Terms & Conditions

General Terms and Conditions for the Sale of PRE-COMMERCIAL GOODS FOR PRODUCT DEVELOPMENT and the License of Intellectual Property

  1. Applicability.
    1. These terms and conditions of sale and license (these “Terms”) are the only terms governing the sale of the goods (“Goods”) and the license of related intellectual property by AVAPCO LLC (“AVAPCO”), to the entity buying the Goods and receiving a limited license to the IP (as defined in Section 4) (“Buyer”). If Buyer has not otherwise agreed to these Terms in a written instrument, Buyer’s acceptance of delivery of, or payment for, the Goods shall constitute Buyer’s agreement to these Terms. Any changes to these Terms and Conditions must be agreed to in writing by AVAPCO.
    2. Any quotation, confirmation of sale or invoice accompanying or incorporating these Terms, whether by attachment, specific reference or association with an on-line order, together with these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties with respect to the applicable sale of Goods and limited license of IP, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect thereto. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Shipment and Delivery of Goods.
    1. The Goods will be shipped by AVAPCO, FOB AVAPCO’s designated point of shipment, for delivery within a reasonable time after the receipt of Buyer’s order, subject to availability of finished Goods. AVAPCO shall not be liable for any delays, loss or damage in transit.
    2. Unless otherwise agreed in writing by the parties, AVAPCO shall ship the Goods to the Buyer location specified in the Buyer’s order (the “Delivery Point”) using AVAPCO’s standard methods for packaging and shipping such Goods. Buyer shall be deemed to have taken delivery of, and accepted, the Goods when the Goods have been delivered to the Delivery Point.
    3. AVAPCO may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.
    4. If for any reason Buyer fails to accept delivery of any of the Goods on the date of delivery at the Delivery Point, or if AVAPCO is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered and accepted by Buyer; and (iii) AVAPCO, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  3. Non-delivery.  Any liability of AVAPCO for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding to Buyer the Price paid for such Goods.
  4. Limited License of IP; Limitations on Use and Publicity.
    1. AVAPCO grants to Buyer, effective upon delivery of the Goods, a limited, non-transferrable, non-sublicensable, non-exclusive, revocable, royalty-free right and license, under U.S. Patents numbers 8,030,039, 8,038,842, 8,268,125, 8,585,863, 8,864,941, U.S. Patent Applications numbers 14/092,906, 14/092,908, 14/092,910, 14/584,593, 62/000,760, 62/009,189, 62/014,208, 62/015,565, 62/015,787, 62/016,372, 62/018,337, 62/069,417, 62/020,086, 62/068,823, 62/097,302, 62/087,387, 61/972,961, 62/016,526, 62/017,082, 62/017,665, 62/017,680, 62/040,465, 62/073,600, and continuations, continuations-in-part, divisionals, non-provisional applications, and foreign counterpart patents and patent applications thereof (collectively, the “IP”) to use the Goods for the limited purpose of non-commercial testing the Goods for suitability for use in Buyer’s proposed industry-specific application(s).
    2. Buyer shall not have the right to, and shall not: (i) use the Goods for any purpose whatsoever other than as permitted under Section 4(a); (ii) use the Goods in production of any products sold or transferred to any third party; (iii) resale transfer the Goods to any third person other than in destruction and secure disposal of the Goods in accordance with any applicable environmental laws and regulations; or (iv) manufacture or produce the Goods, or precursors thereof, from any feedstock in any location, it being expressly understood and agreed that the limited license herein in no way, notwithstanding anything else to the contrary, provides Buyer the right to practice any processes to produce Goods as claimed in the above-referenced patents or patent applications. Buyer specifically acknowledges and agrees that use of the Goods for any purpose other than as permitted under Section 4(a), such as (without limitation) in food products or other applications involving human or animal ingestion or other continued human or animal exposure to the chemical and physical properties of the Goods, could prove harmful or injurious to persons or property, and API shall have no liability with respect to any such unauthorized uses.
    3. If Buyer is acting as a third party purchasing agent and will not be the ultimate end user of the products Goods then the end user must be revealed to AVAPCO before the limited license granted under Section 4(a) become valid.
    4. Buyer shall not make any or publish any works, including (without limitation) by issuing a press release or other announcement, regarding the results of Buyer’s testing of the Goods or Buyer’s satisfaction or dissatisfaction with the Goods without giving AVAPCO 30 days prior notice to review such document.
  5. Title and Risk of Loss; Purchase Money Security Interest. Title and risk of loss pass to Buyer upon AVAPCO’s release of the Goods into the possession of the carrier at AVAPCO’s dock. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to AVAPCO a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.
  6. Indemnification. Buyer shall indemnify, defend and hold harmless AVAPCO from and against any and all damages, losses, claims, judgments, costs and expenses, including attorney fees, AVAPCO may incur as a result of: (a) Buyer’s breach of any of Buyer’s obligations under these Terms (including, without limitation, Buyer’s breach of Section 4); and (b) any third party’s claim related to the Goods or any use or misuse thereof, including claims made by the employees and other representatives of Buyer.
