Terms and Conditions
Coating Technologies Inc.
21438 North 7th Ave.
Phoenix, AZ 85027
In consideration of the Products and Services to be provided by CTI and payment to be made by Customer, CTI and Customer agree to the following Terms and Conditions (“Agreement”).
1. Parties. You (“Customer”), by placing an order, hereby acknowledge and accept the following terms and conditions and acknowledge that these terms and conditions apply to all Services and Products provided by CTI.
2. Description of Services. CTI shall provide electroplating and metal finishing services for Customer (“Services”).
3. Quotations. CTI may provide a price quotation to Customer (“Quotation”). Quotations may be accepted by Customer no more than ninety (90) days after the date of issuance defined by the Quotation. After ninety (90) days, Quotation prices and terms are subject to change without notice. Engineering changes submitted by Customer require a new Quotation.
4. Acceptance. Upon receipt of a Quotation, Customer may accept the offer provided in the Quotation by:
(a) Executing a separate written agreement with CTI, incorporating these terms and conditions;
(b) Delivering to CTI a purchase order for Products and/or Services with quantities and delivery dates acceptable to CTI;
(c) Accepting delivery of the Products and/or Services; or
(d) Paying the price for Products and/or Services as agreed to in writing by CTI and Customer and/or set forth in the Agreement.
5. Price Terms.
(a) Part Price. Customer agrees to pay the part price for each individual part as detailed in the Quotation (“Part Price”).
(b) Revised Part Price. Except as indicated above, the Part Price for any part is subject to change at any time in the sole discretion of CTI. CTI shall be under no obligation to continue to process parts at the agreed Part Price. In the event that CTI elects to revise the Part Price, CTI shall provide Customer written notice (by U.S. Mail, E-mail, Common Carrier, or Facsimile) (“Written Notice”) ten (10) calendar days prior to the imposition of a Revised Part Price. The Written Notice shall indicate the part number(s) subject to Part Price revision, state the new Revised Part Price for each part (“Revised Part Price”), and state the date that the Revised Part Price will be imposed (the “Revised Price Date”). If proper notice is given to Customer, any parts processed after the Revised Price Date shall be subject to the Revised Part Price. Customer, by delivering any additional parts for processing by CTI or by accepting delivery of any goods from CTI that were processed after the Revised Price Date, shall be deemed to accept the Revised Part Price. If Customer wishes to contest the Revised Part Price, they must provide Written Notice to CTI five (5) calendar days prior to the Revised Purchase Date.
(c) Part Price for New Orders and Parts. Customer and CTI acknowledge that, due to the nature of the metal finishing industry, new parts are frequently shipped to CTI prior to any discussion concerning the price term for such new parts. In such a case, CTI and Customer shall execute a new agreement stating the part number(s) and the part price(s) for each new part. In the event that CTI and Customer cannot agree on a Part Price for new or additional parts, CTI shall have the right to cease processing any new parts for which the parties have failed to agree on a price term. In no event shall the part price for a previously quoted part be construed to apply to a distinct or different part for which the parties have been unable to agree on a price term.
(d) Minimum Lot Charges. CTI employs minimum charges for all processes. When a part price total falls under the minimum lot charge the minimum lot charge will be the prevailing price.
(e) Environmental Fee. CTI charges a fee to assist in offsetting CTI’s environmental compliance costs. The environmental fee is assessed to all processing charges and is imposed as a percentage of the processing charges. Any modification or waiver of the environmental fee must be approved in writing by a duly authorized CTI representative.
(e) Termination. Except as indicated in Paragraph above, CTI shall be under no obligation to continue to process parts at the agreed Part Price, Revised Part Price, or the Minimum Lot Charge. In the event that CTI elects to terminate the Agreement, CTI shall provide Customer Written Notice of such election ten (10) days prior to the date of termination of service. CTI shall not be required to furnish Written Notice if the termination is due to Customer’s failure to make any payment as detailed below.
