TERMS AND CONDITIONS OF SALE

  1. Parties. “Seller” means Custom Coating Technologies, Inc., a Michigan corporation.  “Buyer” means the entity or person submitting the purchase order to Seller.
  1. Application. These Terms and Conditions of Sale define the relationship of Buyer and Seller and apply to all sales of Goods, equipment, parts, supplies, materials, or other personal property (individually and collectively, “Goods”) by Seller to Buyer.  Buyer acknowledges and agrees that these Terms and Conditions of Sale are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Goods by Seller to Buyer (these documents are collectively referred to as the “Agreement”).
  1. Quotation Expiration. Written quotations are valid for a period of ninety (90) days unless otherwise noted in writing by Seller.  Seller will have the right to withdraw any quote that has not been accepted by Buyer within the ninety (90) day time period.
  1. Pricing. Prices for Goods and other related information shown in any Seller or manufacturer product publication, including but not limited to catalogs, brochures, and Web sites, are subject to change without notice.  Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted in writing by Seller. All prices are USD.
  1. Taxes. Prices quoted do not include (and Buyer shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Goods by Seller with the exception of Seller’s income tax obligations arising out of the sale of the Goods.
  1. Terms of Payment. Unless otherwise specifically agreed in writing by Seller, the total price is due and payable to Seller, without setoff or other deductions or charges, within fourteen (14) days of delivery unless Seller requires cash payment prior to shipment.  Any amounts due by Buyer to Seller that are unpaid on or after fourteen (14) days will bear interest at the maximum rate permitted by law or the Prime Rate in effect by Comerica Bank (or any successor institution) on the first day of the month such amounts first become past due plus six percent (6%), whichever is less.  The accrual or payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer.  Buyer will pay all actual court costs, attorney fees, and other costs incurred by Seller in collecting past-due amounts, including interest.
  1. Security Interest. As security for payment of all amounts due to Seller, Buyer grants to Seller a security interest in all Goods sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the Goods.  Buyer appoints Seller as its attorney-in-fact with authority, at Seller’s option, to take actions as Seller deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Buyer shall pay all applicable filing fees.  This power of attorney is irrevocable, coupled with an interest, and shall survive the death, bankruptcy, incompetency, disability, dissolution, termination or other cessation of existence of Buyer.
  1. Buyer’s Credit. Buyer shall provide Seller with such financial and business information as Seller shall from time to time reasonably request for the purpose of establishing and/or monitoring Buyer’s creditworthiness.  If the credit or financial responsibility of Buyer becomes impaired or otherwise unsatisfactory to Seller, or Buyer shall fail to keep or perform any terms or conditions of the Agreement or these Terms and Conditions of Sale on its part to be kept or performed, Seller may, at its option, require advance cash payment for the materials, specify other credit terms, or demand satisfactory security to be given by Buyer.  Should Buyer fail to make such advance payment, refuse to agree to other credit terms specified by Seller or fail to provide security upon demand therefore, Seller may withhold or cancel further shipment of Goods to Buyer.
  1. Limited Warranty; Disclaimer of Warranties.
      9.1       Seller warrants that at the time of delivery to Buyer, Goods will be free from defects in material and workmanship.  Seller’s indemnification obligations are limited to a breach of the foregoing warranties and will not apply to the extent of any liability arising out of any negligence on the part of Buyer.  OTHERWISE SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE GOODS, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Seller’s warranty is conditioned upon proper handling, use, and storage of the Goods and upon Buyer making a written claim for breach of warranty prior to the expiration of the Warranty Period (defined in Section 12 below). SCRATCHING, DETERIORATING, OR DAMAGING THE PAINTED SURFACE IN ANY WAY VOIDS THE WARRANTY.
      9.2       Seller shall not be liable for any damages that occur during installation.
      9.3       If Goods are resold by Buyer, Buyer will include in its agreement for resale provisions that limit recoveries in accordance with the Agreement.  In case of Buyer’s failure to include in any agreement for resale the terms providing for such limitations, Buyer will indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure.
      9.4       IN NO EVENT WILL SELLER BE LIABLE OR RESPONSIBLE FOR ANY LOSSES, DAMAGES OR EXPENSES, WHETHER DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR REVENUE, LOSS OF PRODUCT, LOSS OF USE OF EQUIPMENT, INTERRUPTION OF BUSINESS, COST OF CAPITAL, COST OF COVER, DOWNTIME COSTS, INCREASED OPERATING COSTS, LOSS OF GOODWILL, LOSS OF OPPORTUNITIES, CLAIMS OF BUYER’S CUSTOMERS FOR SUCH DAMAGES) CAUSED BY OR RESULTING FROM THE USE OF DEFECTIVE OR NONCONFORMING GOODS OR FROM DELAY IN DELIVERING GOODS OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER’S TOTAL LIABILITY, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, INCLUDING SELLER’S NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR ANY OTHER CAUSE OR BASIS WHATSOEVER, IS EXPRESSLY LIMITED TO THE PRICE OF THE GOODS INVOLVED.
