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TERMS AND CONDITIONS OF SALE

 

1.  ACCEPTANCE

(a)     These Terms and Conditions of Sale (“Terms and Conditions“) shall apply to any sale of Canlak Coatings Inc. (“Seller“)’s products (“Products“) to any buyer (“Buyer“) whether pursuant to a supply agreement, purchase order, or any other sales document (collectively “Order“). If these Terms and Conditions differ in any way from the terms and conditions of any Order or if these Terms and Conditions are construed as an acceptance or as a confirmation acting as an acceptance, then acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN SUCH ORDER.  Further, these Terms and Conditions shall be deemed notice of objection to such terms and conditions of Buyer. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyer’s acceptance of the Products shall manifest Buyer’s assent to these Terms and Conditions. No addition to or modification of these Terms and Conditions will be effective unless agreed to by Seller in writing.

(b)     References to the Products include, without limitation, their packaging.

2. DELIVERY

(a)     Shipping and delivery dates are approximate but are not guaranteed unless otherwise specifically agreed in writing. Buyer shall be responsible for all storage and other costs relating to Buyer’s failure to accept delivery pursuant hereto.

(b)     Unless otherwise expressly agreed, in writing, delivery will be made F.O.B. point of shipping. All risk of loss shall pass to Buyer upon delivery of the Products by Seller to a carrier. The method and agency of transportation, unless otherwise agreed to in writing, will be selected by Seller and Seller reserves the right to ship collect. Seller’s receipt from the carrier shall be conclusive evidence of delivery.

(c)     Packaging is included in the price; Product is not returnable unless otherwise specifically agreed to in writing by Seller. Buyer will be charged a fee for returnable product as set forth below, but if returned must be returned clean, securely closed, and in good condition within ninety (90) days after receipt by Buyer. Seller will credit Buyer the amount charged less a fee. Any special packaging, requirements will incur a non-refundable additional charge.

(d)     The weight or quantity stated on Seller’s carrier’s receipt shall be conclusive evidence of the amount delivered, except in cases of manifest error.

(e)     Each delivery shall be treated as a separate contract, and partial deliveries are permitted, unless otherwise specifically agreed to in writing. Failure to make any delivery, or any breach of contract by Seller relating thereto, shall not affect any remaining deliveries.

(f)      Buyer shall promptly supply all information and assistance required for Seller to execute Buyer’s order.

(g)     If the Products are sold F.A.S. or F.O.B. vessel (Incoterms 2020), an onboard bill of lading, a mate’s receipt or other document indicating delivery alongside of the vessel or tender the vessel in conclusive evidence of delivery irrespective of whether the person giving the receipt, or the documentation has authority from Buyer to do so.

(h)     If the Products are sold C.I.F. (Incoterms 2020), a receipt of bill of lading or waybill is conclusive evidence of delivery.

(i)       Product returns for any reason will not be accepted without prior approval and Return Goods Authorization number; contact sales rep and/or customer service and provide proper documentation. All returns are subject to a 25% handling and restocking fee. This fee will be waived for only those shipments which may involve a shipping error (i.e., mis-shipments, mis-labeled product, etc.).

3. TERMS OF PAYMENT; PRICE

(a)     All prices are subject to change and orders will be invoiced at Seller’s prices prevailing at the time of shipment. All accounts are payable in U.S. funds, free of exchange, collection, or charges. In cases where price of Products includes delivery costs, any increase in such delivery costs shall be for Buyer’s account and Buyer agrees to pay Seller such increased costs.

(b)     All applicable sales or use taxes, excises, or any other taxes or charges (except net income and equity franchise taxes) imposed now or in the future by any federal, state, foreign or local authority upon the production, sale or transportation of the Products shall be for the account of Buyer. Buyer shall reimburse Seller for any such taxes, excises, or charges which Seller may be required to pay in addition to the price payable by Buyer for the Products. Buyer may, at its option and where legally permissible, elect to file a proper exemption certificate with Seller and Buyer shall be fully responsible for paying taxes direct to the taxing authority.

(c)     Credit terms, if any, both as to time and amount, may be limited or revoked by Seller at any time without prior notice and thereafter 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. In circumstances described in Section 7(a), all unpaid balances owing to Seller from Buyer shall become immediately due and payable, irrespective of whether title to the products has passed to Buyer.

