Titanium Finishing Company

TERMS AND CONDITIONS OF SALE

 

1. APPLICABILITY.

 

(a)These Terms and Conditions of Sale (“Terms”) are the only terms governing the sale of metal finishing, coating and processing, and related products (collectively, “Products”) by Titanium Finishing Company (“Seller”), to any purchaser of those Products (“Buyer”). The issuance of a purchase order, written or verbal acceptance of any quotation from Seller, or Seller’s acceptance of the shipment of parts for finishing shall constitute Buyer’s acceptance of these Terms. Notwithstanding anything herein to the contrary, if Buyer and Seller enter into a separate signed agreement covering the sale of Products in a specific transaction covered by these Terms, the terms and conditions of that agreement shall prevail to the extent they are inconsistent with these Terms.

 

(b)The accompanying quotation, purchase order, sales confirmation, shipping ticket, or invoice (the “Sales Confirmation”) and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, including all communications, both written and oral, between the parties. These Terms prevail over any of Buyer’s general terms and conditions of purchase (“Buyer’s Terms”) regardless of whether or when Buyer has submitted its purchase order or provided Seller with Buyer’s Terms. Buyer’s Terms shall not apply unless Seller has specifically accepted Buyer’s Terms in writing and signed by an authorized representative of Seller and such writing expressly acknowledges and accepts Buyer’s Terms. Fulfillment of Buyer’s order of Products does not constitute acceptance of any of Buyer’s Terms and does not modify or otherwise amend these Terms.

 

(c)Any quotation provided by Seller is valid for one hundred eighty (180) days after delivery to Buyer, after which period they expire and cannot be accepted, unless otherwise agreed to by Seller. Seller reserves the right to terminate or modify any quotations prior to their expiration due to changes in process, specification, or buyer modifications.

 

2. PARTS.

 

(a)Parts provided by Buyer for finishing must be free of rust, heavy oil, grease, foreign debris, metal shavings, and surface defects/contamination that do not come off in the metal finishing process. Seller is not responsible for inspecting the condition of parts prior to finishing, nor is Seller responsible for the failure of the parts to withstand the metal finishing process except to the extent such failure is the result of Seller’s negligent acts or omissions in finishing the parts. If Seller incurs any costs in processing parts because such parts do not comply with this Section 2(a), Seller shall be entitled to charge Buyer, at Seller’s discretion (and Buyer shall pay Seller) for such costs. Such costs may include, but are not limited to, costs associated with, degreasing, cleaning, blasting, stripping and recoating the parts.

 

(b) Seller is not responsible for any costs or delays associated with mixed parts or sorting. If Seller incurs any costs in processing or sorting mixed parts, Seller shall be entitled to charge Buyer, at Seller’s discretion (and Buyer shall pay Seller) for such costs. Such costs may include, but are not limited to, the cost of labor for the time required to sort non-conforming material, and mixed parts. If Seller is delayed in finishing parts because of the need to sort parts, the time for delivery set forth Section 3 shall begin running on the date Seller completed the sort of the mixed parts, and Seller shall not be liable to Buyer for any costs associated with the delay, including, without limitation, the cost of expedited freight.

 

3. DELIVERY.

 

(a)Seller will deliver or make available the finished Products to Buyer within a reasonable time after Seller’s receipt of parts for finishing from Buyer. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Seller shall not be liable for any delays, loss, or damage in transit, and any failure to deliver within the estimated time for delivery will not be a material breach of contract on the part of Seller.

 

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to Seller’s place of business located at 248 Main Street, East Greenville, Pennsylvania 18041 (the “Delivery Location”), using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products within seven (7) calendar days of Seller’s notice that the Products have been delivered to the Delivery Location.

