Terms & Conditions

Endura Coatings
TERMS AND CONDITIONS OF SALE

1.Applicability.

(a) These Terms and Conditions of Sale (these “Terms and Conditions”), together with the terms of any other document provided by Endura (as defined below) in which these Terms and Conditions are attached or are incorporated (collectively, this “Agreement”) apply to: (i) any quotation, proposal, or offer to sell (“Offer”) made by Stechschulte/Wegerly AG LLC (d/b/a Endura Coatings) or one of its affiliates or subsidiaries (collectively, “Endura”) for the sale of goods manufactured or sold by Endura and/or services provided by Endura (collectively, the “Goods”) and (ii) any purchase order, release, schedule, or similar purchasing document (collectively, an “Order”) issued by the buyer-party purchasing the Goods or that party’s subsidiaries and affiliates (collectively, “Purchaser”).

(b) This Agreement exclusively governs the sale of Goods by Endura. Any additional or different terms stated in any document provided by Purchaser to Endura at any time, whether in Purchaser’s Order or otherwise (including, without limitation, Purchaser’s general terms and conditions of purchase), or any attempt by Purchaser to vary the terms of this Agreement in any way, are expressly rejected by Endura, are not part of this Agreement and do not apply to the sale of Goods, and are not binding on Endura without the express prior written acceptance of such terms by Endura’s authorized representative. Fulfillment of Purchaser’s Order does not constitute acceptance of any of Purchaser’s terms and conditions and does not serve to modify or amend these Terms and Conditions.

(c) Purchaser may from time to time order Goods by placing or issuing Orders to Endura. All Orders are subject to acceptance by Endura and may be rejected by Endura. If Endura rejects an Order, Endura will notify Purchaser. If Endura accepts an Order, Endura’s acceptance will be limited to the terms contained in this Agreement.

(d) None of the terms, provisions or conditions of this Agreement may be modified, altered or added to except by written instrument signed by a duly authorized representative of Endura. Any agreed upon change will be subject to an equitable adjustment in the price of the Goods, time for performance, or both. Subject to the Section 2 below, the price and terms contained in any Order are valid for no more than thirty (30) days.

2. Price and Payment.

(a) Price.

Prices for the Goods will be as agreed by Endura in a signed writing or, if not agreed, the price specified in the Offer. Prices are based on costs, conditions, and assumptions existing on the date of Endura’s Offer and are subject to change at any time prior to acceptance of an Order in the event of a change in Endura’s costs (including raw material) or other circumstances beyond Endura’s reasonable control. Notwithstanding the foregoing, Endura’s prices do not include transportation, freight, handling, special handling, delivery and insurance costs or any federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties, and any similar fiscal contribution related to the Goods, in each case, related to the sale, use, shipment, transportation, or delivery of the Goods, all of which are the sole responsibility of Purchaser and payable by Purchaser in addition to Endura’s price. Purchaser shall have no right to access Endura’s cost or pricing data or other books and records.

(b) Payment.

Purchaser will pay for Goods without setoff, recoupment, or deduction of any kind, in U.S. funds. Unless otherwise agreed to in writing by Endura, payment for the Goods will be due and payable thirty (30) days from the date of invoice. Purchaser will not be entitled to any discount for early payment. If payment is not made as provided in this Agreement, or if Purchaser’s financial condition becomes impaired or unsatisfactory to Endura (as determined in Endura’s sole discretion), Endura may, at its option and without notice: (i) suspend performance of its obligations under this Agreement, including, without limitation, delay or suspend shipments to Purchaser until such breach has been cured or Purchaser’s financial condition is improved to Endura’s satisfaction; (ii) require payment in advance as to future deliveries or require security to ensure payment; (iii) demand return from Purchaser of any Goods for which payment has not been made; or (iv) terminate this Agreement. If Endura’s performance or shipment is delayed or suspended by Purchaser, payment shall become due on the date when the Endura is prepared to make shipment and such payments shall be made based on the purchase price and the percentage of completion. Purchaser hereby grants to Endura a security interest on any real property into which the Goods will be installed or incorporated to secure payment of the Purchaser Price for the Goods and agrees to cooperate with Endura and execute such instruments and documents as may be necessary in order to create and perfect any such lien. Endura is authorized, on behalf of Purchaser to file financing statements and other documents and instruments as may be necessary or convenient to perfect or further evidence such security interests. All amounts due to Endura but not paid by Purchaser on the due date will bear interest on the unpaid balance of amounts due at a rate that is equal to 1.5% per month until paid. Purchaser agrees to pay, indemnify and hold harmless Endura from, any and all legal fees and costs that may be required to collect any overdue balances (whether or not litigation is commenced). If deliveries of Goods are to be made in installments, the purchase price of each installment shall, at Endura’s option, be recoverable as a separate sale.