(d)     Time of payment of the essence. Seller reserves the right to charge interest at a rate of one and one-half percent (1 1/2%) per month or such lesser rate permissible by applicable law for any amounts not paid in accordance with invoiced terms.

(e)     Buyer hereby grants to Seller a security interest in all Products and in all proceeds thereof, until the complete purchase price and all additional costs and charges are paid by Buyer. At the request of Seller, Buyer hereby agrees to execute such documents reasonably required to perfect Seller’s security interest in the Products.

(f)      Buyer shall have no right to withhold or offset any amount due Seller because of any claim by Buyer against Seller pursuant to the Order or any other order or agreement.

(g)     Standard Terms: Net 30 Days (must be current and credit worthy).

4. SOLE AND EXCLUSIVE WARRANTY

(a)     Seller warrants to Buyer that the Products, at the time of delivery to Buyer, shall conform to Seller’s published specifications covering such Products in effect at the time of manufacture (“Seller’s Warranty“). THE WARRANTY SPECIFIED ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE PRODUCTS AND ARE IN LIEU OF ANY OTHER WARRANTY WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Certification by Seller by separate writing as to compliance with specifications, blueprints, part numbers, quantity, test or otherwise will not create any warranty by or other obligation of Seller. The warranty does not apply to Products which have been damaged in transit if Buyer is responsible for delivery of the Products to Buyer’s facility. Buyer shall notify Seller of any Product which does not conform to Seller’s warranty within a reasonable time after delivery of such Products, but in no event later than thirty (30) days following such delivery. Failure to notify Seller of such nonconformance shall constitute a waiver by Buyer of any claims with respect to such nonconforming Products.

(b)     In the event of breach of the warranty, Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive obligation shall be, at Seller’s option, the replacement by Seller of any nonconforming Product or the refund of the portion of the purchase price paid by the Buyer attributable to such nonconforming Product.

(c)     If Products are purchased for resale by Buyer, Buyer shall not make any representations or warranties with respect to the Products inconsistent with these Terms and Conditions and shall include in the terms and conditions of such resale disclaimers of warranties and limitations of liabilities at least as restrictive as contained in these Terms and Conditions.

(d)     Seller’s Warranty does not apply to the following Products: (i) Products identified as obsolete or substandard, or which are sold “AS IS, WHERE IS“; or (ii) Products manufactured by anyone other than by Seller (“Third Party Products”). IN SUCH CASES, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF Trade for Third Party Products, Buyer should contact the manufacturer for the specifics of such warranty, if any, and any other limitations on Buyer’s rights with respect to warranty.

5. LIMITATION OF LIABILITY

(a)     IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE OF THE PRODUCTS, OR LOSS OF GOODWILL.

(b)     NOTWITHSTANDING WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY PRODUCTS SUPPLIED HEREUNDER EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE APPLICABLE PRODUCTS, REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY.

6. FORCE MAJEURE

Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including but not limited to any failures or delays in performance caused by any strikes, lockouts, labor disputes, fires, natural disasters, epidemics, pandemics, compliance with governmental laws, regulations, or with the orders or policies of any government authority, delays in transit or delivery on the part of transportation companies, or failures of source materials, including price increases of such source materials that affect Seller’s ability to perform.  In such event, Seller may, at Seller’s option, be excused from performance or allocate deliveries as Seller, in its sole discretion, deems appropriate. Without limiting the generality of the foregoing, Seller may without liability suspend or terminate (in whole or in part) its obligations under any order from Buyer (“Order”) if Seller’s ability to manufacture, supply, deliver, or acquire materials to produce the Products by Seller’s normal means is materially impaired.

7. TERMINATION AND SUSPENSION

(a)     Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the Contract while investigating any claim to prior shipments (under any Order) of Products or in the event of any of the following circumstances:

(i) Buyer fails to take delivery of or to pay for the Products as required herein, or breaches any other term of the Order or any other contract between Buyer and Seller;

(i)       Buyer fails or refuses to furnish Seller with such information and assurances as Seller may request about Buyer’s financial and operating conditions as affecting Buyer’s ability to purchase Products under this Order and, to the extent permitted by law, in the event of Buyer’s insolvency, the filing of a voluntary or involuntary petition in bankruptcy by or against Buyer, the appointment of a receiver or trustee for Buyer, Buyer’s execution of an assignment for the benefit of creditors, or a comparable event; or  

(ii)     Reasonable grounds for insecurity arise with respect to the performance by Buyer of its obligations under any Order and Seller so notifies Buyer.

