TERMS EXCLUSIVE: The terms and conditions of the purchase order to which these TERMS AND CONDITIONS OF SALE (these “Terms and Conditions”) relate or are attached (each, an “Order”), are exclusive and represent the full and final agreement of Technicote, Inc., an Ohio corporation (“Technicote”) and the Purchaser as they relate to the goods, materials, services or labor covered in the Order (all, whether or not tangible property or goods, the “Products”), and may not be added to, modified, superseded or altered except by written agreement or modification signed by Technicote’s authorized representative, notwithstanding any additional or other proposals, terms and conditions which may now or in the future appear on the Order or other forms (notification of objection thereto being given hereby), in whatever form transmitted, and notwithstanding any shipment of Products, acceptance of payments or other similar acts of Technicote. References to “this agreement” mean the Credit Application and Account Agreement and these Terms and Conditions, collectively.
CONTRACT: An Order may be submitted to Technicote in writing (which will include via an electronic transmission) or orally, provided, however, that if Purchaser fails to provide a written Order (a) within ten (10) days of an oral Order or (b) before shipment of the Order, whichever is earlier, then Product descriptions, quantities, specifications, etc., as set forth in Technicote’s acknowledgement, acceptance and/or invoice, shall be conclusive and binding. Each Order is subject to credit approval and acceptance by Technicote. An Order shall be deemed to have been accepted by Technicote upon the first to occur of the following: (i) Technicote’s first shipment or other tender of the Order or (ii) written acceptance by Technicote.
PERMISSIBLE VARIATIONS: Technicote has the right, prior to the delivery of Products to Purchaser and without the giving of notice to Purchaser, to make any changes in the composition, fabrication or design of the Products which, in the opinion of Technicote, do not affect the general characteristics or properties of the Products. In addition, Technicote may make any change in the Products, whether of quality or quantity, which is within governmental or professional standards or specifications applicable at the time of manufacture without giving notice to Purchaser. Purchaser will accept any Products which may incorporate any changes referred in this Section.
PRICES: Prices for Products are quoted and payable in U.S. dollars (“USD”). Prices stated in general price lists are subject to change without prior notice, at Technicote’s sole discretion. Prices that are provided in a specific quotation will remain firm for thirty (30) days of the issued date of the written quotation. All taxes (including, without limitation, sales, use, stamp, value added and other taxes), fees, charges and assessments by whomsoever levied on or with respect to the Products, and whether levied against Purchaser or Technicote, are for Purchaser’s account and, unless invoiced, shall be paid by Purchaser directly to the appropriate governmental agency. Prices for Products are per MSI unless otherwise agreed to by Technicote in writing.
SHIPPING TERMS: Delivery of Products to Canada, the United States and Mexico shall be F.O.B. (as defined in the Uniform Commercial Code as in effect in the State of Ohio) Technicote’s plant of manufacture. Delivery of Products outside of Canada, United States and Mexico shall be Ex Works (as defined by INCOTERMS 2000) Technicote’s plant of manufacture. All transportation expenses, freight, insurance and duties shall be as agreed to between Technicote and Purchaser, and risk of delay, loss or damage incurred in transit shall be borne by Purchaser, who shall be responsible to file any such claims with the relevant carriers or insurers. Upon tender of delivery, title shall pass to Purchaser, subject to Technicote’s right of stoppage in transit and to Technicote’s security interest in the Products, as set forth in Section 7. If the Products are held by Technicote subject to receiving instructions from Purchaser or in any case where Technicote, in its sole discretion, determines any part of the Products should be held for Purchaser’s account, Technicote may invoice the Products, and Purchaser agrees to make payment in accordance with this agreement. Products invoiced and held at any location by Technicote will be held at Purchaser’s risk, and Technicote may charge for (but is not obligated to carry) insurance and storage. If Purchaser has declared or manifested an intention not to accept delivery in accordance with this agreement, no tender will be necessary, but Technicote may, at its option, give notice to Purchaser that Technicote is ready and willing to deliver and such notice will constitute a valid tender of delivery.
INSPECTION/ACCEPTANCE: Each shipment shall be inspected by Purchaser for observable damage and/or non-conformity at the time of delivery of the Products. Failure to so inspect shall constitute a waiver of Purchaser’s rights of inspection and shall constitute an unqualified acceptance of the Products. If, after such inspection, Purchaser attempts to reject any Products, Purchaser shall fully specify all claimed damage or non-conformity in writing in a notice of rejection sent to Technicote within five (5) days of delivery of the Products. Purchaser’s failure to so specify shall constitute a waiver of that damage or non-conformity. Partial deliveries shall be accepted by Purchaser and paid for according to these Terms and Conditions.
