TERMS AND CONDITIONS
- APPLICABILITY. These terms and conditions of sale (this “Agreement”) apply to sales of coating products and services (the “Services”) provided by Crest Coating, Inc., hereinafter designated as “Company”. “Customer” is the company so identified in the signature section at the end of this document and as set forth in any applicable quotation, credit application and/or purchase order. Customers’ products and merchandise coated with coatings and finishes pursuant to the terms of the applicable purchase order shall be referred to herein as “Goods.” These terms and conditions are found at ww.crestcoating.com.
- LIMITATIONS TO PRICE QUOTATIONS. Any price quotation provided by Company is based on the fact that the products and merchandise to be supplied by Customer or Customer’s agents will not be counted at the time the products or merchandise are received by Company, but will be counted during the coating process only. Customer shall pack products and merchandise in reusable packaging in a manner that allows for counts to be easily verified and deliver them to Company on re-shippable containers or platforms. Customer agrees that the count made by Company’s employees will be binding upon the parties. If Customer requires Customer’s products and merchandise to be counted, Customer shall advise Company prior to Company’s receipt so that the price can be adjusted. Price quote is valid for sixty (60) days from the date on Quotation. Due to the uncertainty of supply prices, labor increases and energy costs, Company cannot accept a purchase order based on a Quotation older than sixty (60) days and receipt of goods beyond six (6) months or until the quantity ordered is completed, whichever comes first. Other terms may apply where special materials are involved. All International Traffic in Arms Regulations (“ITAR”) jobs must be marked or labeled as “ITAR” on purchase orders sent to Crest. Customer understands and agrees that the material will be applied per manufacturer’s specifications. Once the Quotation is accepted by Customer, the provisions of these terms and conditions, which may be updated from time to time, and are deemed binding on Customer. If there is any conflict between the provisions in these terms and conditions and Customer’s purchase order or Quotation, the provisions in these terms and conditions shall govern and prevail.
- DELIVERY. All shipments shall be FOB place of origin. Subject to Paragraph 8 below, title to all Goods and risk of loss or damage shall pass to Customer upon delivery to the common carrier, unless otherwise agreed to by Company in writing. The Company selected carrier shall not be the agent of Company. Company assumes no liability for any delays or for any loss or damage to merchandise or material while in transit to or from Company’s factory, whether in trucks or vehicles owned by Company, Customer, or any third person acting on Company or Customer’s behalf. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Company. Company shall be entitled to refuse or to delay shipments for failure by Customer to pay within the terms for payments due to Company. Customer shall specify method of delivery in the purchase order or within two (2) days prior to date of shipment. Should Customer not specify a method of delivery in a timely manner then Company will ship the delivery by United Parcel Service (UPS) as the standard mode of delivery. Shipping charges shall be paid by the Customer. Company shall not under any circumstances be considered as an insurer of Customer’s material or merchandise and shall not be liable, regardless of any cause. During storage and transportation of Customer’s material, the containers and packing Customer provides shall be used at no additional cost to Customer. Any damage resulting from the use of Customer’s containers and packing shall be at Customer’s own risk. Should Customer desire other packaging or containers, Customer must authorize such use in writing, as an additional charge will apply.
- CANCELLATION. In the event of cancellation or other withdrawal of an order for any reason, Customer shall pay all costs incurred to that point. This includes, but is not limited to, cancellation costs for time and materials expended by Company’s personnel, expenses, and/or restocking charges, and any costs associated with any commitments made by Company on behalf of Customer, which shall include reasonable attorney’s fees and costs. Company will use commercially reasonable efforts to return non-used raw material for credits to the order. Any restocking charges or cost for material deemed non-returnable shall be paid by Customer. Upon receipt of payment of the cancellation costs, Company will deliver all raw material not returned and any manufactured product in as-is condition with no warranty.
