TERMS AND CONDITIONS OF PURCHASE
1. ACCEPTANCE
These Terms and Conditions of Purchase (“Terms and Conditions”) apply to all purchase orders (“Orders”) by Canlak Coatings Inc. or any affiliates of Canlak Coatings Inc. (each a “Buyer”) for products and/or services (“Goods”) supplied by seller (“Seller”). BUYER’S ORDER IS EXPRESSLY CONDITIONED UPON SELLER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS HEREOF. THE TERMS AND CONDITIONS HEREOF SHALL CONSTITUTE THE SOLE AND BINDING CONTRACT BETWEEN SELLER AND BUYER CONCERNING THE PURCHASE AND SALE OF THE GOODS ORDERED HEREUNDER. No changes, additions or deletions to the Terms and Conditions hereof shall be effective unless approved in writing by Buyer. Acceptance of this Order is expressly limited to the Terms and Conditions hereof. Any terms proposed by Seller which add to, vary from or conflict with the Terms and Conditions hereof shall be void, and the Terms and Conditions hereof shall govern. IF THIS ORDER IS DEEMED TO BE AN ACCEPTANCE OF AN OFFER OR COUNTER-OFFER BY SELLER, SUCH ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL UPON SELLER’S AGREEMENT TO THIS ORDER, INCLUDING THE TERMS AND CONDITIONS SET FORTH HEREIN. Commencement of performance by Seller pursuant to this Order constitutes acceptance of all Terms and Conditions hereof by. It is an express condition of this Order that any provisions printed or otherwise contained in any acknowledgement hereof, or in any quote, offer or invoice related hereto, which are inconsistent with or in addition to the Terms and Conditions herein stated, shall have no force or effect, and that the Terms and Conditions hereof will control for all purposes.
2. PAYMENT AND PRICE.
Payment by Buyer for Goods supplied hereunder shall not constitute acceptance if subsequent inspection discloses a breach of Seller’s warranties or other breach of these Terms and Conditions. Except as may be otherwise specified in the Order, the prices specified in this Order include all federal, state, local or foreign taxes, levies, duties or other government charges upon the manufacture, sale, or transportation of the Goods described herein. Invoices will be paid within sixty (60) days of the date of the invoice or the date of receipt and inspection of Goods, whichever is later. Buyer shall receive the benefit of any reduction in Seller’s prices prior to delivery, and in no event shall Buyer be charged a price higher than charged to Seller’s other customers for Goods of like grade and quality. Buyer may withhold or set off from any payment any amount as to which a dispute exists under any Order or against any amount due Buyer or any affiliate of Buyer under any transaction with Seller.
3. PACKAGING.
Seller will package the goods in accordance with good commercial practice so as to ensure that no damage results from weather or transportation, and the cost thereof will be borne by the Seller. No packaging, shipping or handling charges shall be charged to Buyer unless specified on the Order. If Buyer specifies a method of shipment or specific carrier, Seller shall use such method of shipment or specific carrier. All Goods must be suitably packed and classified to assure the lowest transportation rates consistent with full protection against loss or damage in transit and to meet the carrier’s requirements.
4. DELIVERIES.
TIME IS OF THE ESSENCE IN SELLER’S PERFORMANCE OF THIS ORDER. Delivery must be affected within the time stated on this Order or otherwise agreed upon in writing. Any goods delivered thereafter may be rejected or returned at Seller’s risk and expense unless Buyer has authorized such late shipment in writing for each instance. Seller shall promptly notify Buyer of any actual or anticipated delay in delivery and shall take all reasonable steps to avoid or end such delay without additional cost to Buyer, including but not limited to payment of expedited shipping costs. Deliveries shall be made to the location specified by Buyer. If Seller fails to deliver any Goods in accordance with Buyer’s instructions, Buyer may cancel the Order for such Goods and/or purchase substitute goods, in which event Seller will reimburse Buyer for its costs and expenses in procuring substitute goods.
5. TITLE AND RISK OF LOSS.
Title to the Goods shall not pass to Buyer until said Goods have actually been received by Buyer, notwithstanding any agreement to the contrary, including, but not by way of limitation, any agreement to pay transportation or insurance charges. Risk of loss or damage in transit prior to such actual receipt by Buyer shall be borne by Seller unless different delivery terms are specified in the Order. Nothing herein contained shall be construed as depriving Buyer of its interest, or limiting such interest, in the Goods prior to such actual receipt. No packaging, shipping or handling charges shall be charged to Buyer unless agreed to in writing by Buyer.