3. Delivery; Risk of Loss; Transportation Charges.

Delivery dates are estimates only. Unless otherwise agreed in writing by Endura, Endura will deliver the Goods FCA (Incoterms 2020) Endura’s facility using Endura’s standard methods for packaging and shipping such Goods. Title and risk of loss to the Goods will pass to Purchaser when the Goods are placed in the possession of Purchaser’s carrier. Endura may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Purchaser. Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s Order.

4. Excusable Delays.

Endura shall not be held liable, or deemed in default, for any failure or delay in fulfilling or performing any of its obligations under an accepted Order or this Agreement if such failure or delay is caused by, or results from, acts beyond Endura’s reasonable control including, without limitation, fire, flood, drought, acts of nature, war, hostilities, terrorist threats or acts, riot or other civil unrest, strikes, lockouts, slowdowns or other labor unrest, delay in transportation, shortage of power, utility interruptions, unavailability of raw materials, embargo, government action, earthquake, explosion, national or regional emergency, or by acts or omissions of Purchaser, including Purchaser’s failure to promptly comply with the terms of payment (collectively, the “Excusable Delays”). At Endura’s option, either (a) the date of delivery shall be extended for a period equal to the time lost by reason of any Excusable Delay, or (b) the obligation to deliver the Goods will be terminated.

5. Acceptance and Return of Goods.

Purchaser will inspect the Goods immediately upon receipt and promptly notify Endura of any defects or nonconformities. Unless Purchaser provides Endura with written notice stating with specificity any defects or nonconformities within ten (10) days after receipt of the Goods, such Goods will be deemed accepted by Purchaser and any claims for defects related to the Goods will be waived. Upon acceptance of Goods, Purchaser waives any right to revoke such acceptance for any reason, whether known or unknown to Purchaser at the time of acceptance. Purchaser will be limited to any available remedies specifically provided in this Agreement under Section 9 for any defect or nonconformance in the Goods after such acceptance. Endura has a reasonable period of time to cure any nonconformity. Goods may not be returned without Endura’s prior written return authorization and, once authorized, Purchaser may return the Goods Delivery Duty Paid (Incoterms 2020) to the destination determined by Endura and in accordance with instructions issued by Endura. Failure to follow Endura’s return procedures may result in lost Goods, delays, additional service, restocking charges, warranty denial, or refusal of a shipment. Endura has the right to reject Goods returned without Endura’s approval.

6. Cancellation and Changes.

Purchaser may not cancel Orders, change the timing of scheduled shipments, or direct temporary suspension of scheduled shipments without Endura’s prior written consent, which will not be unreasonably withheld. If Purchaser cancels an Order, Purchaser will pay Endura, within seven (7) days of such cancellation, a cancellation charge in an amount equal to twenty percent (20%) of the price of the cancelled Order plus all amounts for any finished Goods, work-in-progress, materials (including, without limitation, purchases for raw materials) and expenditures made or committed for the Order. Any rescheduling of an Order or temporary suspension of an Order that last longer than thirty (30) days will be deemed a cancellation of an Order. All changes to Orders must be submitted by Purchaser to Endura in writing and will not be effective unless and until Endura consents in writing to the change(s). Endura will advise Purchaser in writing of the price and/or delivery schedule impact, if any, of the change request. Endura will not be required to accept any changes without Purchaser’s written acknowledgement of any price and/or delivery schedule adjustments, if any.

