Crossfield Product Corp. Terms & Conditions Of Sale
TERMS OF SALES ARE COD or CWO or WITH PRIOR CREDIT APPROVAL NET 30 DAYS. ALL ORDERS ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE (“TERMS”) AND NO WARRANTY SHALL BE EFFECTIVE UNTIL THE TERMS SET FORTH HEREIN ARE MET.
By proceeding with the act of purchase from Crossfield Products Corp. (“Company”), Buyer accepts and is bound by these Terms. Should any portion of these Terms be found to be unenforceable the remainder of the Terms remain in force.
1. SPECIAL PRICE QUOTATIONS: Requests for special price concessions must be approved by Company’s Sales Management prior to the placement of an order, a written copy of an Approval Special Price Approval Quotation (“SPAQ”) will be provided by the Company and must be referenced by the Buyer upon submittal of the order. A copy of the SPAQ and a Quote Number should be submitted to the Company’s Customer Service Department. Orders without the SPAQ will be processed as a standard order without special pricing.
2. NOTICE OF PRICING CHANGES: Prices, Terms, Trade Discounts, Product Stocking and Shipping Policy and Product Availability are subject to change by the Company without notice. Should prices change, the Company will attempt to communicate a general notice before the effective date of the change, however, Company cannot guarantee such notice, nor shall the Company be responsible for individual notice.
3. ACCEPTANCE OF AN ORDER and ORDER CONFIRMATION PROCEDURE: An order is not valid nor binding nor shall it be a contract binding upon the Company, until it has been received and approved at the Company’s headquarters. All orders shall be placed through Customer Service at the Company’s East Coast or West Coast headquarters. All orders are cash with order (CWO) or open account subject to credit approval by the Company at the time the order is taken. The Company cannot hold an order for longer than 60 days. Original orders older than 60 days will automatically be cancelled, excluding special orders that are accepted and acknowledged in writing by the Company.
4. CREDIT APPROVAL: You will furnish to us all financial and related information reasonably requested by us from time to time for the purpose of establishing or continuing your credit limit. Shipment and delivery of products will at all times be subject to the approval of Company’s credit department and Company may at any time decline to make any shipment or delivery except upon receipt of payment or Buyer providing security acceptable to Company. Company may file a uniform commercial code financing statement with respect to the products sold to Buyer until Buyer makes payment in full.
5. BINDING Terms: The Terms are applicable to and binding upon the sale and purchase of all products sold to Buyer by the Company. The Company agrees to sell and Buyer agrees to buy in accordance with these Terms. For the protection of both the Buyer and the Company, no revisions or amendments to the Terms shall be valid except in writing and signed by an Officer of the Company and the Buyer’s authorized representative. All sales are subject to the Terms specified herein. Any terms or conditions of Buyer’s purchase order, written order or other written order form request which may add to, alter or differ from the Company’s Terms specified herein in any respect shall not be accepted or binding upon the Company unless the Company expressly agrees to such Terms in
writing, signed by an Officer of the Company nor shall such differing terms or conditions in any way operate to modify or change the Terms specified herein. Buyer waives any objection to these Terms if Buyer does not provide written notice of such objection within ten (10) days of the date of the order and Company agrees to the objections. Buyer will be deemed to have agreed to these Terms if Buyer accepts any portion of the products ordered from Company.
6. LIMITATION OF REMEDIES: Buyer’s sole and exclusive remedy against Company for any breach of Company’s obligations, or based on any other theory of liability will be limited, to the maximum extent permitted by law, at Company’s option, to the repair or replacement of any nonconforming product for which Buyer makes a claim or the issuance of a credit for such nonconforming product in accordance with these Terms, the Warranty included herein and any instructions Company may give Buyer for the return of the product or otherwise. Buyer must obtain a return authorization from Company and give Company a reasonable opportunity to inspect the product and confirm the nonconformity. Company’s liability for any damages to Buyer of buyer’s customer will be limited to the purchase price of the nonconforming products, regardless of whether other damages were foreseeable. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDY.
