Sales & Service Terms & Conditions
Red Spot Paint
Terms and Conditions of Sale
• OFFER, GOVERNING PROVISIONS AND CANCELLATION: This document is an offer or counter-offer by Red Spot Paint & Varnish Co., Inc. or any of its subsidiaries or companies ("Red Spot") to sell the goods and/or services described in it in accordance with these terms and conditions. This document is not an acceptance of any offer made by you ("Buyer"), and any agreement by Red Spot to make any sale to Buyer is expressly conditioned upon Buyer's assent to these terms and conditions. Red Spot objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by Buyer to Red Spot. No such additional or different terms or conditions will be of any force or effect. The terms contained in or incorporated into this document will be the entire agreement between Red Spot and Buyer on the subject of the transaction described herein, and there are no conditions to that agreement that are not so contained or incorporated. THIS OFFER AND THAT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF INDIANA AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. No accepted offer may be canceled or altered by Buyer except upon terms and conditions accepted by Red Spot in writing, and no changes to this document will be binding unless set forth in a writing that is manually signed by Red Spot. This offer may be revoked by Red Spot at any time before it is accepted by Buyer and shall automatically expire thirty (30) calendar days after its date if Buyer has not accepted it before then. Neither Buyer's acceptance of this offer nor any conduct by Red Spot (including but not limited to shipment of goods) shall oblige Red Spot to sell to Buyer any quantity of goods in excess of the quantity that Buyer has committed to purchase from Red Spot at the time of such acceptance or conduct.
• PRICES: Prices are quoted F.O.B. Red Spot's plant, freight collect, unless otherwise noted on the face of the Red Spot's Price Quotation. In addition to the purchase price listed on Red Spot's Price Quotation and/or Invoice, Buyer shall reimburse Red Spot the amount of all tax, duty, excise or other governmental charge which may now or hereafter be imposed by any federal, state, provincial, or local or foreign government authority on the production, sale, transportation, delivery or use by Red Spot of any material covered by this order. Change in cost or availability of raw materials that are required to manufacture products sold by Red Spot may warrant a price increase, if the cost of the raw materials increases by more than ten percent (10%) from the price which was the basis for the prices as originally quoted herein or if such materials are unavailable. Prices are subject to change without notice. Interest will be charged at the lesser of (a) eighteen percent (18%) per year or (b) the highest rate permitted by applicable law, on accounts more than thirty (30) calendar days past due.
• FORECAST AND RELEASE DATES: Buyer must provide firm release dates at the time of submitting an order. Red Spot is a custom manufacturer of specialty coatings and will not stock material without a firm release date. Release dates cannot be modified without written consent from Red Spot. In addition, Buyer will be required to provide Red Spot with the required Forecast information (Release Date and expected Forecast Date).
• MINIMUM ORDER QUANTITY: Red Spot will not accept production orders of less than the minimum order quantity as specified on the Red Spot's Price Quotation.
• MANUFACTURING LEAD-TIME: Forecasted orders placed by Buyer require a minimum of fifteen (15) working days' lead-time, measured from the date of order acceptance, not including shipping time. The lead-times for un-forecasted orders will be quoted based on availability of raw materials, available schedules, and other factors.
• LABELING OF PRODUCT CONTAINERS: Red Spot will provide its standard label for each individual product container. If Buyer requires additional information or a different label (hereinafter "Customized Label"), Buyer shall submit its request to Red Spot, who shall provide a price quotation for the development, printing, and cost of attachment of the Customized Labels to the product container. Buyer must provide a Purchase Order for the quoted price. Set-up will not begin on label customization until such Purchase Order is received.
• ELECTRONIC DATA INFORMATION SET-UP REQUESTS: If Buyer requires Electronic Data Information ("EDI") set-up to communicate needs such as forecasts, releases, & ASN's, Buyer shall submit its request to Red Spot, who shall provide a price quotation based on the complexity of the Buyer's request. Set-up will not begin on an EDI request until such Purchase Order is received.
• ORDER COMPLETION: Any order for less than two hundred (200) gallons is considered complete if gallons shipped are within ten gallons of the original order. Any order for two hundred (200) gallons or more is considered complete if gallons shipped are at least ninety-five percent (95%) of the original order. The Buyer must notify Red Spot if an additional order is required due to any shortage caused by these completed orders.