6. Payment Terms. For Customers with established credit, terms are net thirty (30) days from the date of shipment. Credit is extended solely at CTI’s discretion and is subject to revocation at any time. For Customers without established credit, or for any other reason at the sole discretion of CTI, the terms shall be COD. All payments must be in U.S. dollars. CTI shall have the right of set-off and deduction for any sums owed. If Customer fails to make timely payment, CTI, at its sole option, reserves the right to defer any shipment until such payment is made, or may cancel any or all of the remaining unshipped order. A service charge in the amount of 1.5 % per month (18% per annum) will be added to all invoices that are sixty (60) days past due as of the tenth day of the month following the due date of the invoice. Customer shall be liable for all costs and expenses incurred by CTI if Customer fails to perform its obligations pursuant to this Agreement, including, but not limited to, collection costs, attorneys’ fees and expenses, and all other expenses incurred by CTI to collect on any unpaid amount. CTI shall have a lien on Customer’s property in CTI’s possession until the outstanding balance on the property is satisfied which may extend to property that is subject to an installment contract. CTI’s right shall be considered a security interest under the Uniform Commercial Code and foreclosure thereon shall be in the manner prescribed for security interests in the Uniform Commercial Code.
8. Modification. None of the terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written agreement of the parties. Terms from Customer are not accepted and do not constitute part of this Agreement unless expressly agreed to in writing by the CTI and Customer. Any change in circumstance in materials, application or product will constitute a modification that shall be approved by Customer and reflected in the final price.
9. Special Orders. Special orders or accounts may require CTI to stock ample volumes of product to meet production requirements. Upon termination of a Special Order contract, or inactivity, Customer agrees to purchase the product so ordered, at cost, from CTI. Special tools, racks and fixtures required for the performance of the work herein described which have been designed and/or built by CTI shall be and remain CTI property whether or not the Customer is charged with time and/or material in connection therewith.
10. Cancellation. In the event of cancellation of any or all of the order for products and/or services under this Agreement by Customer, Customer shall reimburse CTI for all work completed, work in process and for tooling and engineering expenses incurred in connection with such order, including any lost profit.
11. Force Majeure. CTI shall not be liable for any delay in or impairment of performance resulting in whole or in part from catastrophic events, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather, acts of war, acts of terrorism, accidents, thefts, fires, acts of God, or any other circumstance or cause beyond the control of CTI. In the event that such occurrences prevent or interfere with CTI’s ability to complete the Agreement, Customer shall accept as full and complete fulfillment of the order such portion of the goods as CTI is able, under the circumstances to procure and deliver in accordance with the same. The provisions stated in this paragraph are for the sole benefit of CTI and Customer, and confer no rights, benefits or claims upon any person or entity not a party hereto.
12. Risk of Loss. Notwithstanding any agreement to pay freight or other transportation charges, the risk of loss shall remain with Customer through receipt of the product by CTI and, upon receipt, is the responsibility of Customer once work is completed. Ownership and risk of loss pass to Customer on delivery of the product to the common carrier, or any other person or entity that receives the product for delivery to Customer. During storage and transportation of Customer’s material and/or merchandise, Customer’s containers, used for delivery to CTI, shall be used for storage and/or reshipment, and any damage resulting from reuse of customer supplied containers shall be the sole responsibility of Customer. CTI shall not, under any circumstances, be considered as an insurer of Customer’s material or merchandise and shall not be liable, regardless of cause, for loss by fire, explosion, theft, pilferage, vandalism, casualty or acts of God while such material or merchandise is in CPT’s possession. Should Customer desire other packaging or containers, CTI will charge for material and handling, only upon receipt of a written order. Additional charges may be incurred by Customer for repackaging goods to other specifications. If product is damaged in transit, Customer must file any claim with the carrier and CTI shall have no liability as a result of any damage occurring in transit.
13. Shipping Charges. Unless agreed otherwise by the parties, Customer hereby agrees to be responsible for any and all costs or charges for freight transfer and delivery of the product.