7. Specifications.

Purchaser is responsible for the accuracy of any specifications and instructions provided to Endura. Except as expressly specified by Purchaser and agreed to in writing by Endura, all Goods shall be produced in accordance with Endura’s normal and customary manufacturing practices. All Goods, including those produced to meet Purchaser’s specifications, shall be subject to normal and customary tolerances and variations consistent with usage of the trade concerning dimensions, draft angles, weight, packaging, composition and properties. Normal variations in surface finish, internal conditions, overall quality, or deviations from tolerances shall be consistent practical testing and inspection methods.

8. Purchaser’s Material.

The quality of any Purchaser-supplied components or materials (“Purchaser’s Material”) to be used in the production of the Goods is the responsibility of Purchaser. Endura assumes no responsibility for defective plating or other finishing on Purchaser’s Material, to the extent previously plated or finished by a third party. Any such defective Purchaser’s Material will be returned to Purchaser for refinishing, or at Endura’s option and Purchaser’s sole cost and expense, stripped and refinished by Endura. Endura reserves the right, at Endura’s option, to either reject, or add additional fees to, the applicable Order for any Purchaser’s Material below Endura’s required standard. During the storage of Purchaser’s Material, Purchaser’s containers used for delivery to Endura shall be used and any damage resulting from such containers shall be at Purchaser’s risk.

9. Intellectual Property.

Except to the extent provided in a separate written agreement between Endura and Purchaser, this Agreement will not be deemed to transfer, assign, or license any right, title, or interest in and to, any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how, formula, design, engineering drawing, device, compilations of information, manufacturing methods or processes, tooling or other intellectual property owned by Endura or its third party licensors.

10. Warranty.

(a) Endura Warranty.

Subject to the limitations set forth in this Agreement, Endura warrants to Purchaser (and not to any third party) that the Goods will conform the specifications agreed upon by the parties and will be free of significant defects in material and workmanship (the “Endura Warranty”) for a period of one hundred eighty (180) days from date the Goods are shipped by Endura. THE ENDURA WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS, STATUTORY OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY ENDURA, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF ENDURA FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, REPAIR, OR PERFORMANCE OF THE GOODS. No third party, including any employee or agent of Endura, is authorized to make any representation, promise, or warranty concerning the Goods and any statements made by those parties are not binding on Endura unless in writing signed by an authorized representative of Endura. Any technical advice furnished by Endura or its employees or agents is for Purchaser’s convenience only and Endura assumes no obligation or liability for the advice given or the results obtained from that advice.

(b) Limitations.

The Endura Warranty will not apply if the alleged defect was caused or contributed to by (i) failure of, or any defect in, any goods into which the Goods were installed not attributable solely and exclusively to such Good; (ii) failure of, or any defect in, Purchaser’s Materials, (iii) any system processing, design or installation, (iv) failure to follow any directions, manuals, instructions and precautions provided by Endura or its supplier, if any; (v) transportation, storage or handling of the Goods; (vi) misuse, mishandling, misapplication (including improper maintenance), accident, neglect, improper installation (including use of unauthorized parts or attachments), wear and tear, abnormal use (including any application not originally specified by Endura for the Goods); or (vii) adjustments or repairs performed by anyone other than Endura or one of Endura’s expressly authorized agents.

(c) Warranty Claims.