- RETURN POLICY. Written approval must be obtained from Company prior to return of any Goods. Company will not accept any Goods for return unless there is a material issue regarding warranty or workmanship. All Goods returned without a Return Material Authorization (“RMA”) number will be refused automatically. Repair work on material beyond the warranty period will be processed under a new purchase order/work order.
- INSPECTION AND ACCEPTANCE OF GOODS. Inspection of the Goods shall be at Customer’s facility. Customer shall be responsible for conducting the final inspection tests, if necessary. These tests shall be completed promptly and in no event later than five (5) business days after delivery, at which time Customer must either accept or reject Goods. Customer must report any discrepancy in shipment quantity to Company within five (5) business days of delivery. Rejected parts must be immediately returned to Company for rework with an RMA. Further finishing on or assembly of rejected parts, materials, etc. by Customer or any other party shall constitute a waiver of any liability on Company’s part. Company assumes no responsibility for defective plating or other finish on materials or merchandise previously plated or finished by others.
- TERMS. Standard terms of payment are cash on delivery (COD) on the first order made by Customer to Company. Terms of payment on subsequent orders are 1% 10/net 30 days, or other terms mutually agreed to in writing by the parties. Should payment not be received within the 30-day period, any unpaid balance shall commence to bear interest at the rate of 1.5% per month, or such lower rate as is the maximum rate permitted by law, from the 31st day after the date of invoice, plus reasonable attorney fees and collection costs as further describe in Section 15 below. Company reserves the right to suspend or terminate, at any time and for any reason whatsoever, any credit terms previously extended to Customer. Payments will be made to Crest Coating, Inc., and remitted to Crest Coating, Inc., 1361 S. Allec Street, Anaheim, CA 92805, Attn. Accounts Receivable.
- COMPANY’S SECURITY INTEREST. Company retains, and Customer hereby grants Company, a security interest in Goods, including all accessions to and replacements of them until Customer has made payment in full in accordance with the terms hereof, and Customer shall cooperate fully with Company in executing such documents, including a Uniform Commercial Code financing statement, and accomplishing such filings and/or recording thereof as Company may deem necessary for the perfection and protection of such security interest. All Goods in Company’s possession shall be subject to a general lien until payment is made in full. Any special racks, fixtures, or installations which Company constructs or acquires specifically for use on Customer’s order shall be and remain Company’s property and in Company’s sole possession and control.
- TAXES AND SHIPPING COSTS. Company’s prices do not include, and Customer shall pay, any sales, use, excise or similar taxes or government charges attributable to the sale of Goods, and any shipping and handling costs (including insurance) incurred in transporting Goods to Customer. Company shall require a signed California Resale Certificate if Goods are not taxable. Customer agrees to execute the appropriate tax identification and exemption records as required by the State of California.
- SPECIALITY MATERIALS. Terms and conditions for Specialty Materials shall be pursuant to a separate written agreement between the parties. Specialty Materials will be determined by Company.
- WARRANTIES AND REMEDIES. Company makes no warranties to those defined as consumers in the Magnuson-Moss-Federal Trade Commission Improvement Act. Company warrants that, at the time of delivery, the Goods conform to the specifications for the goods described in the applicable purchase order in effect at the time of shipment and are manufactured in accordance with industry standard manufacturing practices. Except as set forth herein, Company makes no warranty, express or implied, and specifically disclaims all implied warranties of merchantability and fitness for a particular purpose. Furthermore, Customer understands and agrees that any coating recommended by Company is solely based on the information provided by Customer for the application requested by Customer, and therefore Company offers no other warranty, express or implied, and specifically disclaims all implied warranties of merchantability and fitness for a particular purpose on such coating and assumes no liability or guarantee for the performance of such coating. Customer further understands and agrees that all testing requirements are the sole responsibility of Customer. The workmanship warranty is to be extended to any Goods found to be defective of workmanship within 10 days of the delivery of the defective Goods. Company elects the remedy to: (1) credit Customer up to the price paid for the coating on the defective Goods or (2) return the defective Goods to the Company and request the Goods be reworked. In no circumstances shall the Company be liable for any consequential, collateral or liquidated damages. Goods must be returned in good condition, without any part thereof altered, defaced or removed, and accompanied by a specification in writing of the defects involved. Customer shall request from Company an RMA number in accordance with paragraph 5 herein when Customer must return Goods which Customer believes has errors, deficiencies or imperfections. Final inspection and determination whether Goods have errors, deficiencies or imperfections shall be made by Company. Other than the express warranty set forth above, Company shall not be liable for any damages of any type or loss as further set forth in Section 18 below.