PAYMENT/SECURITY INTEREST: Technicote may, at its option, cancel and/or sell any unshipped Products should Purchaser fail to fulfill the complete terms of payment. Purchaser will have no right to offset any amounts against any payment or other obligation which Technicote may owe to Purchaser. Technicote hereby reserves a security interest in the Products to secure Purchaser’s payment of the purchase price and any other amounts owed by Purchaser, and Purchaser agrees that Technicote may (but is not obligated to) take such action as Technicote deems advisable to evidence and perfect such interest and that Purchaser will cooperate with Technicote in the taking of such actions.
LEAD TIMES: Estimated lead times, if specified, are approximate only and are not guaranteed. Failure to ship on or near the estimated date shall not entitle Purchaser to any remedy or to cancel the Order without charge. Estimated lead times are stated on a net basis and do not include any additional lead time due to scheduled and/or unscheduled plant shutdowns. Estimated lead times are quoted on the basis of material availability and plant loading at the time of quotation, which are subject to change. Purchaser should confirm any estimated lead times at time of Order.
RETURN OF PRODUCTS: No Products shall be returned to Technicote without Technicote’s prior written agreement. Products returned by Purchaser shall be returned in the same condition as when delivery was effected by Technicote.
CANCELLATION/SUSPENSION: Purchaser shall not cancel or suspend an Order without Technicote’s prior written consent, which such consent Technicote shall be under no obligation to provide. Technicote may cancel all or part of an Order immediately upon the happening of any of the following: Purchaser is delinquent on any of its obligations under this agreement or under any Order or transaction with Technicote, insolvency of Purchaser; the appointment of a custodian as that term is defined in Title 11 U.S.C., as amended (the “Bankruptcy Code”), or the commencement of a case under any chapter of the Bankruptcy Code or the bankruptcy, receivership, insolvency or similar laws of any country for, by or against Purchaser; Purchaser’s suspension or termination of business or assignment for the benefit of creditors; or any event, whether or not similar to the foregoing, which materially impairs Purchaser’s ability to perform. Technicote’s rights to cancel or postpone set forth herein may be exercised by Technicote without liability.
CORRECTIONS: Technicote reserves the right to make corrections to price lists, quotations, invoices or other contract documents in the event of clerical or typographical errors.
INFORMATION REGARDING PRODUCTS: Purchaser acknowledges that it has received and is familiar with Technicote’s labeling and literature concerning the Products and will forward such information to its employees, agents and customers.
CONFIDENTIALITY: Purchaser will not disclose or otherwise disseminate, directly or indirectly, any of the terms of this agreement or any other information of Technicote given to or received by Purchaser or its associates or agents, unless Purchaser received Technicote’s written permission or such information is required to be disclosed by law or becomes part of the public domain through no fault of Purchaser, its associates or agents.
ASSIGNMENT: No right or interest in this agreement shall be assigned by Purchaser and no delegation of any obligation owed by Purchaser shall be made without the prior written permission of Technicote. As used herein, “Purchaser” and “Technicote” include the respective heirs, executors, personal representatives, successors and permitted assigns of each.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL TECHNICOTE BE LIABLE TO PURCHASER IN CONNECTION WITH ORDERS FOR PRODUCTS AND THIS AGREEMENT, WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON OR ARISES OUT OF THEORIES OF BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) OR OTHERWISE, IN EXCESS OF AN AMOUNT EQUAL TO THE NET CONTRACT VALUE OF THE PRODUCTS PROVIDED BY TECHNICOTE TO PURCHASER DURING THE MOST RECENTLY ENDED CALENDAR QUARTER.