  7. Inspection and Rejection of Nonconforming Goods.
    1. Buyer shall inspect the Goods within five (5) calendar days after receipt at the Delivery Point (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies AVAPCO in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by AVAPCO. “Nonconforming Goods” means either: (i) Goods shipped that are different from the Goods identified in Buyer’s order; or (ii) Goods labeled or packaged incorrectly with respect to identity of contents.
    2. If Buyer timely notifies AVAPCO of any Nonconforming Goods, AVAPCO shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to AVAPCO’s facility located Thomaston, Georgia. If AVAPCO exercises its option to replace Nonconforming Goods, AVAPCO shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
    3. Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms to AVAPCO.
  8. Price.
    1. Buyer shall purchase the Goods and license the IP from AVAPCO at the price(s) (the “Price” or “Prices”) set forth in AVAPCO’s published price list in force as of the date of Buyer’s order.
    2. All Prices are exclusive of all sales, use, value-added and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, AVAPCO’s net income.
  9. Payment Terms.  Buyer shall make all payments hereunder by credit card, electronic payment, wire transfer or check and in US dollars. AVAPCO will not ship Goods until payment has been received.
  10. Limited Warranty.
    1. AVAPCO warrants that the Goods, when delivered, and for a period of ninety (90) days thereafter (“Warranty Period”), will be in substantial conformity with AVAPCO’s published documentation in effect as of the date of Buyer’s order and will be free from defects in materials and workmanship.
    2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE GOODS OR THE IP, INCLUDING (WITHOUT LIMITATION) ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; IRRESPECTIVE OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
    3. AVAPCO shall not be liable for any breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to AVAPCO within five (5) calendar days of the date Buyer discovers or should have discovered the defect; (ii) AVAPCO is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by AVAPCO) returns such Goods to AVAPCO’s place of business at AVAPCO’s cost for the examination to take place there; and (iii) AVAPCO verifies Buyer’s claim that the Goods are defective.
    4. AVAPCO shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow AVAPCO’s oral or written instructions as to the storage or use of the Goods; or (iii) Buyer alters the Goods without the prior written consent of AVAPCO’s.
    5. Subject to Section 10(d) and Section 10(e) above, with respect to any such Goods during the Warranty Period, AVAPCO shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if AVAPCO so requests, Buyer shall, at AVAPCO’s expense, return such Goods to AVAPCO.
    6. THE REMEDIES SET FORTH IN SECTION 10(f) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a). 
  11. Limitation of Liability.
    1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS GIVING RISE TO THE CLAIM.
    3. The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from AVAPCO’s fraudulent conduct or (ii) claims for death or bodily injury resulting from AVAPCO’s negligence or willful misconduct.
  12. Compliance with Law. Buyer shall comply with all laws, regulations and ordinances applicable to Buyer and its receipt and use of the Goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods and the limited license of the IP under these Terms. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. AVAPCO may terminate the Agreement that includes these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
  13. Termination. In addition to any remedies that may be provided under these Terms, AVAPCO may terminate the Agreement that incorporates these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) has not performed or complied with any of its obligations or restrictions under these Terms, in whole or in part; or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  14. Waiver, Amendment and Modification. No waiver by AVAPCO of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by AVAPCO. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. These Terms, as applied to any order forming part of any Agreement, may only be amended or modified by mutual agreement of AVAPCO and Buyer in a signed, written amendment.
  15. Confidential Information. All non-public, confidential or proprietary information of AVAPCO, including but not limited to specifications, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by AVAPCO to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms (“Confidential Information”) is the proprietary and confidential information of AVAPCO, and (if any Confidential Information has been conveyed to Buyer) will be used by Buyer solely in performing tests related to the Goods. Buyer shall protect Confidential Information from unauthorized access or use by any third party through the exercise of at least a reasonable degree of care, and shall not disclose Confidential Information to any third party unless authorized in advance by AVAPCO in writing. Upon AVAPCO’s request, Buyer shall promptly return all documents and other materials received from AVAPCO. AVAPCO shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party having the right to disclose the same.  If any confidentiality, non-disclosure or other agreement regarding Confidential Information is already in effect between Buyer and AVAPCO or its affiliates apart from these Terms, these Terms shall not affect such agreement, which will remain in full force and effect in accordance with its terms.
  16. Force Majeure. AVAPCO shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement incorporating these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of AVAPCO, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement incorporating these Terms without the prior written consent of AVAPCO. Any purported assignment or delegation in violation of this Section 17 is null and void. No permitted assignment or delegation relieves Buyer of any of its obligations under these Terms.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  19. No Third-Party Beneficiaries. The Agreement incorporating these Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  20. Governing Law. All matters arising out of or relating to the Agreement incorporating these Terms is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.
  21. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to these Terms or the Agreement incorporating these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  22. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the order or sales confirmation forming part of the applicable Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), by fax (with confirmation of transmission) or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only: (a) upon receipt of the receiving party as evidenced by the records of the courier, the fax sender, or the U.S. Postal Service; and (b) if the party giving the Notice has complied with the requirements of this Section.
  23. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
  24. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement incorporating these Terms, including, but not limited to, Sections 6 (Indemnification), 10 (Limited Warranty), 11 (Limitation of Liability), 12 (Compliance with Laws), 15 (Confidential Information), 20 (Governing Law), 21 (Submission to Jurisdiction) and 24 (Survival).