14. Limited Warranty and Exclusion. CTI warrants that the product conforms to Customer’s specifications supplied by Customer, in writing, and that such processing and finishing shall be free from defects in material or workmanship at the time of delivery. Warranty coverage applies on a case-by case-basis and subject to the following:
(a) If Customer specifies methods and procedures to be followed, CTI assumes no responsibility for the correctness of such method and procedure or the results due to compliance with said instructions. In the absence of full disclosure by Customer of the use of material or parts to be processed and finished, CTI assumes no liability for subsequent failures or defects.
(b) Due to the nature of the plating process there is a risk that a small percentage of parts will be lost in the plating tanks. No claim for shortage in weight, defect or count will be allowed unless made, in writing, within five (5) calendar days after receipt of product by Customer or the Customer’s consignee to whom it was delivered (“Notice of Defect”), provided however, a shrinkage or defective quantity in bulk processing of two (2%), shall be allowed without charge or liability. CTI shall not be responsible for weight counts or their inspection functions or for merchandise received from third parties on behalf of Customer.
(c) Metal finishing over anything other than raw, new metal may cause problems with the final finish. Specifically, previous organic coatings, hot rolled steel, pre-plating, corrosion, pickling, stripping, polishing compounds, or others, can cause problems with subsequent coatings. Pre-production samples are recommended but even successful samples do not insure perfect results in production. CTI will not bear responsibility for these issues.
(d) In the event that results of metal finishing operations are unsatisfactory due to metal imperfections, changes in grade or composition of materials, manufacturing and/or fabrication imperfections, usages for which the plating or other finishing operation was not reasonably designed, and similar variables over which CTI has no control, Customer will be required to pay the contracted amount for the finishing operation performed.
(e) Upon receipt of timely notice of defect from Customer or Customer’s consignee, and, unless otherwise specified in writing, any defect that has been reported by Customer as defective in material or workmanship shall be examined by CTI, at CTI’s facilities, with no charge to Customer for service time expended. It shall be the sole responsibility of Customer to return the Product to CTI for inspection within fourteen (14) calendar days of the Notice of Default. Should Customer fail to return the Product to CTI within the allotted time for inspection, no claim shall be allowed. If examined product is found not to be defective or is not, for some other reason, within the warranty coverage, CTI’s service time expended shall be charged to Customer. If product is found to be defective due to CTI’s work, CTI’s obligation shall be limited to providing remedial service to repair the defect or, upon CTI’s sole and absolute discretion, to refund the amount of the purchase price paid for the product to the extent that the product is damaged. CTI’s total liability in any case shall be limited to the amount paid to CTI for the Products and Services.
(f) Product returned to CTI under claim of defect must not be altered structurally or chemically after it was processed by CTI. Processing or assembly of any such product by Customer or its consignee, or any other party, shall constitute a waiver of this warranty and any liability by CTI.
(g) CTI hereby disclaims any warranty under this Agreement if the product is subject to abuse, misuse, negligence accident or any other damage, not caused by CTI, or if Customer fails to perform any of its duties under this Agreement.
(h) CTI reserves the right, in its sole and absolute discretion, either to reject work or to charge for finishing any base metal that is below our agreed standard.
(i) CTI assumes no responsibility for defective plating or other finish on materials or merchandise previously plated or finished by others.
(j) Localities may have varying regulations governing sales, construction, installation, and/or use of products for certain purposes. CTI does not guarantee compliance with such regulations and is not responsible for how the product is used. Before placing an order with CTI, it is the sole responsibility of Customer to review the product application, and any applicable statute, ordinance or other regulation which may govern the use of the product. It shall be the sole responsibility of Customer to inform CTI, in writing, of any such need for compliance. CTI shall not be liable for any claim based upon the failure of Customer to comply with this Paragraph.
(k) No specification with respect to any part of this Agreement shall constitute a warranty, express or implied, against any claims for infringement of patents, copyrights or trademarks. CTI shall not be responsible to Customer, or any other person or entity, for or on account of any such claim or liability. Should any party make a claim against CTI under this paragraph, Customer hereby agrees to indemnify, defend and hold harmless CTI for any damages, including attorneys’ fees and expenses, incurred by CTI for defending such claim.