- CREDIT APPLICATION. Company’s acceptance of any purchase order from Customer is contingent upon receipt and written approval of Customers’ credit application.
- INTEGRATION AND ASSIGNMENT. This instrument contains the entire and the only agreement between the parties with respect to the Goods and Services, and any representation, promise or condition herewith not specifically incorporated herein in writing is hereby deemed invalid. The provisions hereof constitute the term of Company’s offer, and the terms contained in Customer’s purchase order forms or quotations forms, whether or not such forms have been acknowledged or accepted by Company, are expressly limited to these terms. The provisions of this Agreement shall not be changed or modified except by an instrument in writing signed by the parties hereto. Any changes, alterations, waivers or modifications with respect to either the job performed, or the terms of sale, or any other matter set forth herein must be in writing and signed by an officer of Company. Any assignment of this Agreement or any rights or obligations hereunder by Customer shall be void without Company’s written consent. Company reserves the right to transfer or assign any of its rights or obligations with Customer to any wholly owned subsidiary, affiliates of Company or third-party financing source (which assignment will not release Company or Customer from its obligations).
- GOVERNING LAW; VENUE. THIS AGREEMENT AND PERFORMANCE BY THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. THE VENUE OF ANY DISPUTES SHALL BE ORANGE COUNTY, CALIFORNIA.
- COLLECTION FEES AND COSTS. Company shall be entitled to collect from Customer any fees and costs, including attorneys’ fees and costs, incurred by Company for collection of unpaid invoices or other amounts due from Customer to Company.
- INDEMNIFICATION. Customer agrees that Company is not liable, in whole or in part, for any claims or damages arising from (a) use of the Goods in other products, including but not limited to (a) any other application where failure of Goods could lead to possible injury to a person, loss of life or property damage from such use, or (b) any other claims, demands, causes of action, costs expenses or other losses, whether to person or property, that arise from the products in which the Goods are incorporated into unless due to Company’s gross negligence or willful misconduct. Customer agrees to indemnify, defend and hold Company harmless from any and all claims, causes of action, losses, costs, liability or damages arising out of, or in connection with, any of these uses or the products in which the Goods are incorporated into. This indemnification shall survive termination of this Agreement
- INSURANCE. Customer has procured, or will procure, and keep in force (1) Commercial General Liability (CGL) with limits of Insurance not less than: $1,000,000 Each Occurrence Limit, $1,000,000 Personal & Advertising Injury Limit, $2,000,000 Annual Aggregate Limit and $2,000,000 Products-Completed Operations Limit. CGL coverage shall be written on ISO Occurrence form CG00011093 or a substitute form providing equivalent coverage and shall cover liability arising from premises, operations, independent contractors, products-completed operations, and personal and advertising injury; (2) Business Auto Liability with limits of at least $1,000,000 each accident which coverage must include coverage for liability arising out of all owned, leased, hired and non-owned automobiles; (3) Commercial Umbrella with limits of at least $5,000,000. Umbrella coverage must include all entities that are additional insured on the CGL policies. Umbrella coverage for such additional insured shall apply as primary before any other insurance, including any deductible, maintained by, or provided to, the additional insured other than the CGL, Auto Liability and Employers Liability coverage maintained by the Customer; and (4) workers’ compensation insurance with statutory limits and employer’s liability insurance with limits of at least $1,000,000 per occurrence covering all of Customer’s employees. Customer shall name Company as additional insured on such policies of insurance and timely furnish to Company all certificates of insurance in a satisfactory form. Attached to each certificate of insurance shall be a copy of the Additional Insured Endorsement that is part of the Customer’s Commercial General Liability Policy, as well as a copy of the policy’s endorsement providing coverage to the additional insured on a primary and non-contributing basis
