THIS CUSTOMER SUPPLY AGREEMENT
In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
- SIGNED AGREEMENT AS A PREQUISITE
Customer agrees and acknowledges that entering this Agreement and all supplements or amendments presented by AP are an absolute prerequisite to any entitlement to a quote, information, actual sales or any right to represent to any third party any right to use an AP Products.
- SALES POLICIES
AP Products will be sold to authorized customers subject to t he specific terms and conditions of each individual sale and this Agreement. AP may in its sole discretion require additional security, guaranties and/or information from Customer. AP reserves the right without liability to postpone deliveries until AP’s terms are satisfied. If Customer does not comply with AP’s required terms within the time identified in writing by AP, it reserves the right to postpone or withhold deliveries of materials until the terms are satisfied. Sales Reps cannot change terms. Any changes must be approved in writing by AP’s President. Any payments not received by the due date are subject to late fees and collection procedures as outlined in invoices or other billing documentation. This agreement does not create any absolute right to purchase products from AP. AP in its sole discretion shall have the right to accept or reject orders received by Customers. AP disclaims any liability, which may arise from or out of the postponement or withholding of deliveries or refusal to accept orders or rejected orders from the applicator under the terms herein. Neither Party shall be responsible for delays or failure to perform hereunder, except for payment of monies when due, if caused by fire, floods, strikes, labor disputes, accidents, acts of war, priorities required or imposed by federal, state or local law, regulations or ordinances or for any other cause beyond its control. Pricing and other terms of any particular sale shall be dictated by the quote provided by AP on the request of Customer.
- TRAINING AND USE OF AP PRODUCTS
At AP’s option, it may train Customer on the use and application of any AP Product. If AP requires such training, Customer must complete the training as a prerequisite of any shipment of AP Products related to such training. With or without training, Customer agrees to use AP Products only for the intended purpose and use as dictated by all documentation, inserts or instructions included with the AP Products sold to Customer. Customer agrees and acknowledges that any use of AP Products that does not comply with intended purpose or use or failure to follow all procedures provide in any training, including modification of the products, improper installation or other misuse shall immediately cause all warranties, representations and promises contained herein or in any other document to become null and void and unenforceable.
- STANDARDS OF USE
a. Laws and Codes
Customer agrees to comply with all governing laws requiring contractor registration, licensing, safety, installation and insurance that apply to any the project is located in which AP Product will be used.
b. Manuals, Drawings and Specifications. Subject to the limitations on the use and confidentiality provided herein, AP will provide the Customer copies of the manuals, drawings and specifications that it deems relevant for any AP Products sold under this Agreement. Customer agrees to comply and follow all requirements, procedures and instructions outlined in manuals, drawings and specifications. AP may amend the manuals, drawings and specifications, including changes that may affect use, installation, and other requirements. Customer at its sole discretion and risk may use of any method, material, product or other item in connection with the installation, use or operation of any AP Product; however, such actions will void any and all representations and warranties associated with the AP Product. In addition, AP makes no representation, promise or warranty of the compatibility of any AP product sold with any other non- AP product unless Customer gets confirmation in writing from AP of such compatibility. Failure to get the required written approvals and/or use of AP Products with other non-approved products shall immediately void all warranties, promises and representations associated with any AP Product sold under this Agreement.
c. Customer agrees to promptly furnish AP with all information requested by the AP allowing sufficient time for review prior to approving the shipment of materials. Prior to issuing any warranty, AP reserves the right to inspect any installation. Nothing hereunder shall be construed as AP providing a labor warranty of any kind. All charges for materials and warranties must be paid in full prior to issuance of the warranty, unless otherwise agreed to by AP with the Customer.
- MARKETING and ADVERTISING
Customer is not allowed to advertise or use any AP promotional materials without the express written permission of AP. Any use of logos and or brand specific marketing, trademarked or not, is the exclusive property of AP. The use of such items does not convey any rights to such property. From time to time AP may elect to modify logos and other image related items. AP may require and Customer agrees that its use of such property be updated as well to conform to the updated image. Nothing about AP’s permission to use any logos, trademark or other marketing material shall constitute a license or transfer of any intellectual property of AP.
- CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION
a. Confidentiality. In exchange for all information provided by AP and the right to buy AP Products, Customer agrees that all such pricing, drawings, technical data, and any other information related to any AP Product is confidential and proprietary information of AP (the “Confidential Information”) and has not (a) become generally known or available to the public; (b) was known by the Customer before receiving such information from AP; (c) is known by or available to the Customer from a source other than AP; (d) been independently developed by the Customer Party without use of or reference to the Confidential Information by persons who had no access to the Confidential Information. Customer agrees and acknowledges the Confidential Information described by this paragraph is both confidential and proprietary in nature and that AP is the owner of the Confidential Information and all such information constitutes a trade secret of AP. Customer agrees that it will contest the confidential and proprietary nature of the Confidential Information
b. Non-Disclosure. Customer represents, warrants and covenants to AP that it will: (a) continuously hold AP’s Confidential Information in the strictest confidence and will not disclose any of AP’s Confidential Information to any person or entity whatsoever, without the prior express written consent, signed by an authorized agent of AP, (b) take all steps necessary to ensure that any of AP’s Confidential Information is held in the strictest confidence and that the terms and conditions of this Agreement are strictly adhered to by the Receiving Party and its employees and agents, (c) only disclose AP’s Confidential Information to its responsible employees and professional advisers with a bona fide need to know such Confidential Information, but only if such employees are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information; (d) not, and shall not allow any person to whom any of the Confidential Information is directly or indirectly disclosed to, make, have made, whether for its own purposes or for any other, any copies of the Confidential Information, or any part of the contents thereof; (e) the indemnify AP against any loss or liability resulting from, or arising in connection with, any unauthorized use or disclosure of the AP’s Confidential Information by Customer or its directors, managers, officers, employees or other representatives; and (f) promptly return to AP all copies of the Confidential Information, will destroy all notes, abstracts and other documents that contain any of AP’s Confidential Information, and will provide AP a written certification of an officer of Customer that it has done so, within 10 days after the written request of AP. The obligations established under this paragraph shall survive the termination of this Agreement and the termination of any negotiations between the Parties contemplated herein. In providing the Confidential Information under this Agreement, AP makes no representation, either express or implied, as to its adequacy, sufficiency, or freedom from defect of any kind, including freedom from any patent infringement that may result from the use of such Confidential Information. Customer acknowledges that it assumes full responsibility for all conclusions derived from AP’s Confidential Information.
c. Ownership of Intellectual Property and Confidential Information. AP retains all rights and remedies with respect to its Confidential Information afforded it under the patent and other laws of the United States and all applicable state law both during and after the term of this Agreement, including without limitation any trade secret or other laws designed to protect proprietary or confidential information. Nothing in this Agreement, nor any action taken by Customer, including, without limitation, any payment of monies shall be construed to convey to Customer any right, title or interest in the AP’s Confidential Information, or any license to use, sell, exploit, copy or further develop in any way any of the AP’s Confidential Information. No license is granted or shall be implied under the terms of this Agreement. Nothing in this Agreement requires the disclosure of any of AP’s Confidential Information, which shall be disclosed, if at all, solely at AP’s option. Customer acknowledges and agrees that it has no right to make use of any of AP’s Confidential Information in any way other than the evaluation, proper installation and use and technical specifications for the proper installation and use of AP Products and cannot be used for any other purpose.
d. Non-Circumvention. During the term of this Agreement and at any time thereafter for a period of three (3) years, Customer will not make any contact, supply or deal with any legal entity or individual introduced or disclosed to it by the other Party AP uses for supply of goods or products or design services, or any component or part of any product or service discussed as part of the parties’ negotiations without the express, written permission of the other Party subject to the exceptions listed below. Customer agrees that it will not circumvent, or attempt to circumvent, AP for the purpose of depriving AP of compensation, clients, customers or potential customers with respect to the items and issues covered by this Agreement, or between AP and an individual or entity identified or introduced by AP to the Customer.
e. Remedies and Enforcement. Customer acknowledges that the unauthorized use or disclosure of AP’s Confidential Information or violation of the Non-Circumvent would cause irreparable harm to AP. Accordingly, Customer agrees that AP will have the right to obtain an immediate injunction against any breach of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
- WARRANTY, GUARANTEES AND INDEMNIFICATIONS
All AP products sold to Customer are sold with the limited warranty requested by Customer and issued under a separate document or disclosed on AP’s website. No other warranty, including all implied warranties imposed by law and other oral guaranty or promise, shall apply or come with the AP Products sold. To the extent permitted by law, AP disclaims any and all warranties, whether express or implied, with the AP Products it sells to Customer except for the warranties described herein. Customer agrees to indemnify, defend and hold AP and its agents and employees harmless from and against all claims, demands, obligations, and liabilities of any nature whatsoever, and all related costs and expenses (including reasonable attorneys’ fees), resulting from or related to any violation of this Agreement by Customer.
- NOTICE, TERM AND MISCELLANEOUS
a. Notices. All notices required by this Agreement will be in writing. They may be sent by certified or registered mail, postage prepaid and return receipt requested to the address listed by each party’s signature. They may be delivered personally and receipted.
b. Term. The term of this Agreement shall be for a period of twelve (12) months from the Effective Date. The term shall automatically renew for successive twelve (12) month periods unless either party provides written notice of its desire to terminate the contract at least thirty (30) days before the end of the initial or any successive term.
c. No Partnership or Joint Venture. Nothing about this Agreement should be construed to create a joint venture, partnership or agency relationship between AP and Customer.
d. Construction. This document is the entire agreement between the parties. It may not be modified, supplemented or amended in writing signed by the parties or issued by AP. This document supersedes all communications and negotiations between the parties that relate to the subject matter of this Agreement. All words in this Agreement include any number or gender as the context or sense of this Agreement requires. If any part of this Agreement is declared invalid, those declarations will not affect the validity of the remaining portion, which will remain in full force and effect as if this Agreement had been executed with the invalid portion omitted. The parties declare their intention that they would have executed the remaining portion of this Agreement without including any part, parts, or portion, which may be declared invalid in the future.
e. Enforcement and Choice of Law. The prevailing party in any suit, or action to enforce this Agreement will recover its court costs and reasonable attorney fees, which shall be set by the court. This Agreement shall be governed by the laws of the State of Texas, regardless of any conflict of law principles or rules. Customer consents venue for all disputes in Tarrant County, Texas.