Notwithstanding any other provision of this Agreement, the Endura Warranty is valid only if: (i) Purchaser notifies Endura, in writing, of an alleged claim or defect within thirty (30) days from the date Purchaser discovered, or upon reasonable inspection should have discovered, such alleged claim or defect; (ii) the allegedly defective Goods are returned to Endura for inspection and testing by Endura before expiration of the applicable warranty period described above; and (iii) Endura’s inspection and testing reveals, to Endura’s reasonable satisfaction, that the Endura Warranty applies to the alleged defect. If Endura determines that any Goods returned to Endura pursuant to the Endura Warranty are not covered by the Endura Warranty, Purchaser will, within five (5) days after receipt of Endura’s claim, reimburse Endura for Endura’s costs and expenses incurred in inspecting such Good.

11. Exclusive Remedy.

PURCHASER’S EXCLUSIVE REMEDY AGAINST ENDURA, AND ENDURA’S SOLE OBLIGATION FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO ENDURA’S REPLACING OR REPAIRING THE APPLICABLE GOODS OR, AT ENDURA’S OPTION, REFUNDING THE PURCHASE PRICE PAID BY PURCHASER TO ENDURA FOR THE APPLICABLE GOODS. IN NO EVENT SHALL ENDURA HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE APPLICABLE GOODS. REPLACING THE APPLICABLE GOODS REQUIRES ONLY THE DELIVERY OF REPLACEMENT GOODS, NOT THE REMOVAL OF DEFECTIVE GOODS OR INSTALLATION OF REPLACEMENT GOODS. WHERE THE SERVICES RENDERED BY ENDURA WERE APPLYING A COATING TO PERSONAL PROPERTY, REPACING THE APPLICABLE GOODS, REQUIRES ONLY THE REAPPLICATION OF THE COATING AND NOT REPLACEMENT OF THE PERSONAL PROPERTY TO WHICH THE COATING WAS APPLIED.

12. Limitation of Liability.

IN NO EVENT SHALL ENDURA BE LIABLE, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT OR INDIRECT LOST PROFITS OR REVENUE REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR ENDURA WAS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

13. Termination for Cause.

Endura may terminate all or any portion of this Agreement or any Order for cause by providing written notice to Purchaser specifying the applicable date of termination, upon the occurrence of any one or more of the following events (or a comparable event): (a) Purchaser materially breaches this Agreement, and such breach is incapable of cure without risk of future losses or damages to Endura, or with respect to a material breach capable of such cure, Purchaser does not cure such breach within ten (10) days after receipt of written notice of such breach; (b) Purchaser fails to make any payment due to Endura under this Agreement on or before the due date; (c) Purchaser (i) becomes insolvent or is unable to pay its debts as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (d) a direct or indirect change in control of Purchaser occurs (by operation of law or otherwise) without Endura’s prior written consent. Any termination under this Section 12 will be effective on the date of Endura’s written notice of termination or such later date as set forth in the notice. Any termination by Endura pursuant to this Section 12 will not give rise to any liability of Endura nor constitute a waiver of any of Endura’s rights or remedies under this Agreement or otherwise provided by law.

14. Confidentiality.

All non-public, confidential or proprietary information of Endura, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Endura to Purchaser, 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 (collectively, “Confidential Information”) is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Endura in writing. Upon Endura’s request, Purchaser shall promptly return or destroy all Confidential Information received from Endura. Endura shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) already known by Purchaser prior to the date of this Agreement and without breach of the confidentiality restriction that Purchaser was subject; (b) acquired by Purchaser from a third party which was not, to the knowledge of Purchaser, under an obligation to Endura not to disclose such information; (c) which is or becomes publicly available through no breach by Purchaser of confidentiality restrictions to which Purchaser is or was subject; or (d) independently developed by Purchaser without the use of Endura’s Confidential Information.

15. Compliance with Laws.

Purchaser agrees to comply with all applicable federal, state, and local laws, rules, regulations, and orders regarding Purchaser’s performance of this Agreement. The Goods may be subject to export controls and regulations of the U.S., the country of manufacture, or the country of shipment and such export may require a valid export license. Endura’s acceptance of Purchaser’s Order and delivery of the Goods is conditioned on Purchaser’s compliance with applicable export controls. Endura will have no obligation to sell or deliver any Good until all required U.S. and/or other export licenses have been granted and there are no other impediments arising from any applicable export regulations. No Goods sold to Purchaser may be exported or re-exported unless such export or re-export complies fully with all applicable export regulations.