 

(c) Notwithstanding anything herein to the contrary, Seller may, with the approval from Buyer, make partial shipments of the Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

 

(d) If for any reason Buyer fails to accept delivery on the date set forth in Section 3(b), or if Seller is unable to deliver the Products at the Delivery Location on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its discretion, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

 

4. QUANTITY

 

If in its performance of this Agreement Seller delivers to Buyer a quantity of Products of up to two percent (2%) less than the quantity of parts Seller receives from Buyer, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the shortfall and shall pay for such Products the Price(s). For the avoidance of doubt, the two percent (2%) figure shall be calculated against all parts Seller receives from Buyer under this Agreement (e.g., if Seller receives six shipments of parts from Buyer over the course of six months, then the two percent (2%) figure shall be calculated against all six shipments). The quantity of any installment of Products as recorded by Seller on delivery is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

 

5. SHIPPING TERMS.

 

Delivery shall be made FOB Seller’s location at 248 Main Street, East Greenville, Pennsylvania 18041. Quotations do not include any shipping costs. Seller is not responsible for any freight, transportation, insurance, handling, demurrage or similar charges, which charges shall be the sole responsibility of Buyer. Any shipping rates included in Seller’s quotations are estimates.

 

6. TITLE AND RISK OF LOSS.

 

Buyer shall retain title to the parts it provides to Seller for finishing. Risk of loss passes to Buyer upon delivery of the Products at the Delivery Location.

 

7. AMENDMENT AND MODIFICATION.

 

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

 

8. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.

 

(a) Buyer shall inspect the Products within thirty (30) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. For purposes of this Section only, the term “Products” includes any samples. A Product is nonconforming only if it does not meet the specifications set forth in the Sales Confirmation.

 

(b) If Buyer timely notifies Seller of any nonconforming Products, Seller shall, in its sole discretion, (i) repair such nonconforming Products, or (ii) credit or refund the Price of such nonconforming Products at the pro rata contract rate, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If Seller exercises its option to repair nonconforming Products, Buyer shall ship, at Seller’s cost but at Buyer’s risk of loss, the nonconforming Products to Seller’s facility located at 248 Main Street, East Greenville, Pennsylvania 18041. Delivery of the repaired Products shall be made in accordance with Section 3. At no point shall (ii) exceed the sum of two times the cost of the coating Seller is supplying.

 

(c) Buyer acknowledges and agrees that the remedy set forth in Section 8(b) is Buyer’s exclusive remedy for the delivery of nonconforming Products. Except as provided under Section 8(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.

 

 

 

9. PRICE.

 

(a) Buyer shall purchase the Products from Seller at the price(s) (the “Price(s)”) set forth in the Sales Confirmation, provided that Seller may adjust pricing based on the outcome of an initial sample or production run. Seller reserves the right to correct any mathematical or typographical errors in the Sales Confirmation. Seller also reserves the right to change pricing for increases in its costs for material, labor and benefits, energy or other items outside of Seller’s control. Seller also reserves the right to change pricing if Seller failed to accurately estimate the amount of raw material that would be consumed in order to provide the metal finishing services. If the Price(s) should be increased by Seller before delivery of the Products, then these Terms shall be construed as if the increased price(s) were originally inserted in this Agreement, and Buyer shall be billed by Seller on the basis of such increased price(s).

 

(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, however, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

 

10. PAYMENT TERMS.

 

(a) Buyer shall pay all invoiced amounts due to Seller on delivery unless Seller notifies Buyer in writing of Buyer’s credit approval, in which case Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer, ACH, corporate check or credit card (with applicable 3% surcharge) and in US dollars. Extended terms may be granted at sole discretion of Seller.

 

(b) Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts due and owing to Seller.

 

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s alleged breach, bankruptcy or otherwise.

 

11. LIMITED WARRANTY.

 

(a)Seller warrants to Buyer that, for a period of one (1) year (“Warranty Period”), such Products will meet the specifications set forth in writing with the Sales Confirmation and be free from material defects in material and workmanship. After this period Seller does not warranty Products.

 

(b)EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A) ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (1) WARRANTY OF MERCHANTABILITY; (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (3) WARRANTY OF TITLE; OR (4) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

 

(c)Products manufactured by a third party (each a “Third Party Product”) may constitute, contain or be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

 

(d)Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer provides written notice of the alleged defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or should have discovered the alleged defect; (ii) Seller is given a reasonable opportunity after receiving the written notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination of the Products to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are, in fact, defective.