      9.5       IF GOODS DO NOT MEET THE ABOVE WARRANTIES, BUYER SHALL PROMPTLY NOTIFY SELLER IN WRITING WITHIN THE WARRANTY PERIOD.  SELLER SHALL THEREUPON, AT SELLER’S OPTION, REPRODUCE THE DEFECTIVE GOODS.  IF IN SELLER’S REASONABLE JUDGMENT THE GOODS CANNOT BE REPRODUCED, SELLER SHALL REFUND OR CREDIT MONIES PAID BY BUYER FOR THOSE GOODS THAT DO NOT MEET THE ABOVE WARRANTIES.  NO REPAIR, REPLACEMENT OR REPERFORMANCE BY SELLER HEREUNDER SHALL EXTEND THE WARRANTY PERIOD.
  1. Shipping.
      10.1     Any delivery dates or other schedule of performance by Seller are approximations, and the sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Goods, or otherwise to perform, consistent with the reasonable demands of its business.  In any event, Seller will have no liability to Buyer or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Seller.  In the event of delay caused by any such occurrence or event, the delivery date(s) shall be postponed for a period of time equal to the time required to remedy, correct or alleviate such cause or event. Any delay of shipment exceeding fifteen (15 days) by fault of Buyer will be subject to storage fees of $25.00 per day per unit.  Weight restrictions, overweight, and oversized surcharges may apply.
  1. Title and Risk of Loss. Title to and risk of loss or damage to the Goods will pass to Buyer on shipment by Seller F.O.B. from (a) Seller’s facility, (b) Seller’s supplier’s facility when Goods are shipped directly from the manufacturer, or (c) as otherwise specifically indicated in the Agreement.
  1. Inspection and Acceptance. Buyer will have fourteen (14) days from the date of delivery (the “Warranty Period”) to inspect the Goods for defects and nonconformance and to notify Seller, in writing, of any defects, nonconformance, or rejection of the Goods (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below).  Claims for shipping damage, errors, or shortages must be made in writing to Seller no more than seven (7) days after receipt of shipment.  After this period, Buyer will be deemed to have irrevocably accepted the Goods, if not previously accepted.  After acceptance, Buyer will have no right to reject the Goods for any reason or revoke acceptance.  Claims for damage due to shipping must be made by Buyer to the freight carrier.
  1. Return/Exchange of Goods. All returns will be pursuant to Seller’s instructions. Buyer must contact Seller’s Customer Service at (734) 244-3610 for instructions on returns.  Non-warranty returns of normal stock products in resalable condition will be subject to Seller’s return policies in effect at the time, including applicable restocking and transportation charges and other conditions of return. Damages are limited to the cost of the item.
  1. Cancellation or Termination. In the event of cancellation of the Agreement by Buyer, or in the event of default under the Agreement by Buyer that is not cured within seven (7) days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with the Agreement, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer.  In no event, however, will any amount payable by Buyer under the Agreement exceed the total price payable by Buyer for the Goods. In the event of cancellation or termination, Buyer must contact Customer Service at (734) 244-3610.
  1. Changes. Seller reserves the right from time to time to correct any typographical or clerical errors, including errors in mathematical computation that may exist in the Agreement.
  1. Customer Support. Unless otherwise specifically provided on the quotation or invoice, the Agreement does not include any services of Seller in connection with installation, testing, or evaluation of the Goods. Any questions, comments, concerns, or cancellations related to the Goods should be directed to Customer Service at (734) 244-3610.
  1. Modifications and Waiver; Entire Agreement.
      17.1     Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Agreement.  The Agreement contains the entire agreement between Seller and Buyer and can be modified or rescinded only by a writing signed by both parties.  No waiver of any provision of the Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given.  Failure of either party to insist on strict performance of the Agreement will not be construed as a waiver of any term or condition of the Agreement.
      17.2     Any document submitted by Buyer to Seller confirming its intention to purchase Goods described in the Agreement (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of the Agreement, even if the document states terms in addition to or different from those in the Agreement.  All agreements between Seller and Buyer will be solely under the terms and conditions of the Agreement and these Terms and Conditions of Sale, and Seller objects to any and all additional or different terms contained in any document submitted to Seller by Buyer.  Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Goods does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement and these Terms and Conditions of Sale, but will constitute only acknowledgment of receipt of the document.  In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of Goods described under the Agreement, the acceptance of delivery by Buyer of Goods described in the Agreement will constitute a course of conduct constituting Buyer’s agreement to the terms and conditions of the Agreement and these Terms and Conditions of Sale, to the exclusion of any additional or different terms and conditions.
  1. Compliance with Laws. Buyer will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Goods and shall indemnify and hold Seller harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the Goods.
