Advanced Coating Technology (ACT) agrees to provide Purchaser such services as more fully and specifically set forth in the quote/RFQ provided by ACT or such other order approved and accepted by ACT (collectively the “Order”), subject to the following terms and conditions:
1. Acceptance: Any acceptance of the Order by Purchaser is limited to acceptance of the express terms contained in said Order, unless otherwise modified and agreed to in writing by both ACT and Purchaser. Purchaser shall not vary in any way any of the terms set forth herein or in the Order, whether in Purchaser's acknowledgment form, purchase order or otherwise, and to the extent there is any deviation, conflict or variation, the terms set forth herein or in the Order shall prevail.
2. Terms of Payment: Payment shall be net 30 days based on acceptable credit as determined by ACT prior to commencement of the work. Overdue balances shall be subject to interest charged at 1 ½ % per month. Purchaser shall pay all reasonable attorney's fees, court costs, collection fees, and such other costs and expenses incurred by ACT in collecting overdue balances from Purchaser. Full payment prior to shipment of completed work may be required.
3. Freight: Shipment will be made FOB origin or CAP with Purchaser paying all shipping costs and taking all responsibility for goods when the goods leave ACT's premises.
4. Packaging: The return of Purchaser's coated parts will be packaged in the same containers used to transport them to ACT. Additional protective packaging deemed necessary by ACT in order to protect the coated parts for return to Purchaser might add cost and shall be the responsibility of Purchaser. ACT shall not be responsible for freight damage, or loss or destruction of original packaging. Purchaser shall be responsible for packaging and labeling the containers holding Purchaser's parts in accordance with any and all applicable federal, state and local packaging and labeling laws, ordinances, rules and regulations, and all amendments thereto, in effect in the place to which the parts are shipped.
5. Condition of Parts Provided by Purchaser: Additional charges might be applicable if Purchaser's parts arrive in a condition (rusty, extremely oily, etc.) not described in the RFQ, ACT's quote, or the Order, and ACT reserves the right to charge such additional costs necessary to prepare Purchaser's parts for coating.
6. Delivery: Delivery dates set by ACT are good faith estimates only. ACT shall not be liable for any direct, consequential, or incidental damages arising due to late delivery.
7. Taxes: It shall be Purchaser's responsibility and obligation to provide a valid tax exempt certificate to ACT, if applicable. Purchaser shall be responsible for payment of any and all excise, privilege, use and sales taxes, as applicable. Under no circumstance shall ACT be responsible for the payment of any such taxes.
8. Cancellation and/or Changes: All Orders are subject to cancellation or significant change only with prior written notice and consent of ACT. Any such cancellation or change in an Order shall be upon terms that will indemnify ACT for any and all costs, charges, expenses incurred by ACT, and shall included the payment by Purchaser for all finished goods, WIP, inventory of material, and special fixtures.
9. Limits of Liability and Indemnification: ACT shall at its option, repair and/or rework defective coated parts or refund the purchase price (value added for coating). ACT's liability, in any event, is limited to the return of the purchase price paid by Purchaser. No claims by Purchaser for shortage in count or defect in quality shall be made unless presented in writing and made within 10 days after receipt by Purchaser of the completed material. Purchaser hereby expressly assumes all risk of discovery of any such shortage or defect within said time. All coating services are sold without warranty of suitability or fitness for the Purchaser's particular use. Purchaser is responsible for product design and performance. ACT shall not be responsible for shortages in counts when receiving parts from the Purchaser or a third party.
10. Protection: Purchaser shall be responsible to adequately insure Purchaser's property while located at ACT's facility and when being transported to and from ACT. Purchaser shall insure its parts, at Purchasers expense, against loss or damage in such amount as Purchaser shall determine to protect its property.
11. Use of Designs, Data, Etc.: ACT agrees that it will keep confidential the features of any equipment, tools, gauges, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Purchaser and use such items only in the production of goods or furnishing of services under the Order or other Orders from Purchaser and not otherwise unless Purchaser's written consent is first obtained. Upon completion or termination of the Order, ACT shall return all such items including copies to Purchaser or make such other disposition thereof as may be directed or approved by Purchaser.
11. Force Majeure: In the event either party shall be delayed or hindered in or prevented from performance as provided herein or in the Order by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under these terms and conditions, then performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this paragraph shall not (a) operate to excuse Purchaser from prompt payment of services rendered by ACT or any other payment required by these terms and conditions and the Order, and (b) be applicable to delays resulting from the inability of Purchaser to obtain financing or to proceed with its payment obligations because of a lack of funds.
12. Waiver: Either parties' failure to insist on the performance by the other party of any terms or conditions hereof or failure to exercise any right or privilege reserved herein, or either parties' waiver of any breach or default hereunder by the other party shall not, thereafter, waive any other terms, conditions, rights, privileges, breaches or defaults, whether of the same or similar type or not.
13. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COATING WORK PERFORMED AND SERVICES PROVIDED BY ACT IS PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, AND ACT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES PROVIDED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE AND NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES, WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PEFORMANCE OF ACT'S SERVICES PROVIDED TO PURCHASER, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
14. Termination Upon Default: Purchaser shall have the right to terminate the Order in whole or in part for default occasioned by ACT's failure to perform in accordance with the requirements of the Order. Such termination shall be without liability to Purchaser except for completed services performed and completed parts delivered to Purchaser in accordance with the Order. ACT's liability for damages, in any event, shall be limited to the return of the purchase price paid by Purchaser.
15. Termination Upon Insolvency or Bankruptcy: Either party may cancel the Order without liability in the event of the insolvency, bankruptcy, reorganization, arrangement, receivership or liquidation by or against the other party or if either party makes an assignment for the benefit of creditors or ceases to carry on business in the ordinary course.
16. Modification: No modification, waiver or addition to these terms and conditions shall be binding upon ACT, unless made in writing and signed by ACT and Purchaser.
17. Assignments: ACT shall not assign any Order or any portion of an Order or work there under or any interest therein without the prior written consent of Purchaser, except that ACT may make an assignment to an affiliated person, firm or corporation or to any corporation succeeding to ACT's business. In addition, ACT may make an assignment of monies due or which may become due under an Order to a bank or other financing institution. In the event of such assignment, ACT shall provide to Purchaser, in addition to written notice of assignment, a true copy of the instrument of assignment for Purchaser's information only.
18. Tort Obligations: Purchaser specifically hereby waives the right to sue in tort as an addition to, or as an alternative to, suing in contract, with respect to any matter which is addressed, in whole or in part by the terms and conditions set forth herein.
19. Governing Law: The term and conditions set forth herein shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
THESE TERMS AND CONDITIONS ALONG WITH THE ORDER EMBODY THE ENTIRE AGREEMENT BETWEEN ACT AND PURCHASER AND NO UNDERSTANDING OR AGREEMENTS, VERBAL OR OTHERWISE, IN RELATION HERETO EXISTS BETWEEN THEM EXCEPT AS EXPRESSLY SET FORTH HERE OR IN A SEPARATE WRITING SIGNED BY BOTH ACT AND PURCHASER.
Advanced Coating Technology