U.C COATINGS, LLC TERMS AND CONDITIONS OF SALE
GENERAL: U.C Coatings, LLC, a Delaware limited liability company (“Seller”) and the person or entity to whom Seller’s sales contract, order acknowledgement, invoice, and/or other sales document (each a “Sales Document”) is addressed (“Buyer”) are collectively referred to herein as the “Parties.” All offers and sales by Seller to Buyer are expressly conditioned on Buyer’s acceptance of these terms and conditions. Notice of objection to any different or additional terms in any response to this offer is hereby given. Buyer agrees that the first to occur of the following clauses (a) though (c) below, will conclusively constitute Buyer’s acceptance of these terms and conditions: (a) Buyer issues instructions to Seller for the delivery of any wood and concrete protection products, including all packaging, (the “Products”) covered by any Sales Document to which these terms and conditions are attached or included, or incorporated by reference and made available to Buyer; (b) Buyer accepts or pays for any Products; or, (c) Buyer executes any such Sales Document. Any purchase order or other communication from Buyer that contains terms or conditions in addition to or inconsistent with these terms and conditions will not apply to the purchase of any Products by Buyer or be used to waive, modify, vary, explain, or supplement all or any part of these terms and conditions and are hereby objected to and rejected by Seller, unless their acceptance is made in writing by an authorized officer of Seller. These Terms and Conditions of Sale shall supersede any and all prior representations, arrangements, and communications, oral or written, in connection with the Products.
PRICE AND PAYMENTS: Unless stated that a price stated is “firm”, all prices remain subject to change. Orders shall be invoiced at Seller’s current prevailing prices at the time of Product shipment. All Sales Documents are payable in United States funds and shall not be subject to any exchange, defense, claim, counterclaim, set off, reduction, deduction, back charge, retainage, hold back, or other charges, for any reason whatsoever. No retention of payment by Buyer is permitted under the terms of this document with respect to any Products ready for delivery. Any unauthorized retention of payments by Buyer will relieve Seller from its obligations pertaining to fabricating and shipping subsequent Product. Unless stated otherwise, prices do not include any transportation surcharges or accessorial charges that the carrier may impose. Such surcharges and accessorial fees will be charged to Buyer. Where prices include delivery costs, any increases in delivery costs shall be borne by Buyer. Any and all applicable sales taxes, use taxes, and/or any other taxes or charges imposed by any applicable taxing authority upon the production, sale, or transportation of the Products shall be borne by Buyer. Any credit terms as to time and amount of payment, may be limited or revoked at any time without notice by Seller. Subsequently, the price of all Products delivered or to be delivered shall be payable in accordance with such limited credit terms, or, at Seller’s option, in cash before shipment or on or after acceptance of delivery. The time of all payments is deemed “of the essence”. In the event Buyer does not pay any invoice in full when due, Buyer shall be liable to Seller, in addition to the unpaid balance of such an invoice, for all costs and expenses of collection, including, but not limited to, reasonable attorneys’ fees and disbursements, court costs, and interest on the unpaid balance of such invoice at the lesser of one and one-half (1.5%) percent per month or the highest interest rate permitted by law.
DELIVERY; SHIPMENT; RISK OF LOSS; TITLE: Delivery dates listed on quotations or tentative delivery schedules provided by Seller are estimates only, and are not guaranteed. Seller will make reasonable efforts to deliver in accordance with estimated dates. Seller will not be held liable for failure to deliver as estimated. Seller may select the method and agency of delivery transportation. Buyer’s change orders, if applicable, may affect delivery dates. Delay in delivery of any installments will not relieve Buyer of its obligations to accept the initial or any revising installments. If shipments are delayed by the Buyer, invoices may be rendered on the date Seller is ready to make shipments. Buyer shall be responsible for risk of loss, storage costs, and any other costs incurred by Seller due to Buyer’s failure to accept delivery. Unless otherwise agreed to in writing by the Parties, all deliveries shall be made F.O.B. origin (the Company’s warehouse), freight prepaid, and charged back. All title to Products and risk of loss shall pass to Buyer upon delivery of Products to a third party common carrier. Seller may select the carrier and mode of delivery. Seller’s receipt from the carrier shall be conclusive evidence of delivery. Weights, quantities, and other items reflected on the carrier’s receipt shall be conclusive evidence of the Products delivered, except for instances of manifest error(s). Notwithstanding anything contained in these Terms and Condition to the contrary, Seller reserves the right to ship Products and make collection by sight draft with bill of lading attached or on a C.O.D. basis or any other terms.
INSPECTION: Buyer shall notify Seller in writing of any alleged damaged or defective Products within five (5) days of delivery. Failure to notify Seller of such alleged damage or defect shall constitute a waiver by Buyer of any claims with respect to such nonconforming Products. Any determination that the Product is damaged or defective shall either be agreed by the parties or by an arbitrator selected by the parties who is qualified and capable of rendering an independent, impartial decision.
WARRANTY: Seller makes every effort to maintain uniformity in its Products from shipment to shipment. However: (1) wood behavior is different from species to species, and will change due to weather, temperature, and other environmental factors; and (2) Seller has no control over how and when our Products are used. Therefore, Seller cannot guarantee product effectiveness. Seller warrants its Product to be free from defects for a period of ninety (90) days from the date of purchase. If the Product is defective, Seller at its sole option shall replace the product or refund the purchase price. Seller makes no other warranties. Seller shall not have liability for any other damages of any kind, whether direct, incidental, consequential, punitive, or otherwise for any defect in its product. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. REFUND OF THE PURCHASE PRICE SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY. Seller’s Warranty does not apply to any Products identified by Seller as obsolete or substandard, which are sold “AS IS WHERE IS”.