7. TERMS OF PAYMENT: All remittances must be made pay-to-the-order of the Company and not to individuals. All invoices are to be paid in U.S. dollars only. All sales are made on a cash basis unless credit has been extended. Credit may be granted upon receipt from the Buyer of an up-to-date financial statement or other equally satisfactory information and the Company’s Credit Application forms properly completed. Even though credit may be granted at the time of acceptance of an order, the Company reserves the right to require satisfactory evidence of the Buyer’s financial responsibility at any time before shipment of an order and if such evidence is not furnished, the product(s) ordered may be shipped on a COD (Cash on Delivery) or a demand for CWO (Cash With Order) basis or the order shall be subject to cancellation of the order by the Company. Payment terms are NET THIRTY (30) DAYS, POINT OF ORIGIN is FOB the Company’s Warehouses in standard production and inventory packaging and does not include pallets, palletization and shrink wrap, special packaging required for air, surface ocean or other special packaging or other special requirements.
8. PAST DUE ACCOUNTS: Past due accounts, over forty-five (45) days are subject to a monthly service charge of 1% per month (12% per annum) or the maximum allowed by the Buyer’s state law, whichever is less, on the unpaid, past due balance. Accounts delinquent for sixty (60) days are automatically COD or CWO, this includes accounts delinquent for non-payment of service charges and subject to the Company’s exclusive willingness to proceed. The Buyer agrees to pay all costs and reasonable legal fees if the delinquent account is placed with an attorney and/or a collection agency. Company accepts Visa, MasterCard and American Express. There will be a service charge of 3% for Visa / MasterCard and 5% for American express when a credit card is used to pay off an account balance. There is no service charge when a credit card is used to pay balances in advance. However, cash discounts (if available) will not be granted if the payment is made with a credit card.
9. LIMITED WARRANTY: NO WARRANTY SHALL BE EFFECTIVE UNLESS BUYER HAS COMPLIED WITH THESE TERMS AND CONDITIONS. Company warrants to Buyer that for a period of one year from the date of installation of the product that such product is free from manufacturing defects. Company does not warrant or guarantee the workmanship performed by any person or firm installing its products. Company’s obligation under this warranty is limited solely to the original purchaser and solely to the remedy of repair or replacement in kind of any product which Company sold which may
prove defective in manufacture within one year from date of installation and which Company examination shall disclose to Company’s satisfaction to be defective.
Company’s obligations and Buyer’s rights under this Warranty shall be void if:
(a) the product is installed, repaired or altered by persons not authorized in writing by Company;
(b) the product is damaged by misuse, alteration or abnormal use or conditions beyond the control of Company including, but not limited to, acts of vandalism, terrorism, war, fire, natural disasters, or failure of substrates.
(c) the product is not properly installed or is damaged by the installer;
(d) the substrate is not prepared in accordance with Company installation guidelines
(e) the product is not properly maintained following installation.
(f) the product was not stored correctly prior to installation.
(g) the product was not installed within the product’s stated shelf life.
(h) the product was not installed by the original purchaser.
(i) the alleged damage was caused by settlement, cracking, warping, expansion, contraction, deflection, or other movement of the surface to which the product is applied or any other part of the building.
(j) the alleged damage was caused by infiltration or condensation of moisture in, through, or around the walls, planters and landscaping, copings, building structure or underlying or surrounding materials
IN ORDER TO MAKE A CLAIM UNDER THIS LIMITED WARRANTY, THE ORIGINAL OWNER, OR ITS REPRESENTATIVE, MUST NOTIFY COMPANY, IN WRITING, WITHIN THIRTY (30) DAYS OF DISCOVERY OF SUCH FAILURE OR DAMAGE.
IN NO EVENT SHALL COMPANY PRODUCTS CORP. BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND COMPANY’S LIABILITY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCT ITSELF. THIS WARRANTY IS EXPRESSLY GIVEN IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND ALL OTHER OBLIGATIONS OR LIABILITIES ON COMPANY’S PART, AND COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY PERSON OR PERSONS TO ASSUME FOR COMPANY ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF A COMPANY PRODUCT. COMPANY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY WHATSOEVER IN RESPECT TO ACCESSORIES, PARTS OR MATERIALS NOT SUPPLIED BY COMPANY, WHICH ARE USED IN CONNECTION WITH ITS PRODUCTS. BUYER SHALL DEFEND, INDEMNIFY AND HOLD US HARMLESS AND OUR RESPECTIVE SUCCESSORS AND ASSIGNS FROM AND AGAINST ALL CLAIMS, DEMANDS, DAMAGES, LOSSES, EXPENSES, COSTS, PENALTIES, FINES OR ATTORNEYS’ FEES, SUITS, PROCEEDINGS OR LIABILITIES ARISING OUT OF ANY WARRANTY, REPRESENTATION, ADVERTISING CLAIM OR PROMISE MADE BY BUYER OR BUYER’S AGENTS TO ANYONE RELATING TO THE PRODUCTS WITHOUT COMPANY’S ADVANCE EXPRESS WRITTEN CONSENT. THE TERM “ORIGINAL PURCHASER” IN THIS WARRANTY MEANS THAT PERSON, CORPORATION OR ENTITY TO WHOM COMPANY SOLD ITS PRODUCT OR PRODUCTS. ANY ACTION TO ENFORCE ANY WARRANTY OR FOR BREACH OF CONTRACT OR ARISING OUT OF ANY CLAIM AGAINST COMPANY PRODUCTS CORP. SHALL BE COMMENCED AND MAINTAINED PURSUANT TO THE PROVISIONS OF THESE TERMS.
