EPOXY FORMULATIONS, INC. D/B/A EFI POLYMERS
TERMS AND CONDITIONS OF SALE
1. TERMS OF ACCEPTANCE: THIS QUOTATION OR SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THESE TERMS AND THE ATTACHED TERMS AND CONDITIONS. A COPY OF THESE TERMS AND CONDITIONS IS AVAILABLE AT www.efipolymers.com\Terms. SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS THAT ARE PRINTED ON OR CONTAINED IN A PURCHASE ORDER OR OTHER FORM PREPARED BY BUYER WHICH ARE ADDITIONAL TO, IN CONFLICT WITH, OR INCONSISTENT WITH THE TERMS CONTAINED HEREIN ARE REJECTED BY SELLER AND SHALL HAVE NO FORCE OR EFFECT.
2. PRICES: Buyer shall purchase the goods at the prices quoted by Seller. Prices are subject to change without prior notice and Seller shall thereafter notify Buyer of any price changes. In the event of a price increase, Buyer may cancel any undelivered portion of any order by written notice to Seller, provided such notice is received by Seller not more than fifteen (15) days after Buyer’s receipt of Seller’s notice of price increase. Upon cancellation, Buyer shall pay Seller: (1) the price for all goods which have been completed or are in the process of completion, and (2) components or goods secured by Seller from outside sources for the performance of the order.
3. PAYMENT AND CREDIT TERMS. All invoice terms are net thirty (30) days or prepayment unless specifically stated differently in the Commercial Invoice. Any payment which is past due shall be subject to the Costs of Collection as set forth herein. Payment terms shall be as established by Seller from time to time. If Buyer fails to pay for any one or more shipments when due, then Seller shall have the right, in addition to other remedies,
either (a) to suspend or cancel deliveries, or (b) to require cash payment on deliveries. Should Buyer's financial responsibility become unsatisfactory to Seller, cash payment or satisfactory security may be required by Seller before proceeding with deliveries.
4. SECURITY INTEREST: Seller retains a purchase money security interest under the Uniform Commercial Code as enacted in the State of Colorado for goods sold to Buyer until payment in full has been made. In the event of a payment default by Buyer, Seller shall have all the rights and remedies of a secured creditor under Colorado’s U.C.C. provisions. Buyer agrees to execute financing statements and other documents as Seller may request in order to perfect Seller’s security interest.
5. WARRANTY DISCLAIMER: Seller warrants that the goods will conform to its standard specifications unless otherwise indicated. NO DESCRIPTIONS OTHER THAN THOSE REFERENCED HEREIN SHALL BE DEEMED A WARRANTY OR OTHERWISE HAVE ANY LEGAL EFFECT. IF SAMPLES WERE EXHIBITED TO BUYER, THEY WERE FOR GENERAL INFORMATION PURPOSES ONLY AND SHALL NOT BE DEEMED A WARRANTY BY SAMPLE OR MODEL OR OTHERWISE HAVE ANY LEGAL EFFECT. THE WARRANTIES SET OUT HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. SELLER SHALL HAVE NO TORT LIABILITY TO BUYER WITH RESPECT TO ANY OF THE GOODS AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH. Seller will, at its option, replace any goods which fail to meet the warranties set forth herein, provided Seller is promptly notified of any defect and such goods are returned freight prepaid and insured by Buyer to Seller’s facility within thirty (30) days after delivery. Replaced goods will be returned to Buyer, freight prepaid and insured by Seller. Goods not qualifying for replacement under this Warranty will be returned at Buyer’s risk and expense. Seller may charge its standard rates for handling of such goods. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
6. FORCE MAJUERE: Seller shall not be liable to Buyer for any delay or failure in performance caused by acts beyond Seller’s control, including but not limited to: acts of God, war, vandalism, sabotage, accidents, fires, floods, strikes, labor disputes, mechanical breakdown, shortages or delays in obtaining suitable parts or equipment, material, labor, or transportation, acts of any unit of government or a governmental agency, or any similar cause.