• PAYMENT AND CREDIT APPROVAL: All sums shall be payable according to the payment terms stated on Red Spot's Price Quotation and/or Invoice, measured from the date of Red Spot's Invoice. Red Spot's acceptance of any payment is subject to collection. Unless otherwise noted on Red Spot's Price Quotation and/or Invoice, payment terms shall be net 30 days from date of invoice. Buyer's orders are subject to approval by Red Spot's Corporate Credit Department. Red Spot, without prior notice, may, upon reasonable dissatisfaction with Buyer's creditworthiness, or upon late payment of any invoice or any other default by Buyer, at its option, and without prejudice to any other lawful remedy, decline to make delivery except for cash on delivery, payment in advance of shipment, or payment upon placement of order. Red Spot may, at its sole discretion, refuse to ship product to Buyer if Buyer (a) is delinquent in paying invoices according to the terms specified on any invoice; (b) is in default on any of the terms and conditions contained herein or on Red Spot's Price Quotation; (c) is in default on any of the terms and conditions contained in any other order; or (d) becomes bankrupt or insolvent, becomes subject to receivership or liquidation, makes an assignment for the benefit of its creditors or ceases to carry on business in the ordinary course. Any objection to Red Spot's invoices must be made in writing and submitted to Red Spot within ten (10) business days of the invoice(s). Buyer shall not issue an unauthorized debit or offset any money due and owing to Red Spot. Buyer agrees to cooperate with Red Spot by providing financial information requested by Red Spot, including annual and interim income statements, balance sheets and statements of cash flow, with prior year comparative amounts. Buyer agrees to disclose other information as requested by Red Spot's Chief Financial Officer to enable Red Spot to make credit decisions.
• TERMINATION FOR BREACH: Red Spot may terminate all or any part of the order without any liability if Buyer (a) fails to abide by any of the terms and conditions established herein, (b) refuses to accept the shipment of any products, or (c) attempts to issue an unauthorized debit or offset any money due and owing to Red Spot.
• EXCLUSION OF WARRANTIES; LIMITATION OF DAMAGES: RED SPOT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SALE OF PRODUCT(S) OR SERVICE(S) LISTED ON RED SPOT'S PRICE QUOTATION AND/OR INVOICE, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS AND SERVICES ARE EXCLUDED AND SHALL NOT APPLY TO THE GOODS SOLD AND SERVICES.
Any description of goods or services, whether in catalogs or other documents, or made orally, by Red Spot or Red Spot's agents, including but not limited to specifications, samples, models, bulletins, websites, drawings, diagrams, engineering sheets or similar materials, used in connection with this document are for the sole purpose of identifying the goods or services and shall not be construed as an express warranty. Any suggestions by Red Spot or Red Spot's agents regarding use, application or suitability of goods or services shall not be construed as an express warranty. Red Spot's sales representatives are not authorized to make any warranties or enter into any other contractual commitments on behalf or in the name of Red Spot.
Red Spot's liability to Buyer, Buyer's agents, employees, customers, assigns, successor or other related parties for any and all losses or damages with respect to the goods or services sold hereunder shall be limited to the contract price. UNDER NO CIRCUMSTANCES SHALL RED SPOT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF USE OF REVENUE, LITIGATION COSTS, COST OF CAPITAL, BUYER'S FIXED COSTS, OR AVOIDABLE COSTS). RED SPOT SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY RED SPOT, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Buyer is under a strict obligation to mitigate any potential damages.
Buyer shall indemnify and hold harmless Red Spot from and against any and all losses, liabilities, damages and expenses (including, but not limited to, attorneys' fees and other costs of defense) that Red Spot may incur as a result of any claim by Buyer or by Buyer's customers or by any third party, arising out of or in connection with the goods or services sold hereunder, including, but not limited to, any such claim based upon the negligence of Red Spot in designing, manufacturing, performing and/or selling such goods or services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of Red Spot.
• FORCE MAJEURE: Red Spot shall not be liable for any delay in or impairment of performance resulting in whole or in part from an event such as an Act of God or Public Enemy; war; riot; fire; explosion; accident; flood; mechanical breakdown; embargo; sabotage; terrorism; Red Spot's inability to obtain fuel, power, raw material, labor, supplies, containers or transportation; governmental laws, regulations, orders or other actions; national defense requirements; labor trouble, strike, lockout or injunction; any of which event(s) prevent the manufacture, shipment or delivery of the goods or other events beyond the reasonable control of Red Spot. In no event shall Red Spot be required to purchase goods from other sources to fulfill the Buyer's order, nor shall Red Spot be responsible for any costs, losses or damages of any kind or nature whatsoever, whether direct, indirect or consequential, suffered by Buyer due to delay or failure to perform as a result of any such occurrence.
Red Spot may, during the period of shortage due to any of said causes, allocate its supply of raw materials, goods, and/or labor among itself, for its own manufacturing uses, and its customers in such manner as Red Spot, in its sole judgment, may deem practical and/or reasonable, without liability for any failure to perform under any Buyer's order.