(l) CTI makes no warranties or representations, express or implied, as to workmanship, performance, quality, durability, fitness for purpose or merchantability for any of the articles we process except as otherwise stated herein. This disclaimer is for all liability including, but not limited to, consequential, incidental and special damages. The only warranties applying to the Products and Services are those which are written and are specifically provided by CTI. The warranty contained herein is the only warranty applicable to this Agreement.
15. Waiver. Except as expressly provided in this Agreement or in a writing signed by the parties to this Agreement, the failure or delay of either party to this Agreement to insist in any instance on strict performance of any provision of this Agreement shall not be construed as a waiver of that provision or the relinquishment of any rights under that provision in the future, but the provision shall continue and remain in full force and effect.
16. Liquidated Damages. It is understood and agreed that CTI’S liability, whether in contract, tort, or any other legal theory, under any warranty, in negligence or otherwise, shall not exceed the amount of the processing charges paid by Customer and under no circumstances shall CTI be liable for special, indirect or consequential damages.
17. Indemnification. Customer agrees that CTI shall not be held liable for, and hereby agrees to indemnify, defend and hold harmless CTI for (1) loss of use resulting from pre-existing damage to Customer’s property while in CTI’s possession, custody or control, (2) demands, claims suits losses, damages, costs and expenses, including attorneys’ fees, arising out of bodily injury to any person or damage to any property caused by or resulting from the negligence of Customer or (3) loss resulting from damage to Product due to CTI’s application process. Customer states and warrants that it has sufficiently investigated and approved CTI’s application processes and applications and assumes full responsibility for any alteration or damage to Customer’s product during or as a result of CTI’s application process. CTI shall reimburse Customer only for damage to Customer’s product due to CTI’s gross negligence.
18. Severability. If any provision of this Agreement shall be deemed unenforceable or invalid by operation of law, the remaining parts of this Agreement shall remain in full force and effect.
19. Attorneys’ Fees. If any action at law or in equity is commenced by either party to enforce or interpret the terms of this Agreement, the party finally prevailing in such proceeding or action (after appeal, if any) shall be entitled to recover from the unsuccessful party reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which the prevailing party may be entitled.
20. Governing Law; Forum Selection. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ARIZONA (WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES). EACH PARTY HERETO IRREVOCABLY AGREES THAT ANY AND ALL ACTIONS OR PROCEEDINGS BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT SHALL BE ADJUDICATED IN THE COURTS LOCATED IN MARICOPA COUNTY IN THE STATE OF ARIZONA.
21. Uniform Commercial Code. This Agreement shall govern the relationship between the parties. To the extent this Agreement is inconsistent with the Uniform Commercial Code of the State of Arizona, this Agreement shall prevail. To the extent this Agreement is silent, the Uniform Commercial Code of the State of Arizona shall control.
22. Integration. Customer has thoroughly examined and become familiar with the terms of this Agreement. Customer’s acceptance of this Agreement or Customer’s delivery of any parts to CTI or the acceptance of any finished parts by Customer shall constitute agreement by Customer to all of this Agreement’s specifications, terms and conditions. Acceptance of the terms contained herein is expressly conditional to the formation of a contract between CTI and Customer. Any other paperwork on Customer’s own form(s) containing statements, clauses or conditions modifying, adding to, repugnant to, or inconsistent with the terms in this Agreement are not accepted and do not constitute part of the Agreement between the parties unless expressly agreed to in writing by CTI and Customer. CTI’s failure to object to provisions contained in any communication from Customer shall not be deemed an acceptance of those provisions or as a waiver of the provisions of this Agreement. None of CTI’s representatives have authority orally to modify, rescind, or revise any of these terms, and these terms constitute the entire agreement of the parties with respect to the subject matter of this Agreement. Any waiver or revision of the terms of this Agreement to be effective must be in writing and signed by CTI and Customer.
Coating Technologies Inc.
21438 North 7th Avenue
Phoenix, AZ 85027