6. WARRANTIES.
Seller makes the following warranties for the Goods to Buyer and to Buyer’s customers, and all such warranties shall be in addition to any and all other warranties, express or implied, which may be prescribed by law or in equity: (a) Seller shall, at the date of delivery, have full, good and marketable title to the Goods and the Goods shall be free and clear of any and all liens, restrictions and encumbrances; (b) the Goods shall be new, fit and sufficient for their intended uses, and conform to specifications, drawings, and other descriptions supplied by Buyer and shall be free from defects (patent or latent) in materials and workmanship; (c) the Goods will be free from defects in design; (d) Seller has complied with all quality standards and procedures furnished by Buyer or generally applicable in the industry and all applicable laws, regulations, standards, ordinances and orders in performing the Order; (e) the prices charged to Buyer for the Goods are and will remain no less favorable than Seller’s prices to other customers for the same or comparable goods or services and Seller will reduce its prices under this Order if necessary at any time to maintain this warranty; and (f) all services will be performed in a professional manner and consistent with the highest standards in the industry for similar services. Such warranties, including warranties prescribed by law, shall run for a period of two (2) years after delivery unless otherwise stated. In the event of breach of the warranty, Buyer, at its option, may: (i) cancel the Order for such Goods, in which case Seller will refund to Buyer all amounts paid for such Goods within ten (10) days of Buyer’s cancellation; (ii) require Seller to promptly replace such Goods with conforming Goods without additional charge to Buyer; (iii) repair or replace the Goods in which case Seller shall reimburse Buyer for all costs related to such repair or replacement. Goods shall be removed after notification of rejection at Seller’s expense. Seller shall bear all risk of loss of rejected Goods.
7. INSPECTION.
Seller shall maintain inspection or quality control systems to ensure compliance with requirements of this Order. Buyer reserves the right to perform reviews and evaluations of Seller’s quality control and inspection records and processes to confirm adherence to this requirement. Seller shall permit any authorized representative of Buyer to inspect the Goods included in this Order at Seller’s facility upon reasonable advance notice. Materials rejected as not conforming to this Order, or as otherwise defective, may be returned at Seller’s expense, including transportation and handling costs.
8. REJECTION.
Buyer reserves the right to reject any Goods and to cancel all or any part of this Order if Seller fails to deliver all or any part of the Goods in accordance with the terms, conditions, instructions and specifications contained herein or supplied by Buyer. In the event of any nonconformity of the Goods, Buyer, at its option may: (i) cancel this Order as to such rejected Goods, in which case Seller will refund to Buyer all amounts paid for such rejected Goods within ten (10) days of Buyer’s cancellation; or (ii) require Seller to promptly replace such rejected Goods with conforming Goods without any additional charge to Buyer. Rejected Goods shall be removed at the expense of Seller including transportation both ways, promptly after notification of rejection. Seller shall bear all risk of loss of rejected Goods.
9. CHANGES.
Buyer shall have the right to make, from time to time, changes as to packing, destinations, and delivery schedules hereunder. Seller shall immediately notify the Buyer of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof shall be agreed upon in a written amendment to this Order.
10. SUSPENSIONS AND CANCELLATION.
Buyer may in its sole discretion, cancel or suspend all or any portion of this Order without any liability to Seller provided such cancellation or suspension occurs at least 3 days prior to the scheduled delivery date for such Goods. If Buyer suspends delivery of any Goods, Seller shall hold such Goods without cost until written notice from Buyer to resume delivery of suspended Goods. This paragraph shall not limit or affect Buyer’s right to terminate this Order for default of Seller.
11. CONFIDENTIALITY.
Buyer shall at all times have title to all drawings, specifications and other information furnished by Buyer to Seller and intended for use in connection with this Order (together “Buyer’s Information”). Seller shall use Buyer’s Information only in connection with this Order and shall not disclose Buyer’s Information to any third party, other than Seller’s subcontractors, or suppliers who require Buyer’s Information and who agree to be bound by this obligation of confidentiality to Buyer. Upon the Buyer’s request or upon completion of this Order, Seller shall promptly return all Buyer’s Information to Buyer.
12. INDEMNIFICATION.
Seller shall indemnify, defend and hold Buyer, its successors, assigns, customers, affiliates, employees, agents, and users (collectively, the “Indemnified Parties“), harmless from and against any and all claims, liabilities, losses, fines, penalties, damages and expenses (including reasonable attorneys’ fees and court costs) which the Indemnified Parties may sustain or incur as a result of any claim of damage, loss, injury or death to any person or entity or property of any person or entity relating to or resulting from (i) the Goods; (ii) claimed infringement of any patent, trademark, trade secret, copyright, or other proprietary right of any other party arising out of the Goods; or (iii) any other act or omission of Seller or its subcontractors related to the Order. Any settlement of any suit, claim or proceeding which impacts Buyer in any way shall be subject to Buyer’s consent.
13. LIMITATION OF LIABILITY.
IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE LEGAL THEORY ON WHICH ANY LIABILITY CLAIM IS MADE. IN NO EVENT WILL BUYER’S LIABILITY TO SELLER EXCEED THE AMOUNT DUE UNDER THE APPLICABLE ORDER FOR THE GOODS.
14. FORCE MAJEURE.
In the event of war, fire, accidents, natural disasters, strikes or other labor disputes, pandemics, epidemics, government acts or restrictions, or other conditions beyond the Buyer’s reasonable control which prevent Buyer’s prompt utilization of the Goods covered by this Order, Buyer may cancel this Order in whole or in part as to Goods not yet shipped by notice to Seller.
15. NO ASSIGNMENT.
Seller shall not assign or delegate this Order, or the contract formed as a result of accepting this Order, in whole or in part without the prior written consent of Buyer. Buyer reserves the right to assign this Order. This Order will bind and inure to the benefit of the parties hereto and their respective successors, permitted transferees, and permitted assigns. Any attempted assignment or delegation by Seller shall be void unless made in conformity with this paragraph.
16. HAZARDOUS MATERIALS.
Seller shall provide written notice to Buyer upon receipt of an Order if the products or services furnished in connection therewith are subject to the laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other environmental or safety and health regulations. Seller shall furnish all appropriate shipping certifications and any notices, forms or other information required to be supplied to a buyer or user of hazardous or toxic substances pursuant to applicable laws or regulations, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use by Buyer’s nontechnical personnel and sufficiently specific to identify all action which the user must take concerning the material. The following certification must be made on the bill of lading: “This is to certify that the above‑named articles are properly classified, described, packaged, marked and labeled and are in proper condition for transportation according to any applicable transportation regulations.”
17. TERMINATION.
Buyer may terminate this Order immediately by written notice to Seller without liability or further obligation hereunder if Seller breaches any provision, term or condition of the Order (or Buyer reasonably anticipates such breach) and Seller shall be liable for all damages, losses and liability that Buyer incurs directly or indirectly resulting from Seller’s breach, including, without limitation, attorney’s fees.
18. COMPLIANCE WITH LAW.
Seller shall comply with all applicable state, federal, local, and national laws, rules and regulations in the manufacture, shipment, and delivery of the Goods including but not limited to the export control laws of the United States and the laws of the countries in which Seller operates.
19. INSURANCE.
For a period of two (2) years after delivery of the Goods, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than one million dollars ($1,000,000) with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order.
20. MISCELLANEOUS.
Buyer’s waiver of any default, breach or failure to enforce any of the terms, conditions, instructions or specifications related to this Order shall not in any way affect, limit or waive Buyer’s right thereafter to enforce and compel strict compliance with every term, condition, instruction and specification hereof or any subsequent default or breach. Seller is an independent contractor and not Buyer’s employee, agent, partner or joint venturer. Buyer’s remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity. In the event any provision of an Order is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of an Order as if such provision were not included in the Order. All Orders will be interpreted and enforced under the laws of New Jersey, without regard to its conflicts of law provisions. The state and federal courts in Middlesex County, New Jersey will have exclusive jurisdiction to resolve any dispute related to this Order unless Buyer, in its sole discretion, brings a claim against Seller in another court of competent jurisdiction. Seller consents to the jurisdiction of such courts and agrees to appear in any such action upon written notice thereof. In no event will the provisions of the United Nations Convention on the International Sale of Goods apply to this Order.
Revised 3/24