HTS Coatings LLC Terms and Conditions of Contract
These Terms and Conditions of Contract remain in effect and supersede all other terms and conditions of contract expressed or implied by HTS Coatings LLC (hereinafter “Seller”) and shall be explicitly contained in any resulting Purchase Order, if issued, by Buyer. The complete Controlling Contract Documents (hereinafter “Controlling Contract Documents” or “Agreement”) are comprised of these Terms and Conditions of Contract and the Seller’s Quotation. In the case of a conflict or inconsistency in the Agreement, the Seller will determine how the conflict or inconsistency will be resolved. The failure by the Buyer to include these Terms and Conditions of Contract in any resulting Purchase Order will not change the fact that these Terms and Conditions of Contract as well as the Seller’s Quotation are the Controlling Contract Documents associated with the materials or equipment (hereinafter “Work”) provided by Seller.
The prices and delivery quoted in Seller’s Quotation and these Terms and Conditions are firm for sixty (60) days from the date of Quotation and are not acceptable in part without revision by Seller. All prices and delivery are quoted EXW Seller’s facility.
- Terms of Payment
Payment shall be made for all work performed, within thirty (30) days after shipment of Work from Seller’s facility. Provided Buyer is paying Seller in compliance with this Agreement, Seller will not file any liens, claims, or other encumbrances. Audit shall extend only to records of costs not covered by a fixed element of pricing.
- Change Orders/Back Charges/Claims
The contract price and schedule shall be equitably adjusted for all scope changes and for any event beyond the reasonable control of Seller.
Seller warrants that its performance shall conform with generally accepted practices, and if within (3) months from date the equipment is put into operation, but in no event to exceed (6) months from the date of shipment or completion of the Work described herein, Seller will correct such nonconformity by correcting any workmanship deficiency, replacement of defective material and parts or by making other suitable repairs. Buyer is obligated to provide prompt written notice of alleged nonconformity of Work to Seller. Within a reasonable period of time after Seller receives and inspects the returned Work, Seller will make a final commitment as to whether or not a warranty adjustment is appropriate. If appropriate, Seller will provide all corrective work (within its original scope) necessary to conform the returned Work. If Seller is unable to correct such nonconformity, it will return any payments for that specific Work previously paid by Buyer to Seller.
Seller’s warranty shall not apply to damage of any nature caused by the operating process, elements, improper operation or use or by any cause beyond Seller’s reasonable control.
The foregoing warranty and the remedy contained therein are exclusive and in lieu of all other remedies and warranties whether statutory, express or implied; any warranties of fitness for a particular purpose or of merchantability are excluded by Seller.
- Force Majeure
Neither party shall be liable to the other for failure to perform or for the delay in performance of Work when said failure or delay is due to any cause beyond a party’s reasonable control, including, but not limited to, acts of civil or military authority (including courts and regulatory agencies), acts of God (excluding normal or seasonal weather conditions), war, riot or insurrection, blockades, embargoes, sabotage, epidemics, hurricanes, tornadoes, power outages and unusually severe floods. The party affected shall promptly provide notice to the other party indicating the nature, cause, date of commencement thereof, the anticipated extent of such delay and whether it is anticipated that any completion or delivery dates will be affected thereby, and shall exercise reasonable due diligence to mitigate the effect of the delay. In the event of delay in performance due to any such cause, the schedule for completion of the Work shall be revised as may be mutually agreed and Seller shall adhere to the adjusted schedule.
Seller agrees to perform the Work in a good and workmanlike manner and in accordance with accepted industry practices for such Work prevailing at the time and place where the Work is being rendered.
Seller will have no obligation or liability with respect to Work provided pursuant to Buyer’s designs, drawings or manufacturing specifications.
- Storage Charges
In the event that finished Work cannot be shipped to Buyer or Buyer places a hold on production in progress, for any reason whatsoever, there will be a storage charge applied and invoiced monthly. The storage charge will be based on the anticipated costs associated with handling, storing and retrieving work. All storage invoices will be paid within thirty (30) days of submission.
Buyer shall save, indemnify, defend, and hold Seller entirely harmless for all claims of damage to property and person, including death, caused by the negligent or willful acts of Buyer.
- Consequential Damages
In no event shall Seller be liable for any special, indirect, incidental or consequential damages of any nature, including but not limited to loss of production, whether suffered by Buyer or any third party, irrespective of whether claims or actions for such damages are based upon contract, warranty, tort (including negligence), strict liability or otherwise.
- Work Product
Seller retains full rights and ownership of Seller’s procedures, calculations, application concepts, drawings and related Work Product resulting from Seller’s existing or developing know-how or Work Product developed as a result of Seller’s work processes.
Buyer may assign this Agreement to a parent, subsidiary or affiliate of Buyer without Seller’s prior consent. Seller shall have the right to assign the Agreement without the Buyer’s prior written consent.
The controlling contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assigns.
- Exclusive Remedy
Buyer’s exclusive remedies against Seller shall be those expressly provided in this Agreement; and, the foregoing provisions shall apply regardless of whether liability arises in contract, negligence, strict liability or otherwise.
- Ultimate Limitation of Liability
EXCEPT AS OTHERWISE LIMITED HEREIN, SELLER’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR THE WORK PERFORMED HEREUNEDR SHALL NOT EXCEED THE TOTAL VALUE OF CHARGES INVOICED AND PAID FOR HEREUNDER BY BUYER.
- Governing Terms
Any and all additional and/or conflicting terms and conditions that may appear on Buyer’s written documents including Purchase Orders, delivery instructions, service order tickets, time sheets, invoice instructions or any other document shall be null and void and Seller’s signature on any Seller written document shall not constitute Seller’s consent to any terms or conditions set forth in such document. The Seller’s Quotation and these Terms and Conditions of Contract shall be the Controlling Contract Documents that govern the scope of work, pricing, as well as the general and special conditions of contract for all work performed.
Where a provision of the Terms and Conditions of Contract addresses an issue that is not covered elsewhere in the Controlling Contract Documents or where a provision of the Terms and Conditions of Contract is inconsistent with a provision contained elsewhere in the Controlling Contract Documents, the provision of the Terms and Conditions of Contract shall prevail.
- Applicable Law
The Agreement will, in all respects, be performed, governed by and construed in accordance with the laws of the State of Illinois, without giving effect to any choice of law rules thereof, which may direct the application of the laws of another jurisdiction.
If, with respect to any invoice properly prepared and delivered, Buyer neither makes timely payment thereon nor provides notice of a dispute relating thereto, Seller may at its option and without exclusive election (a) immediately, upon written notice to Buyer, suspend performance without liability until such time as said invoice is honored with a corresponding day-for-day schedule adjustment, or (b) terminate this Agreement by written notice to Buyer, provided that no such termination notice shall be effective unless at least thirty (30) days prior to such notice Seller shall have first notified Buyer in writing of Seller's intention to so terminate this Agreement at the end of such thirty (30) days if payment is not made. Any such termination under this Article shall be treated as if it were a termination for convenience by Buyer.