BUYER ACCEPTS THESE TERMS, AND HEREBY EXPRESSLY WAIVES ANY CLAIM TO ADDITIONAL DAMAGES.
EXTENDED JOINT GUARANTEES: Extended joint guarantees are available for terms of up to five (5) years. These extended guarantees may be offered on any application of Dex-O-Tex products made in accordance with the appropriate Company Installation Guidelines, which is performed by any Factory Trained Applicator deemed to be in Good Standing by the Company. The project must be registered with the Company by the applicator and be signed by an Officer of Company in order to be valid.
10. BUYER SHIPPING: If Buyer desires to arrange for shipping of the product, Buyer shall become solely responsible for arranging said freight, including being billed direct by the freight carrier, and Company is not responsible for any damage to the product that occurs during the shipping process.
11. SPECIAL CHARGES: Shipments that the Company, in its sole discretion, believes to require special packaging shall be subject to an extra charge of a minimum of $10.00 per package. The Company reserves this right in order to meet government requirements, freight carrier requirements, to reduce potential damage, to reduce third party handling costs, including palletizing shipments of sufficient size or place said items in compliance special purpose packages.
12. RETURNS: Requests to return a product must be submitted in writing to the Company prior to making a return. No Return shall be made or accepted without prior written authorization by an Officer of the Company. Credit will not be given on material returned without written authorization. If approved, returns shall be shipped freight prepaid at the Buyer expense and approved returns are subject to a restocking and inspection fee of 20%. The Company shall reserve the right to reject and not provide credit for returned goods where the product was purchased three (3) months prior to the return date or when the product is at, near or beyond its shelf-life, or damaged, or are otherwise unsalable. There shall be absolutely no return of opened products, or non-standard, or non-stocking, or special order items. Products that are returned with written authorization from an Officer of the Company and accepted by the Company will be credited at the original purchase price or current price, whichever is lowest, less the restocking and inspection charge, less return freight incurred by the Company, if any. Credits will first apply to the oldest invoices and service charges, if any. All returns must be shipped and received at the Company’s warehouse, within five (5) working days of receipt of written authorization from the Company.
13. DEFAULT: If Company defaults on a material obligation, Buyer will provide written notice to Company specifying the default and Company shall have thirty (30) days to remedy such default. If such default is not excusable under any provision of these Terms, and Company has not remedied such default within thirty (30) days after Company’s receipt of such notice of default, Buyer may terminate the uncompleted portion of the sale, in whole or in part, by providing fifteen (15) days' prior written notice of termination to Company, during which Company shall have the right to cure such default.
14. ASSIGNMENT: Buyer cannot assign any order or any claim against Company arising directly or indirectly out of or in connection with an order without Company’s prior written consent. Company may assign, without consent, any sale and these Terms to any subsidiary or affiliate of ours or to an entity or person that acquires all or substantially all of the business to which the sale and these Terms relate.
15. PATENTS, INVENTIONS, TECHNICAL DATA: Buyer does not and will not acquire ownership of or any other rights in Company’s patents, inventions, copyrights, technical data, formulas and/or other intellectual property (collectively “Intellectual Property”) under any order, regardless of when such Intellectual Property may be or have been issued, conceived, generated or produced. Company is the sole owner of all Intellectual Property and reserves all rights in the Intellectual Property and Buyer will not reproduce or use it for any purpose whatsoever without Company’s prior written permission.