TECHNICOTE PRODUCT WARRANTY: Technicote warrants the Products to be free from defects in material and workmanship for one (1) year from the initial date of shipment. Should any failure to conform to this warranty appear within one (1) year after the initial date of shipment, Technicote shall, upon notification thereof and substantiation that the Products have been stored and applied in accordance with Technicote’s standards, correct such defects by suitable repair or replacement without charge at Technicote plant or a the location of the products (at Technicote’s election); provided, however, if Technicote determines that repair or replacement is not commercially practical, Technicote shall issue a credit in favor of Purchaser in an amount not to exceed the purchase price of the Products. Any alteration in material or design of the Products by Purchaser or others and/or the undertaking of repairs or replacement by Purchaser or its agents without Technicote’s written consent shall relieve Technicote of all responsibility herewith. Technicote’s obligations under this warranty shall be conditioned upon (a) Purchaser’s notifying Technicote of any alleged defect(s) in a writing that references Purchaser’s Order number and provides complete identification of any allegedly defective Products within ten (10) days of the discovery of the damage or defect, and (b) Technicote’s satisfying itself upon inspection that its warranty has been breached. Purchaser may not bring any action under or arising from an Order or this agreement unless such action is commenced within one year after the cause of action accrues. EXCEPT AS SET FORTH IN THIS SECTION, TECHNICOTE MAKES NO WARRANTY CONCERNING THE PRODUCTS WHATSOEVER; TECHNICOTE DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OBLIGATIONS SET FORTH IN THIS SECTION ARE TECHNICOTE’S SOLE OBLIGATIONS AND PURCHASER’S EXCLUSIVE REMEDY. TECHNICOTE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND PURCHASER HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, (A) ANY AND ALL CLAIMS FOR PUNITIVE DAMAGES AND (B) ALL CLAIMS OF NEGLIGENCE OR STRICT LIABILITY OR BOTH. WITHOUT LIMITATION TO THE FOREGOING, IN NO EVENT SHALL TECHNICOTE BE LIABLE FOR THE LOSS OF USE OF THE PRODUCT OR FOR THE LOSS OF USE OF ANY OTHER PRODUCT, PROCESS, EQUIPMENT, OR FACILITIES OF PURCHASER OR OF THE END-USER, WHETHER PARTIALLY OR WHOLLY DUE TO DEFECTS IN MATERIAL AND/OR WORKMANSHIP AND/OR DESIGN OF TECHNICOTE’S PRODUCT. Purchaser (a) recognizes that the limitations contained in this Section are material factors in Technicote’s sale of the Products at the price(s) specified, and (b) agrees that any accommodation to Purchaser by Technicote, whether for sales policy reasons or otherwise, shall not be taken to establish any liability of Technicote or any contract term inconsistent with this agreement. Purchaser shall neither make nor purport to make (a) any warranty to any person by or on behalf of Technicote or (b) any warranty or representation inconsistent with this Section.
COMPLIANCE WITH LAWS: Technicote certifies that the Products produced by it, if any, were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and the Regulations and Orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. Technicote shall endeavor to comply with all applicable Ohio and United States federal laws. Technicote is not responsible for compliance with any other laws or regulations, or with any Product standard or specification, whether of general or particular application, unless Purchaser has furnished specific written notice thereof prior to Technicote’s entry of Purchaser’s Order. All sales of Products are conditioned upon and subject to strict compliance with United States export control laws, rules and regulations, including, without limitation, the Export Administration Act, the Export Administration Regulations, the Arms Control Act, the International Traffic in Arms Regulations, the Trading With the Enemy Act, the International Economic Powers Act and the Foreign Assets Control Regulations, as they may be amended and supplemented from time to time (each, an “Export Law” and collectively, the “Export Laws”). For any sale of Products requiring a license, permit or other approval under any Export Law (“Restricted Products”), Technicote shall determine the feasibility of obtaining such license, permit or other approval (“Export Approval”) and whether it will fill the order for the Restricted Products in light of required Export Approval. In the event Technicote applies for Export Approval for the Restricted Products, it shall do so at Purchaser’s cost and expense and Purchaser agrees to reimburse Technicote for any cost or expenses (including Technicote’s reasonable attorneys’ fees) incurred by Technicote in pursuing Export Approval. Technicote shall not be under any obligation to ship any such Restricted Products unless and until such Export Approval is granted, and only in strict compliance with the terms and conditions of such Export Approval. Purchaser shall be responsible for timely obtaining and maintaining any required import license, permit or approval necessary to import any Restricted Products into Purchaser’s country and any other required governmental authorization (“Import Approval”). Technicote shall not be liable if any Export Approval or Import Approval is delayed, denied, revoked, restricted or not renewed, and Purchaser shall not be relieved thereby of its obligations to pay Technicote for the Restricted Products or Technicote’s costs and expenses of obtaining Export Approval in respect of Restricted Products under the