver. No failure of Apogee SFS to exercise any right or remedy hereunder shall operate as a waiver or relinquishment thereof.