16. INDEMNIFICATION: Buyer shall indemnify, defend and hold harmless Company and Company’s affiliates, and their respective officers, directors, employees and agents, from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys' fees) related to any claim, investigation, litigation or proceeding (whether or not Company is a party) that arises or is alleged to arise from Buyer’s acts or omissions under these Terms or in any way with respect to Company’s products.
17. LIABILITY AS TO SHIPMENT AND CANCELLATION OF ORDERS: The Company’s products are sold Point of Origin and FOB from the Company’s warehouses. Air shipments and surface ocean shipments, requiring compliant packaging are expressly excluded and special packaging and shipping charge may apply. When the Company receives a written receipt from any carrier, the Company’s responsibility ceases and the shipment becomes the property of the Buyer, whether or not the Company prepays the shipping charges or not. The Company’s products are packed and delivered to the authorized carrier in good order. Breakage, damage, loss in transit and delays in delivery are beyond the Company’s control, and all claims arising therefrom must be made to the Carrier by the Buyer. The Buyer acknowledges that it is extremely important to immediately notify the delivering Carrier of breakage, damage or loss so a timely inspection may be made. This is necessary to substantiate the Buyer’s claim for loss, damage, breakage and to make a valid claim against the carrier. In order, to best protect the Buyer’s rights, the Company does not recommend drop shipments when the Buyer’s authorized receiving agent is not present at the receiving location.
18. TAXES: The Buyer shall be subject to the payment of all federal, province, state, county, parish, municipality or other lawful authority taxes in effect or hereafter enacted. When required, the Company will collect such tax with respect to manufacturing, processing, sales, delivery and/or use of the products sold by the Company whether leveled against the Company or its suppliers, or its supplying manufacturers, or against the Buyer.
19. COLOR REPRESENTATIONS: Company does not warrant or guarantee that color brochures, charts, illustrations, samples and reproductions in Company’s advertising and promotional literature will match the color or shades of product represented, because of differences in the media, lots, etc. All physical samples are submitted as representative of color, texture or shade. The Company accepts no responsibility, nor shall the Company be liable for failure to match color collateral. At the Buyer’s request, the Company will provide a color sample to Buyer of Company’s attempt to match Buyer’s color or shade. Buyer will then have a representative sample of how the color, texture or shade will
appear, however, the Buyer must be aware that some deviation from lot to lot may occur. The acceptance of a sample acknowledges this Term.
20. CURED SAMPLES: Samples are for preliminary color selection only. The installation contractor should produce all final submittal samples. Each Company product system is a unique expression of the installation contractor and the substrate the material is applied upon, therefore, the Company cannot be responsible for finished texture, pattern, color or final appearance.
21. COVERAGE RATES: Coverage rates, if mentioned are only estimates. The Company’s marketing and sales pieces of collateral are provided by the Company to assist in the estimation of need, however, the actual jobsite condition will vary and therefore the material demand may vary, therefore the Company’s estimations are not binding numbers.
22. QUALITY OF APPLICATION AGREEMENT: Buyer agrees that the application of the products shall be a quality application in accordance with accepted industry practices and standards, and the installation is in accordance with the appropriate Company Installation Guidelines. Company is not responsible for any defects caused by improper installation of the product. Further, the Buyer shall employ an Applicator who has completed work similar to that of the specification (job requirements) and is knowledgeable in all aspects of the installation, including but not limited to storage of material, surface preparation, mixing, application techniques and practices, environmental limitation and applicable government agencies.
23. GOVERNING LAW AND FORUM: These Terms and each sale will be construed and interpreted, and the rights of the parties determined, in accordance with the laws of the State of California without regard to any conflict of laws provisions that might otherwise apply. The parties agree to exercise any right or remedy in connection with these Terms or Company’s orders exclusively in, and you agree to submit to the jurisdiction of, the appropriate state or federal court of Orange County, State of California.
24. ENTIRE AGREEMENT: These Terms contain our entire agreement relating to each Transaction. These Terms may not be waived, changed, modified, extended or discharged except by an agreement in writing that is signed by an authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.
25. ATTORNEY'S FEES: In any arbitration, suit, action or other proceeding arising out of the sale of the Product, the prevailing party, whether by order, award or judgment, shall, in addition to any other damages and relief, be entitled to its reasonable attorney, paralegal, expert, consultant and witness fees and costs incurred to so prevail.