  1. Export Control. Goods supplied by Seller may be subject to various export laws and regulations.  It is the responsibility of Buyer to ensure compliance with all laws and regulations. Notwithstanding any other provision to the contrary, if federal, state, or local law requires export authorization for the export or re-export of any Goods, no delivery can be made until export authorization is obtained, regardless of any otherwise promised delivery date.  If any required export authorization is denied, Seller and Seller’s supplier will be relieved of any further obligation relative to the sale and delivery of the Goods subject to denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott-related requests except to the extent permitted by federal law and then only at Seller’s discretion.

 

  1. Confidentiality.
      20.1     In connection with this Agreement, Seller and Buyer (as to information disclosed, “Disclosing Party”) may each provide the other party (as to information received, “Receiving Party”) with Confidential Information.  “Confidential Information” means (a) all pricing for Goods, (b) all terms of the Agreement, (c) all information that is designated in writing as “confidential” or “proprietary” by the Disclosing Party at the time of written disclosure, and (d) all information that is orally designated as “confidential” or “proprietary” by the Disclosing Party at the time of oral disclosure and is confirmed to be “confidential” or “proprietary” in writing within ten (10) days after oral disclosure.  The obligations of this Section 20 shall not apply as to any portion of the Confidential information that: (i) is or becomes generally available to the public other than from disclosure by the Receiving Party, its representatives or its affiliates; (ii) is or becomes available to the Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than the Disclosing Party when the source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law, a valid legal process or a government agency (subject to the requirements of Subsection 20.3); or (v) is approved for disclosure in writing by an authorized representative of the Disclosing Party.
      20.2     The Receiving Party agrees: (i) to use the Confidential Information only in connection with the Agreement and permitted use(s); (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees, agents or financing parties who have a need to know for Buyer to perform its obligations under the Agreement or to produce the Goods; and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party.  Confidential Information shall not be reproduced without the Disclosing Party’s written consent, and the Receiving Party shall return all copies of Confidential Information to the Disclosing Party upon request, except to the extent that the Agreement entitles the Receiving Party to retain the Confidential Information.  Seller may also retain one copy of Buyer’s Confidential Information until all its potential liability under the Agreement terminates.
      20.3     If either party or any of its subsidiaries, affiliates or representatives is required by law, legal process or a government agency to disclose any Confidential Information, that party agrees to provide the Disclosing Party with prompt written notice to permit the Disclosing Party to seek an appropriate protective order or agency decision or to waive compliance by the Receiving Party with the provisions of this Section 20. In the event that efforts to secure confidential treatment are unsuccessful, the Disclosing Party may lawfully revise the Confidential Information to make it nonproprietary or to minimize the loss of its proprietary value.
      20.4     Nothing in this Section 20 grants the Receiving Party any license under any invention, patent, trademark or copyright now or later owned or controlled by the Disclosing Party.
      20.5     Buyer shall not disclose Confidential Information to Seller unless it is required to do so to enable Seller to produce the Goods.  If Buyer does disclose Confidential Information, Buyer warrants that it has the right to disclose the information, and Buyer shall indemnify and hold Seller harmless against any claims or damages resulting from improper disclosure by Buyer.
      20.6     As to any individual item of Confidential Information, the restrictions of this Section 20 shall expire the earlier of five (5) years after the date of disclosure or three (3) years after termination or expiration of the Agreement.
      20.7     In the event a separate confidentiality or nondisclosure agreement is signed by Buyer and Seller, such confidentiality or nondisclosure agreement shall supersede this Section 20.
  1. Applicable Law and Jurisdiction. Seller and the Buyer agree that interpretation of and performance under this Agreement, as well as all other aspects of the transaction contemplated by these Terms and Conditions and the Agreement, shall be governed by the laws of the State of Michigan, including the Uniform Commercial Code.  Seller and Buyer hereby irrevocably submit to the exclusive jurisdiction and venue of the state courts located in Wayne County, Michigan, and federal courts located in the Eastern District of Michigan in connection with any action relating to these Terms and Conditions or the Agreement.  The mailing to the last known address of the respective parties of any process by registered mail shall constitute lawful and valid service of process.
  1. Miscellaneous.
      22.1        To the fullest extent as permitted by law, Custom Coating Technologies, Inc. is providing this website and its contents on an “as is” basis and makes no (and expressly disclaims all) representations or warranties of any kind, express or implied, with respect to this website or the information, contents, materials or products included in this website including, but without limitation, warranties of merchantability and fitness for a particular purpose. Should any provision of these disclaimers and exclusions be deemed to be unlawful, void or for any other reason unenforceable, then that provision will be deemed to be severable and shall not affect the validity and enforceability of the remaining provisions.
      22.2        The captions to the foregoing clauses are informational only and of no legal force and effect.
      22.3        No provision of this Agreement may be construed against Seller as the drafting party.  The term “including” means “including without limitation.”  The term “days” means calendar days unless otherwise expressly stated.
      22.4        Sections 1, 2, 4, 5, 6, 7, 9, 12, 17, 18, 19, 20, 21, and 22 shall survive the termination or cancellation of the Agreement.