7. LIMITATION OF LIABILITY: THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THE COMMERCIAL INVOICE, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, OR OTHERWISE WITH RESPECT TO THE GOODS, OR ANY SERVICES IN CONNECTION WITH THE GOODS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR GOODS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES AND PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYER’S EXCLUSIVE REMEDY.
8. BUYER’S OBLIGATION IF ORDER CANCELLED: If Buyer cancels an order before accepting and paying for all goods manufactured or sold by Seller, Buyer shall be responsible for paying Seller for costs Seller incurred within 14 days prior to Buyer’s cancellation, including: (1) any materials or products in inventory, (2) any unused packaging materials, (3) any unused products and materials used to make the items identified in the Commercial Invoice, including but not limited to compounds and special chemicals, and (4) Seller’s costs and expenses related to fulfilling Buyer’s order. This provision is intended to supplement, and not replace, any and all other remedies Seller may have under Colorado’s U.C.C.
9. TITLE AND RISK OF LOSS. Title to and risk of loss in the goods shall pass to Buyer upon Seller’s delivery to the carrier at the shipping point, notwithstanding the terms of shipment specified in the Commercial Invoice.
10. POINT-OF-SHIPMENT WEIGHTS AND MEASUREMENTS: Buyer accepts Seller’s point-of-shipment weights and measurements, unless proven incorrect. On sales made F.O.B. delivered basis, no allowances for shortage or damage will be made by Seller unless Buyer furnishes acknowledgment from the carrier that same occurred in transit. On all sales made F.O.B. Seller’s plant or warehouse, Buyer will, in the event of loss or damage in transit, file its own claim with the carrier.
11. COUNTRY OF ORIGIN: The goods sold pursuant to the Commercial Invoice are exported from the United States of America in accordance with the Export Administration Regulations (ECCN-EAR 99). Diversion contrary to U.S. law is strictly prohibited.
12. TAXES AND FEES: Buyer shall pay all taxes, fees or charges with respect to the sale or transportation of the goods sold pursuant to the Commercial Invoice.
13. COSTS OF COLLECTION: In any dispute involving monies owed to Seller, Seller shall be entitled to all costs of collection, including reasonable attorney's fees and interest at the rate of 18% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Seller.
14. COMPLETE COMMERCIAL INVOICE: THE COMMERCIAL INVOICE CONTAINS THE FULL UNDERSTANDING OF THE PARTIES AND SUPERSEDES ALL OTHER WRITTEN OR ORAL STATEMENTS, REGARDING ITS SUBJECT MATTER. NO ADDITIONAL TERMS, CONDITIONS, CONSENT, WAIVER, ALTERATION, OR MODIFICATION SHALL BE BINDING UNLESS IN WRITING AND SIGNED BY BOTH PARTIES.
15. INDEMNIFICATION: Buyer shall be liable for all claims, losses, costs, expenses, and other damages resulting from or arising out of the acts or omissions of Buyer and relating to the goods or materials. Buyer expressly agrees to indemnify and hold Seller harmless from any and all loss, costs, liability, expense, and attorneys’ fees arising from the acts or omissions of Buyer. Further, Buyer shall indemnify and hold Seller harmless from and against any and all such claims, losses, costs, expenses, and other damages resulting from or arising out of any failure of Buyer or Buyer’s employees, agents, and subcontractors (other than Seller) to comply with any applicable governmental regulations and/or statutes.
16. REMEDIES: The rights and remedies herein reserved to Seller are cumulative and in addition to any other or further rights and remedies available at law or in equity. No waiver of any breach by Buyer of any provision of these terms will constitute a waiver of any other breach of such provision.
17. SEVERABILITY: If any provisions of these Terms and Conditions of Sale shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any other provisions herein, which together shall be construed as if such illegal and unenforceable provision or provisions had not been included herein.
18. GOVERNING LAW: The contract formed by (a) Buyer’s acceptance of Seller’s quotation, or (b) Seller’s acceptance of Buyer’s order, shall be governed by and construed in accordance with the laws of the State of Colorado. Any and all actions, claims or lawsuits relating to the Commercial Invoice shall be subject to the exclusive jurisdiction of the courts located in the City and County of Denver, Colorado.
Revision Date 08/29/2022