Innotek Powder Coatings

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U.S. Credit Application Form • Terms & Conditions

1. Acceptance. Any order by a customer ("Buyer") is subject to acceptance by Innotek Powder Coatings, LLC ("Seller") at Midland, Texas. THESE TERMS AND CONDITIONS SHALL APPLY TO AND GOVERN ANY OF BUYER'S ORDERS, AND IN CASE OF ANY INCONSISTENCY BETWEEN THESE TERMS AND CONDITIONS AND BUYER'S ORDER, THESE TERMS AND CONDITIONS SHALL PREVAIL. SELLER OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS PROPOSED BY THE BUYER IN ITS ORDER, AND IF DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS ARE INCLUDED IN BUYER'S ORDER, SUCH TERMS AND CONDITIONS SHALL BE VOID AND A CONTRACT FOR SALE WILL RESULT ONLY UPON SELLER'S TERMS AND CONDITIONS STATED HEREIN.

2. Taxes. Seller's price does not include any local, state or federal taxes or duties of any kind which may be applicable to the sale, use or any other disposition of the goods, services or work delivered to Buyer. Consequently, in addition to the price specified for such items, the amount of any present or future taxes or duties mentioned above shall be paid by Buyer. Buyer shall be responsible for ad valorem taxes on all goods upon Buyer’s receipt of the goods as described in Section 4 below.

3. Terms of Payment. Payment to Seller shall be net cash in United States funds in Midland, Texas, thirty (30) days from date of shipment by Seller, unless otherwise agreed in writing.

4. Receipt of Goods, Services or Works; Place and Terms of Delivery. Any goods shall be deemed received by Buyer and title to such goods shall pass to Buyer when such goods are delivered to Buyer F.O.B. at Seller's plant. Any services or works shall be deemed received by Buyer when performed. Seller shall not be in default or liable to Buyer for any costs, expenses or damages on account of any delays or failure to deliver attributable to strikes, fires, epidemics, industrial disputes, government control and restrictions, war, acts of God, time required for obtaining licenses or other causes beyond Seller's control.

5. Limited Warranty. Seller warrants that all goods furnished by Seller will be free from defects in materials and workmanship for a period of one year from the date of delivery to Buyer. If, within one year from the date of shipment by Seller, the goods do not meet with the warranties specified herein and Buyer notifies Seller promptly in writing, Seller agrees to replace such goods. This warranty does not apply to loss or damage to the goods due to abuse, mishandling, accident or failure to follow Seller’s written instructions as to the application or use of such goods. Seller's obligation shall be limited to the replacement of goods F.O.B. Seller's plant. All warranties, express or implied in law, are subject to the requirement that any storage, handling, application or use of goods furnished by Seller will be strictly in compliance with Seller’s written instructions, and if not, all warranties, express or implied, shall automatically terminate. SELLER SHALL NOT BE LIABLE FOR INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. THE WARRANTIES CONTAINED IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, AND NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, APPLY AND NO EXPRESS WARRANTY OR GUARANTY, EXCEPT AS MENTIONED ABOVE, GIVEN BY ANY PERSON, FIRM OR CORPORATION WITH RESPECT TO GOODS, SERVICES OR WORKS FURNISHED BY SELLER SHALL BIND SELLER.

6. Liability. The liability of Seller with respect to the goods, services or works, sold or furnished by it shall be expressly limited to the replacement of goods F.O.B. Seller’s plant as set forth in the Limited Warranty clause in Section 5 above.

7. Risk of Loss. The risk of loss from any casualty to the goods or materials furnished by Seller, regardless of the cause, shall be on Seller up to the time of receipt of the goods or materials by Buyer at the place of delivery as specified in Section 4 above. Thereafter, such risk shall be on Buyer, including any goods or materials thereafter returned to Seller, until Seller’s receipt of such goods or materials.