Export Laws. For Products other than Restricted Products, Purchaser (or its designated export agent) shall be responsible for the timely application for any required export authorization and the payment of any required fees, duties, taxes, tariffs, levies or other charges necessary to export the Products out the United States of America and shall be responsible for timely obtaining and maintaining any required Import Approval and the payment of any required fees, duties, taxes, tariffs, levies or other charges necessary to import the Products into Purchaser’s country. Technicote shall not be liable if any export authorization or Import Approval is delayed, denied, revoked, restricted or not renewed, and Purchaser shall not be relieved thereby of its obligations to pay Technicote for the Products. Purchaser shall not make any disposition of any Products purchased hereunder, by way of transshipment, reexport, diversion or otherwise, other than in and to the ultimate end user and country of destination specified on Purchaser’s order or declared as the ultimate end user and country of ultimate destination on Technicote’s invoices, except as the Export Laws or Export Approval may expressly permit. Purchaser shall not distribute or resell any Product to or within any country or to any individual, government authority or other entity that is presently or at any time in the future subject to sanctions of the United States government, or is in violation of any Export Laws or other United States federal laws, statutes, codes, Executive Orders, decrees, rules or regulations relating to terrorism, drug trafficking or money laundering, or is designated under any such authority as being subject to sanctions or connected in any way to terrorism, drug trafficking or money laundering, including, without limitation, on the Specially Designated Nationals List and Block Persons List maintained by the Office of Foreign Assets Control (OFAC), United States Department of the Treasury, and the Denied Persons List, the Entity List and the Unverified List maintained by the Bureau of Industry and Security, United States Department of Commerce. Purchaser shall indemnify and hold harmless Technicote from and against any damages, liabilities or expenses of any kind incurred by Technicote as a result of Purchaser’s direct or indirect breach of any term or condition related to the Export Laws.
FORCE MAJEURE: Delivery of all or any part of the Products is contingent upon Technicote’s ability to obtain supplies, raw materials and services through its regular and usual sources of supply. If by reason of any contingency beyond Technicote’s reasonable control, including (but not limited to) war, terrorism, governmental requests, restrictions or regulations, fire, flood, casualty, accident, or other acts of God, strikes or other difficulties with employees, delay or inability to obtain labor, equipment, material and services through Technicote’s usual sources, failure or refusal of any carrier to transport materials, delay in transport thereof, or any other similar occurrence, Technicote is not able to meet anticipated deliveries, Technicote shall not be liable therefor and may, in its discretion without prior notice to Purchaser, postpone the delivery date(s) under this document for a time which is reasonable under all the circumstances. If during the occurrence of any of the foregoing contingencies, Technicote holds any of the Products, Technicote may invoice and hold the same for the account of Purchaser and Purchaser agrees to make payment at the maturity of the invoice so rendered.
REMEDIES CUMULATIVE; NO WAIVER; SEVERABILITY: The individual rights and remedies of Technicote reserved herein shall be cumulative and additional to any other or further remedies provided in law or equity or in this document. Waiver by Technicote of performance or breach of any provision hereof by Purchaser, or failure of Technicote to enforce any provision hereof which may establish a defense or limitation of liability, shall not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision shall remain in full force and effect as written. If any of the provisions of this agreement are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
PAYMENT TERMS; CHOICE OF LAW; VENUE. Invoices are payable in full within 30 days from date of invoice. Invoices paid within 10 days of date of invoice are subject to a 1% discount against the material portion of the invoice. Invoices not paid within 30 days of the invoice date will bear a monthly delinquent charge at a rate of 1.50% of the unpaid balance until paid. In the event Purchaser is in breach of its obligations to Technicote, Purchaser agrees to pay all costs and expenses of collection, including reasonable attorneys’ fees and expenses. Purchaser and Technicote agree that the internal laws of State of Ohio shall govern the validity, performance and enforcement of this agreement, and that this agreement shall not be governed by or construed in accordance with the United Nations Convention on the International Sale of Goods, for any purpose. In the event of any claim arising out of or related to this agreement of the breach thereof, Purchaser and Technicote intend to and hereby confer jurisdiction to enforce the terms of this agreement upon the courts of any jurisdiction within the State of Ohio, and hereby waive any objections to venue in said courts; provided that Technicote’s right to institute or defend any proceedings in any jurisdiction, in or out of the United States of America, shall not be limited.
SHIPMENT OF ORDERS ENTERED VERSUS FILLED ALLOWANCE: