Terms of Sale
SURFACE TECH LLC
GENERAL TERMS AND CONDITONS OF SALE
Last Updated: August 31, 2022
- Applicability.
- These terms and conditions of sale (these “Terms“) apply to, and are incorporated into by this reference, any contract or agreement in which Surface-Tech, LLC, an Oregon limited liability company (“ST”) is a party. Except as set forth in Section 1(b) below, if a written contract signed by all parties, including ST, is in existence covering the sale of the materials/services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. For the purposes of this statement of Terms, “Buyer” means the person or entity purchasing materials or services from ST.
- These Terms, along with any other writing executed by all parties, except Buyer’s Terms, as noted below, (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms (“Buyer’s Terms”). Fulfillment of Buyer’s order does not constitute acceptance of any Buyer’s Terms and does not serve to modify or amend these Terms.
- Buyer’s submission of an order is Buyer’s express agreement that these Terms are expressly incorporated into such order.
- These terms and conditions of sale (these “Terms“) apply to, and are incorporated into by this reference, any contract or agreement in which Surface-Tech, LLC, an Oregon limited liability company (“ST”) is a party. Except as set forth in Section 1(b) below, if a written contract signed by all parties, including ST, is in existence covering the sale of the materials/services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. For the purposes of this statement of Terms, “Buyer” means the person or entity purchasing materials or services from ST.
- Delivery.
- The materials or services will be delivered or provided within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished materials. ST shall not be liable for any delays, loss, or damage in transit.
- Products will be shipped Incoterms Ex Works (“EXW”) from any ST facility. Upon tender to the carrier, goods will be deemed delivered and risk of loss and title to Products passes to Buyer. In the absence of instructions, ST will, at Buyerr expense, arrange carriage (including insurance against normal in-transit risks up to the applicable purchase price). ST assumes no responsibility for carrier charges, shipping, handling, freight, or insurance. Buyer may not return Product to ST without prior written authorization of ST and a valid Return Materials Authorization (“RMA”) number. Any authorized Product return must contain the RMA number and ST-provided RMA form. The materials or services will be delivered or provided as mutually determined by the parties (the “Delivery Point“) in the writing containing the confirmation of the transaction (“Sales Confirmation”).
- ST may, in its sole discretion, without liability or penalty, make partial shipments of materials/services to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the material shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- If for any reason Buyer fails to accept delivery of any of the materials/services on the date fixed pursuant to ST’s notice that the materials/services have been delivered at the Delivery Point, or if ST is unable to deliver the materials/services at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the materials/services shall pass to Buyer; (ii) the materials/services shall be deemed to have been delivered; and (iii) ST, at its option, may store the materials/services until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- The materials or services will be delivered or provided within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished materials. ST shall not be liable for any delays, loss, or damage in transit.
- Non-Delivery.
- The quantity of any installment of materials/services as recorded by ST on dispatch from ST’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- The ST shall not be liable for any non-delivery of materials/services (even if caused by ST’s negligence) unless Buyer gives written notice to ST of the non-delivery within three (3) business days of the date when the materials/services would in the ordinary course of events have been received.
- Any liability of ST for non-delivery of the materials/services shall be limited to replacing the materials/services within a reasonable time or adjusting the invoice respecting such materials/services to reflect the actual quantity delivered.
- The quantity of any installment of materials/services as recorded by ST on dispatch from ST’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- Shipping Terms.
Delivery shall be made as set forth in the Sales Confirmation. - Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the materials/services at the Delivery Point. As collateral security for the payment of the purchase price of the materials/services, Buyer hereby grants to ST a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the materials/services, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Oregon Uniform Commercial Code. - 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. - Inspection and Rejection of Nonconforming materials/services.
- Buyer shall inspect the materials/services upon receipt. Buyer will be deemed to have accepted the materials/services unless it notifies ST in writing of any Nonconforming materials/services within three (3) business days of receipt (“Inspection Period“) and furnishes such written evidence or other documentation as [reasonably] required by ST. “Nonconforming materials/services” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- If Buyer timely notifies ST of any Nonconforming materials/services, ST shall, in its sole discretion, (i) replace such Nonconforming materials/services with conforming materials/services, or (ii) credit or refund the Price for such Nonconforming materials/services, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, if applicable, at its expense and risk of loss, the Nonconforming materials to a location determined by ST. If ST exercises its option to replace Nonconforming materials, ST shall, after receiving Buyer’s shipment of Nonconforming materials, ship to Buyer, at Buyer’s expense and risk of loss, the replaced materials to the Delivery Point.
- Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming materials/services. Except as provided under Section 7(b), all sales of materials to Buyer are made on a one-way basis and Buyer has no right to return materials purchased under this Agreement to ST.
- Buyer shall inspect the materials/services upon receipt. Buyer will be deemed to have accepted the materials/services unless it notifies ST in writing of any Nonconforming materials/services within three (3) business days of receipt (“Inspection Period“) and furnishes such written evidence or other documentation as [reasonably] required by ST. “Nonconforming materials/services” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- Price.
- Buyer shall purchase the materials/services from ST at the price[s] (the “Price[s]“) set forth in the Sales Confirmation. Unless otherwise stated in a price quote (“Quote”) issued by ST, all quoted prices are: (i) valid for 30 days, but subject to adjustment in the event of increases to costs incurred by ST for performance, sourcing, production, compliance, transport, or otherwise; (ii) apply only to the project(s) specified in the Quote; and (iii) exclusive of taxes and fees (described below) and related services. Quantity estimates set forth in a Quote, or otherwise provided, are estimates only, and Buyer bears sole responsibility for determining the appropriate quantity of material for the applicable project. Buyer may place an order for material by issuing a binding written purchase order by facsimile or email as instructed by ST (an “Order”). In response to an Order, ST may issue an acknowledgement (“Acknowledgement”) to some or all of Buyer’s Order, upon which, the Acknowledgement and these Terms shall form the entire agreement between ST and Buyer regarding its subject matter, unless Buyer notifies ST in writing within one (1) business day of delivery of an Acknowledgment. Any proposed shipped by/delivery date are estimates only and not a guarantee. Buyer may not alter, cancel, reschedule, or delay delivery without the express written consent of ST.
- With respect to any Services provided on or with respect to materials (e.g. design, formulation, engineering, development, or customization): (i) whether or not included in any Quote, ST will assess and Buyer agrees to pay, ST’s prevailing rates and fees, together with expenses incurred by ST in connection with such Services, including costs of permits, licenses, authorizations, and approvals required by law; and (ii) Buyer agrees to promptly respond to any request or approvals necessary to perform Services.. ST warrants that Services will be provided by ST in a professional and workmanlike manner, and in the event of any breach of such warranty ST shall reperform the applicable Services, as Buyer’s sole and exclusive remedy.
- 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, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, ST’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Buyer shall purchase the materials/services from ST at the price[s] (the “Price[s]“) set forth in the Sales Confirmation. Unless otherwise stated in a price quote (“Quote”) issued by ST, all quoted prices are: (i) valid for 30 days, but subject to adjustment in the event of increases to costs incurred by ST for performance, sourcing, production, compliance, transport, or otherwise; (ii) apply only to the project(s) specified in the Quote; and (iii) exclusive of taxes and fees (described below) and related services. Quantity estimates set forth in a Quote, or otherwise provided, are estimates only, and Buyer bears sole responsibility for determining the appropriate quantity of material for the applicable project. Buyer may place an order for material by issuing a binding written purchase order by facsimile or email as instructed by ST (an “Order”). In response to an Order, ST may issue an acknowledgement (“Acknowledgement”) to some or all of Buyer’s Order, upon which, the Acknowledgement and these Terms shall form the entire agreement between ST and Buyer regarding its subject matter, unless Buyer notifies ST in writing within one (1) business day of delivery of an Acknowledgment. Any proposed shipped by/delivery date are estimates only and not a guarantee. Buyer may not alter, cancel, reschedule, or delay delivery without the express written consent of ST.
- Payment Terms.
Unless otherwise stated, payment terms for qualified purchasers meeting ST credit requirements are NET 30 of invoice, without set-off, excepting credits issued by ST. ST reserves the right to alter or amend payment terms upon notice in its business judgment or where economic circumstances dictate, including where Buyer owes past due amounts, up to and including requiring prepayment in full. Payment shall be in US dollars and in immediately available funds. ST reserves the right to assess interest on overdue payments at a rate of one-and-one-half percent (1½%) per month (or the maximum rate allowed by applicable law, whichever is less). In addition to all other remedies, ST shall be entitled to suspend delivery of any materials or performance of any services if Buyer fails to pay any amounts when due. Buyer shall reimburse ST for all costs incurred in collecting any payments, including, reasonable attorneys’ fees. - Limited Warranty.
- ST warrants to Buyer that for a period of ninety (90) days from the date of shipment or provision of the materials/services (“Warranty Period“), that such materials/services will be free from material defects in material and workmanship.
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(A), ST MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MATERIALS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE;OR (d) 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.
- Materials manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the materials/services. Third Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, ST MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.]
- ST shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the alleged defect, reasonably described, to ST within three (3) business days of the time when Buyer discovers or ought to have discovered the alleged defect; (ii) ST is given a reasonable opportunity after receiving the notice to examine such alleged defect and Buyer (if requested to do so by ST) returns such materials to ST’s place of business at ST’s cost for the examination to take place there; and (iii) ST reasonably verifies Buyer’s claim that the materials/services are defective.
- ST shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such materials/services after giving such notice; (ii) the defect arises because Buyer failed to follow ST’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the materials/services; (iii) Buyer alters or repairs such materials/services without the prior written consent of ST; (iv) the damage is caused by use with any third-party product, good, or service. (v) the defects or damage was caused by or in transportation, storage, misuse, accident, neglect, abuse, alteration, modification, or combination; and (vi) any other issue not expressly covered.
- This Limited Warranty extends only to original end-user purchaser and is not assignable or transferable to any subsequent purchaser or user.
- Subject to Section 10(d) and Section 10(e) above, with respect to any such materials/services during the Warranty Period, ST sole responsibility shall be, in its sole discretion, to either: (i) repair or replace such materials/services (or the defective part) or (ii) credit or refund the price of such materials/services at the pro rata contract rate provided that, if ST so requests, Buyer shall, at ST’s expense, return such materials/services to ST.
- THE REMEDIES SET FORTH IN SECTION 10(G) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND ST’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(A).
- ST warrants to Buyer that for a period of ninety (90) days from the date of shipment or provision of the materials/services (“Warranty Period“), that such materials/services will be free from material defects in material and workmanship.
- Limitation of Liability.
- IN NO EVENT SHALL ST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 ST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL ST’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 THE TOTAL OF THE AMOUNTS PAID TO ST FOR THE GOODS SOLD HEREUNDER.
- The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from ST’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from ST’s acts or omissions.
- IN NO EVENT SHALL ST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 ST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the materials/services under this Agreement or any resale of the materials/services by Buyer. Buyer assumes all responsibility for shipments of materials/services requiring any government import clearance. ST may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on materials/services. - Termination.
In addition to any remedies that may be provided under these Terms, ST may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. - Waiver.
No waiver by ST of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ST. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. - Confidential Information.
All non-public, confidential or proprietary information of ST, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by ST 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, and will remain, the sole property of ST, and is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by ST in writing. Upon ST’s request, Buyer shall promptly return all documents and other materials received from ST. ST 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. - Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to ST hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) [reasonable] control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable] control of the Impacted Party. The Impacted Party shall give notice within three (3) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 18, either party may thereafter terminate this Agreement upon thirty (30) days’ written notice. - Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ST. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. - Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. - 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. - Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Oregon. - Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and County of Multnomah, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. - Notices.
All notices, request, 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 (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. - 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. - Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