8. Disclaimer of Economic Analysis Assistance. Seller expressly disclaims and negates any implied or express warranty as to the accuracy or completeness of (i) any information, analysis and conclusions heretofore furnished to Buyer, or (ii) any of the assumptions, levels of performance, equipment specifications or values reflected in such information, analysis or conclusions whether supplied by or on behalf of Seller or by some other source. Seller provided such information at the request of Buyer and with the express understanding that under no circumstances shall Seller's furnishing of such information or any other information constitute or be deemed by Buyer to constitute a representation or warranty that Seller's products and services will perform in a manner consistent with the information, analysis or conclusions reflected in such information. Buyer's acceptance of such information shall constitute its acknowledgment of and agreement with the contents of this disclaimer and shall further constitute Buyer's express recognition and acknowledgment that any action it takes with respect to Seller's products or services shall be based solely on its own independent analysis without any reliance upon any verbal communication by Seller's representatives, employees, officers or agents, the contents of such information, or the contents of any other document prepared or furnished by or on behalf of Seller except any document which constitutes a part of a definitive agreement between Buyer and Seller for the purchase and sale of identified goods and/or services of Seller.

9. Changes and Cancellations. All sales shall be final. However, if Buyer requests changes in design or specification of materials, goods or services on order, or for any reason stops work in progress, Seller's costs of complying with Buyer's request, including, without limitation, any resulting increase in price, shall be borne by Buyer.

10. Disclaimer of Liability/Indemnity. BUYER HEREBY ASSUMES (AND SELLER HEREBY DISCLAIMS) THE ENTIRE RESPONSIBILITY AND LIABILITY FOR, AND BUYER AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS, EXPERT WITNESS FEES AND ANY OTHER COSTS) FOR AND ARISING OUT OF THE BUYER’S USE OF THE GOODS FURNISHED AND SERVICES PROVIDED BY SELLER IN CONNECTION HEREWITH. BUYER’S OBLIGATION TO RELEASE, DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS APPLIES TO ALL POTENTIAL LOSSES OR DAMAGES THAT ARE ALLEGED TO BE OR ARE IN FACT RELATED, ARISE OUT OF OR INCIDENTAL TO THE BUYER’S USE OF THE GOODS FURNISHED AND SERVICES PROVIDED BY SELLER, ITS AGENTS AND EMPLOYEES AND ITS OTHER CONTRACTORS, AND THEIR AGENTS AND EMPLOYEES. BUYER’S OBLIGATION TO RELEASE, DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS APPLIES REGARDLESS OF WHETHER THE CLAIM OR LOSS IS OCCASIONED BY OR RESULTS FROM THE ACTUAL OR ALLEGED NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT, FAULT, OR OTHER WRONGFUL CONDUCT OF SELLER OR ANY OTHER PERSON, OR ENTITY, IN WHOLE OR IN PART, WHETHER SOLE, JOINT, ACTIVE OR PASSIVE, AND EVEN IF BUYER IS WITHOUT ANY LEGAL FAULT OF ANY KIND CAUSING THE ALLEGED LOSSES OR DAMAGES.

11. Governing Law. The law of the State of Texas will govern the Buyer’s and Seller's rights and duties in connection with the sale and purchase of any goods, services or works. Specifically, the provisions of the Uniform Commercial Code of the State of Texas governing sales will control as to all aspects and interpretation in connection with the sale and purchase of any goods, services or works, and that all the definitions contained therein will be applicable unless expressly provided otherwise. Any litigation or alternative dispute resolution proceeding arising out of these Terms and Conditions of Sale shall be brought in Midland County, Texas.

12. Successor and Assigns. These Terms and Conditions of Sale shall be binding upon and inure to the benefit of all successors and assigns of the parties.

13. Attorneys’ Fees. If Seller is required to initiate any legal proceedings against Buyer to enforce Seller’s rights or remedies under these Terms and Conditions of Sale or at law, Seller shall be entitled to recover its attorneys’ fees.

14. Entire Agreement. These Terms and Conditions of Sale set forth the entire understanding of the parties and supersede all prior or contemporaneous understandings, representations and warranties of any kind (both express and implied) that are not stated herein.

15. Modifications and Amendments. Except for modifications that are expressly provided for hereunder, no other modification or amendment to these Terms and Conditions of Sale shall be of any force or effect unless in writing and executed by duly authorized representatives of both parties. In no event shall these Terms and Conditions of Sale be deemed modified by any acknowledgment or acceptance of documents, correspondence or orders of Buyer or forms containing terms different from or in addition to those described above, all of which are void and of no effect.