 

(e) Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Products after giving notice of an alleged breach of warranty; (ii) the defect arises out of Buyer’s failure to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller.

 

(f) Subject to Section 11(d) and Section 11(e) above, with respect to any Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller requests, Buyer shall, at Seller’s expense, return such Products to Seller.

 

(g) THE REMEDIES SET FOR IN SECTION 11(F) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).

 

12. LIMITATION OF LIABILITY

 

(a)IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

(b)IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE TOTAL AMOUNT OF MONEY THAT BUYER PAID TO SELLER FOR THE PRODUCTS.

 

(c)The limitation of liability set forth in Section 12(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

 

13. CANCELLATION AND TERMINATION.

 

(a)Buyer may not return any Products without prior written approval from Seller. Orders placed with and accepted by Seller may not be cancelled except with Seller’s written consent prior to shipment acceptance of Seller’s cancellation charges, which acceptance shall protect Seller against all costs and losses. Seller expressly reserves the right to cancel any sale hereunder prior to delivery in Seller’s sole discretion without incurring any liability to Buyer beyond refunding monies Buyer already paid to Seller.

 

(b)In addition to any other remedies that Seller may have, Seller may terminate these Terms upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and said failure to pay continues for seven (7) calendar days after Buyer’s receipt of said written notice; (ii) fails to otherwise perform or comply with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or otherwise commences or has commenced against it proceedings relating to or arising out of bankruptcy, receivership, reorganization or assignment for the benefit of Buyer’s creditors.

 

14. CONFIDENTIAL INFORMATION.

 

All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

15. FORCE MAJEURE.

 

Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any obligation arising out of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

16. NO THIRD-PARTY BENEFICIARIES.

 

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

 

17. DISPUTE RESOLUTION.

 

(a)Arbitration. Any controversy or claim arising out of or relating to this Agreement (each, a “Dispute”), shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration proceedings shall be held in Montgomery County, Pennsylvania. The prevailing party in any arbitration commenced hereunder, or any litigation brought in any court arising out any Dispute, shall be entitled to recover all reasonable costs and expenses, including attorneys’ fees, incurred in such proceeding. A prevailing party is a party that recovers at least seventy-five percent (75%) of its total claims or that is required to pay no more than twenty-five percent (25%) of the claims made against it.

 

(b)Governing law. These Terms, and all Disputes arising out of this Agreement, shall be governed by and interpreted in accordance with the laws of Commonwealth of Pennsylvania, excluding its conflict of law rules. The arbitration provision in these Terms shall be governed by the Federal Arbitration Act.

 

 

18. INDEMNIFICATION

 

Buyer shall indemnify, defend and hold harmless Seller, and each of its respective officers, directors and employees, from and against any and all claims, losses, damages, costs, and expenses (including attorneys’ fees and amounts paid in settlement in good faith) which may be suffered or incurred by any of them as a result of any claim, demand, suit, proceeding or cause of action arising in any manner from: (i) any acts or omissions by Buyer, arising out of or relating to Buyer’s purchase, handling, transportation, possession, use, demonstration, marketing, sale, distribution or maintenance of the Products; (ii) any sale by Buyer to a third party for a use not disclosed to Seller in writing prior to purchase; (iii) any intentional misconduct or negligent act or omission of Buyer, its employees, or its agents; (iv) any contractual obligation assumed by Buyer to a third party; (v) any misuse or modification of Products by Buyer or its employees or agents; or (vi) Buyer’s failure to comply with any law applicable to these Terms or the performance of Buyer’s obligations herein.

 

19. NOTICES.

 

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.

 

19. SEVERABILITY.

 

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

20. SURVIVAL.

 

All terms that by their nature are intended to survive shall survive any cancellation or expiration of these Terms or any purchase order or Sales Confirmation.