16. Advertising/Use of Trade Names.

Except to the extent Endura has consented in a signed writing, Purchaser will not advertise or publish that Purchaser has purchased Goods from Endura or use any of Endura’s trademarks or trade names in Purchaser’s advertising or promotional materials.

17. General Terms.

(a) Notices.

All notices, claims and other communications to Endura required or permitted under this Agreement will be made in writing and will be effective only upon receipt by Endura. Purchaser’s failure to provide any notice, claim, or other communications to Purchaser in the manner and within the time period specified in this Agreement will constitute a waiver by Purchaser of any and all rights and remedies that otherwise would have been available to Purchaser upon making such notice, claim, or other communication.

(b) Entire Agreement.

This Agreement along with the price and quantity set forth in an accepted Order constitutes the entire agreement between Endura and Purchaser with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written discussions, understandings, representations and agreements.

(c) Severability.

If any clause in this Agreement is determined by a court of competent jurisdiction to be invalid, the invalidity of such clause shall not affect the validity of the remainder of this Agreement.

(d) Remedies.

The rights and remedies of Endura set forth in this Agreement are in addition to, and cumulative with, any other rights and remedies available at law or in equity.

(e) Assignment.

Purchaser may not assign this Agreement or assign or delegate it rights or obligations under this Agreement without Endura’s prior written consent. Any purported assignment in violation of this Section will be null and void and of no force or effect.

(f) Governing Law; Venue.

This Agreement, and all related documents and matters arising out of or relating to this Agreement, are governed by, and will be construed in accordance with, the laws of the State of Michigan, without regard to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from applying to this Order. Endura and Purchaser each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in the United States District Court for the Eastern District of Michigan, the courts in the State of Michigan sitting in Macomb County, and any appellate court with jurisdiction over such courts. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and Purchaser agrees not to bring any action, litigation, or proceeding in any other court.

(g) Relationship of Parties.

Endura and Purchaser are independent contracting parties and nothing in this Agreement will make either party the agent or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.

(h) No Third Party Beneficiary.

Except as otherwise provided, Purchaser acknowledges and agrees that the rights and interests of the parties under this Agreement are intended to solely benefit Endura and Purchaser.

(i) Interpretation.

For purposes of this Agreement (i) whenever the word “including” (or any variation thereof) is used, it is deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; (iii) section headings are for convenience or reference only, and do not affect the meaning of this Agreement; and (iv) any agreement, instrument, statute, law, regulation or rule defined or referred to herein shall be deemed to mean such agreement, instrument, statute, law, regulation or rule as from time to time amended, modified or supplemented, and includes, in the case of agreements and instruments, references to all attachments thereto and instruments incorporated therein. No provision in this Agreement may be construed against Endura as the drafting party.

(j) Survival.

To the extent that any provisions of this Agreement are meant to remain valid after this Agreement has terminated, expired or otherwise ended, such provisions have continued validity even after termination.

(k) CONSULTATION WITH COUNSEL.

PURCHASER AND ENDURA ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL OF THEIR CHOICE BEFORE ENTERING INTO THIS AGREEMENT AND ARE DOING SO WITHOUT DURESS, INTIMIDATION, OR COERCION AND WITHOUT RELIANCE UPON ANY REPRESENTATIONS, WARRANTIES, OR COMMITMENTS OTHER THAN THOSE REPRESENTATIONS, WARRANTIES, OR COMMITMENTS SET FORTH IN THIS AGREEMENT.

(l) JURY TRIAL WAIVER.

PURCHASER AND ENDURA ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF PURCHASER AND ENDURA, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT PERTAINING TO THIS AGREEMENT.