- LIMITATION OF LIABILITY. Company shall not be responsible nor shall be held liable to Customer for any indirect, consequential, incidental, special or exemplary damages, including but not limited to, loss of revenue or anticipated profits, loss of investment, loss of product, business interruption or lost business, personal injuries or any payments due for personal injury, even if Company has been advised of the possibility of such damages. At no time shall Company’s liability exceed the value of the Purchase Order or actual payment to Company made by Customer, whichever is less. Company’s charges are based on this policy limiting its liability. Customer agrees to be responsible for all other loss or damage including liabilities and obligations to end users and others. In the event that results of metal finishing operation are unsatisfactory due to metal imperfection, changes in grade or composition of materials, manufacturing and/or fabrication imperfections usages for which the finishing operation was not reasonably designed, or similar variables over which Company has no control, Customer shall be required to pay the contracted amount for the finishing operation performed.
Customer’s failure to indicate expressly in writing the finishing specifications, heat treatment or annealing (if any), type of material or alloy, or condition of surface to be finished shall release Company from any liability related to the Services or Goods and may cause an extra charge to be made to cover any additional expense incurred as a result thereof. Whenever Company is given material with detailed instructions as to treatment, Company’s responsibility shall terminate with the carrying out of those instructions. Type of material, tolerances, and specifications for finishing shall be stated in writing prior to Company’s finishing. In special or experimental processing or finishing, Company’s charges are not contingent upon the success of the work or the benefit derived therefrom by Customer.
All technical advice and recommendations for coatings, case histories, and in some cases, samples are rendered by Customer at no additional charge. They are based on technical data that Company reasonably believes to be reliable and are intended to be used by persons having skills and know how at their own discretion and risk. Company assumes no responsibility for results obtained or damages incurred from their use by Customer or Customer’s agents in whole or in part. Such recommendations, technical advice, and recommendations for coatings are not to be taken as license to operate under, or intended to suggest infringement of any existing patent.
- FORCE MAJEURE. All quotations, orders, or agreements or any modifications thereof are contingent upon and subject to any and all occurrences beyond Company’s control including, but not limited to strikes, work stoppages, slowdowns or other concerted acts of workmen, whether direct or indirect, whether occurring at Company’s factory Customer’s plant or factory, the plant or factory of any supplier of either Customer or Company, or elsewhere; accidents, theft, fires, earthquakes, floods, explosions, war, acts of God, or pandemics such as Covid-19; failure of Company supplied equipment, or materials to meet promised delivery schedules; or affecting to a degree not existing at the date of the Order the supply, availability or use of materials, fuels, utilities, energy or labor. Company shall not be liable for failure to perform any obligations under any agreement for such causes. Should Company notify Customer of Company’s inability to perform any agreement for such causes, Customer shall be required to pick up from Company’s factory, Customer’s raw, finished or unfinished materials at Customer’s own cost and expenses, and at Customer’s own risk and responsibility.
- NOTICES. Any notice to Company under these terms and conditions shall be in writing and shall be received three (3) days after sent by overnight delivery using a reputable company such as FedEx or UPS and addressed to Company as follows: Crest Coating, Inc., 1361 S. Allec Street, Anaheim, CA 92805.
THIS AGREEMENT WILL BE IN FORCE FOR ALL FUTURE ORDERS PLACED BY CUSTOMER UNLESS SPECIFICALLY SUPERSEDED BY A NEW AGREEMENT, DISSOLVED IN WRITING, OR ALTERED BY AN ADDENDUM.