8. INTELLECTUAL PROPERTY

Buyer shall not use in any manner, any trade names or trademarks applied to or used by Seller with respect to the Products, unless otherwise permitted by Seller in writing.

9. CONFIDENTIALITY

Buyer acknowledges and agrees that the terms of this Order, including without limitation any pricing information for the Order, are confidential (“Confidential Terms“). Buyer agrees (i) not to disclose, directly or indirectly, to any third party any portion of the Confidential Terms without the prior written consent of Seller; (ii) to take all reasonably necessary precautions to protect the confidentiality of the Confidential Terms; and (iii) to promptly advise Seller in writing upon learning of any unauthorized use or disclosure of the Confidential Terms.

10. ADVISE OR ASSISTANCE

Recommendations and advice by Seller for the use of Products are furnished gratuitously and are based upon information believed to be reliable. Buyer’s use of or reliance upon the same shall be at Buyer’s risk. SELLER’S SOLE LIABILITY WITH RESPECT TO SALE OF PRODUCTS TO BUYER IS SET FORTH IN SECTION 5 OF THESE TERMS AND CONDITIONS.  Any agreement between Buyer and Seller concerning advice, or assistance given to Buyer by Seller for a separate fee shall be contained only in a separate written agreement.

11. HEALTH AND SAFETY AT WORK

(a)     Buyer shall ensure that all Products are safely and lawfully received; stored, maintained, used, and applied by Buyer, and that Buyer obtains relevant information in Seller’s possession relating thereto. Seller maintains and makes freely available to Buyer product safety data information, and it is Buyer’s responsibility to request such information if it is not provided by Seller.

(b)     Buyer shall insure that all appropriate safety information (whether supplied by Seller, Buyer, or others) is distributed and drawn to the attention of customers and all others (including Buyer’s employees) who require it for safe handling or use of the Products.

12. GENERAL

(a)     Buyer may not assign its right under the Order without Seller’s prior written consent.

(b)     All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (a) on the date of personal delivery, (b) three, (3) days after the date of deposit in United States mail, postage pre-paid, by certified mail, return receipt requested, or (c) on the date of delivery to an internationally recognized courier service, in each case addressed to Buyer’s or Seller’s address as applicable.

(c)     Failure by Seller at any time or times to require strict performance of any provision hereof shall not be a waiver of Seller’s rights with respect to such breach or any succeeding breach of such provision or any other provision of these Terms and Conditions.

(d)     If any of the Terms and Conditions or the application thereof to any person or circumstance shall be held invalid or unenforceable, the remainder of such Terms and Conditions or the application of such provision to person or circumstance other than those to which it was held to be invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.

(e)     The Order, including without limitation the Terms and Conditions, shall be governed and construed in accordance with laws of New Jersey without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods shall not apply. All suits, actions, or other proceedings arising out of or relating to the Order or the subject matter thereof shall be brought only in Middlesex County, New Jersey, and Buyer consents to the jurisdiction of such courts. Notwithstanding the above, Seller, in its sole discretion, may bring a claim against Buyer in another court of competent jurisdiction.

(f)      In the event collection action is necessary; buyer agrees to pay costs of collection, including attorney fees and costs.

(g)     Buyer warrants that it is, and will remain, in compliance with all export and re-export requirements, including but not limited to the Export Administration Act and regulations, the Arms Export Control Act and regulations, and any orders and licenses issued there under.

13.    ALL SALES INCLUDING INTERNET ARE CONSIDERED FINAL ONCE ORDERS ARE SHIPPED, THERE ARE NO REFUNDS CREDITS OR ADJUSTMENTS GIVEN EXCEPT PURSUANT TO THE PROVISIONS OF SECTIONS 2(c) and 2(i) ABOVE.

CANLAK COATINGS

1999 Elizabeth Street – North Brunswick, NJ  08902 Phone: (732) 821-3200 Fax: (732) 821-8180

REVISED 3/24