RESALE OF PRODUCTS: If Products are purchased for resale or incorporated into another product which is resold, Buyer shall not make any representations or warranties with respect to the Products inconsistent with these Terms and Conditions. Buyer shall include in the terms and conditions of such resale disclaimers of warranties and limitations of liabilities at least as restrictive as contained herein. Furthermore, with respect to any separate and distinct product produced by Buyer into which a Product is incorporated Seller hereby disclaims any and all liability and makes no warranty of any kind with respect to any such Product. Buyer hereby agrees to indemnify, defend and hold Seller harmless with respect to any and all third-party suits, claims, counterclaims, demands, judgments or other actions relating to any such Product. This warranty does not apply to any Product that has been repaired or altered without Seller’s written consent, incorrectly installed, subjected to misuse, improperly maintained, or is damaged by accident, negligence, or other events outside of Seller’s control. Any Product that is replaced is warranted only for the balance of the initial warranty period.
FORCE MAJEURE: Seller will not be liable for any delay or failure in performance of any order, in the delivery or shipment of any Product, or for any damages or losses suffered by Buyer or any third party that are caused by, or in any manner arise from, directly or indirectly, any labor disturbances, embargos, storms, fires, explosions, acts of God or public enemies, inability to obtain products from a supplier, accidents or breakdown to, or material prolonged mechanical failure of, essential machinery or equipment, delays or interruptions in transportation, or any other causes beyond Seller’s control. Upon any such delay or failure, Seller may, in its sole discretion and without any liability to Buyer, delay the performance of, partially perform, or cancel any affected order in whole or part. When it is commercially feasible to do so, the Seller shall make its commercially reasonable best efforts to diligently complete the Product for delivery and rectify or provide an alternative remedy for any such force majeure event, using commercially reasonable methods to do so.
INTELLECTUAL PROPERTY: Buyer shall not use any trade names or trademarks of Seller with respect to the Products, unless otherwise permitted by Seller in writing.
SUCCESSORS AND ASSIGNS; SEVERABILITY: These terms and conditions will be binding upon the Parties and their respective successors and assigns; provided, however, that Buyer may not assign or otherwise transfer (whether by operation of law or otherwise) any of Buyer’s rights or obligations hereunder without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion. If any provision of these terms and conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect.
DEFAULT: If Buyer: (a) fails to pay any amount due to Seller when due; (b) fails to observe or perform any of its other obligations under these terms and conditions; (c) takes any action that adversely affects the name, reputation, or goodwill of Seller or its Products; or (d) becomes insolvent, is adjudicated a bankrupt, voluntarily files or permits the filing of a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks any similar relief under any bankruptcy laws or related statutes, or a receiver is appointed for its assets, then, at Seller’s sole option, all sums due or to become due from Buyer to Seller will become immediately due and payable, and Seller may terminate any existing order between the Parties in whole or in part, defer shipment or delivery of any Products, sell any part of any undelivered Products, and exercise any other remedies available to Seller under applicable law.
GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL: The Sales Documents and these terms and conditions will be governed by and construed according to the laws of the State of New York, without reference to the principles of conflicts of law. Each of the Parties hereby irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the United States District Court for the Western District of New York or the applicable state court located in the State of New York, County of Erie for any action or proceeding arising out of or relating to the sale of Products to Buyer or otherwise in connection with the Sales Documents or these Terms and Conditions, (b) waives any objection to the laying of venue of any such action or proceeding in such courts and (c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SALES DOCUMENTS OR THESE TERMS AND CONDITIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (1) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (2) EACH PARTY MAKES THIS WAIVER VOLUNTARILY. Prior to commencement of litigation, both parties shall make their best efforts to resolve any matter in dispute, failing which the parties by mutual consent may elect to supersede litigation in court by final and binding arbitration pursuant to selection of any agreed arbitrator pursuant to arbitration procedures adopted by a knowledgeable and independent arbitrator located in New York State within 50 miles of the Seller’s premises, utilizing the arbitration procedures required by the arbitrator or as mutually agreed by the parties.
SECURITY INTEREST: Buyer hereby grants to Seller a priority lien and security interest in Products sold to Buyer and in all proceeds of such Products to secure Buyer’s obligations to Seller hereunder. Buyer appoints each officer of Seller as an attorney in-fact for Buyer for the purpose of executing and filing each financing statement or other documents necessary to perfect such security interest. Upon the failure of Buyer to pay the purchase price for any Products when due, or to perform any of Buyer’s obligations under these terms and conditions, Seller will have all rights and remedies of a secured party under the Uniform Commercial Code of the State of New York and any other applicable law subject to the provisions contained in the Sales Document and these Terms and Conditions.
COSTS AND EXPENSES; INDEMNIFICATION: Buyer will be responsible for all costs and expenses, including attorneys’ fees and disbursements, incurred by Seller in enforcing any term or condition herein in the event of breach by the Buyer or any provision contained herein which has not been rectified by the Buyer within seven (7) days after written notice given by the Seller to the Buyer, and Buyer will indemnify and promptly reimburse Seller for such costs and expenses. To the fullest extent permitted by law, Buyer will defend, indemnify, and hold harmless Seller from and against claims, damages, losses, and expenses, including but not limited to attorneys’ fees and disbursements, arising out of, relating to, or resulting from Buyer’s purchase and installation of any Product, to the extent caused by the acts or omissions of Buyer.