• RETURNS: No material may be returned to Red Spot without prior permission. Buyer must first receive a Material Authorization Return number from Red Spot's Quality Department, and all returned material must be shipped prepaid. Red Spot assumes no responsibility for, and no credit will be issued for, return shipments made without permission.
• ASSIGNMENT OR TRANSFER: Buyer may not assign or transfer, in whole or in part, any of its rights or obligations under Red Spot's Price Quotation and/or Sales Contract.
• SHIPPING AND DELIVERY: Buyer shall be limited to one (1) shipment per week. Subject to Red Spot's right of stoppage in transit, title to all material sold hereunder shall pass to Buyer upon delivery to the carrier for shipment thereof. Unless otherwise specified, all shipments shall be made at the expense and risk of Buyer and Red Spot assumes no liability for damage to the material after delivery to the carrier. Delivery of goods to the carrier shall constitute delivery to Buyer regardless of shipping terms or freight payment.
Shipment dates are only based on Red Spot's best estimates. Red Spot will exercise its best efforts to ship on schedule, but shall not be liable for any damages or loss caused by any delay in delivery caused by reasons beyond Red Spot's control. Claims for shortages or other errors in delivery must be made in writing to Red Spot within five (5) calendar days after receipt of shipment, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss of or damage to goods in transit must be made to the carrier, and not to Red Spot.
• PATENTS. Red Spot will, at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent relating to goods or services provided by Red Spot, except to the extent such alleged infringement is based upon Red Spot's use of Buyer's specifications, and will pay any final damage award therein, provided Buyer shall have made all payments then due hereunder, shall give Red Spot immediate notice in writing of any such suit, shall transmit to Red Spot immediately upon receipt all processes and papers served upon Buyer, and shall permit Red Spot, through its counsel, to defend or settle the same either in the name of Buyer or in the name of Red Spot, giving Red Spot all needed information, assistance and authority to enable Red Spot to do so. Further, if the result of any such suit is a determination or acknowledgement of infringement, Red Spot shall, at Red Spot's option, (a) obtain for Buyer the right to continue to use the goods or products of the services purchased from Red Spot, or (b) replace the same with non-infringing goods or services, or (c) modify such goods or services so that they are non-infringing, or (d) remove such goods or products of services and refund to Buyer any un-depreciated portion of the purchase price, determined on the basis of a five-year useful life.
To the extent that any goods or services that Red Spot furnishes to Buyer are manufactured in accordance with specifications proposed or furnished by Buyer, Buyer shall indemnify and hold harmless Red Spot from and against any and all losses, liabilities, damages, claims and expenses (including, but not limited to, Red Spot's reasonable attorneys' fees and other costs of defense) incurred by Red Spot as a result of any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties.
• JURISDICTION, ARBITRATION: Red Spot shall have the right to bring suit in any court of competent jurisdiction to collect any amounts owed by Buyer to Red Spot, together with attorneys' fees and other costs of collection. Any and all other disputes, complaints, controversies, claims and grievances arising under, out of, in connection with, or in any manner related to this sale or the relationship of the parties hereunder shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any decision and award of the arbitrator shall be final, binding and conclusive upon the parties and said decision and award may be entered as a final judgment in any court of competent jurisdiction. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Evansville, Indiana before one (1) arbitrator who shall be an attorney who has substantial experience in commercial law, unless Buyer and Red Spot mutually agree otherwise. The fees and expenses of the mediator shall be split and paid equally by Buyer and Red Spot. Buyer and Red Spot shall pay its own attorneys' fees, costs and expenses of such arbitration. Either party may apply to any court of competent jurisdiction for injunctive relief or other interim measures in aid of the arbitration proceedings, or to enforce the arbitration award, but not otherwise. The arbitrator shall not be authorized or empowered to award punitive, exemplary, consequential or special damages or attorneys' fees, and Buyer and Red Spot expressly waive any claim to such damages or fees.
• LANGUAGE, SEVERABILITY, NO IMPLIED WAIVER:
- Buyer acknowledges that these terms and conditions and all documents relating hereto shall be in the English language only.
- If any term of these terms and conditions is invalid or unenforceable, that term or provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of these terms and conditions will remain in full force and effect.
- The failure of Red Spot at any time to require performance by the other party of any provision of these terms and conditions will not affect the right to require performance at any later time, nor will the waiver of Red Spot of a breach of any provision of these terms and conditions constitute a waiver of any breach of same or other provisions of these terms and conditions.
Terms and Conditions for Consulting Services
Each of the following Terms and Conditions controls the sale to you (Buyer) by Red Spot Paint & Varnish CO., Inc. or any of its subsidiaries or companies (Seller), and attach to and are incorporated into every Price Quotation and Invoice or Sales Contract issued by Seller..
1. ACCEPTANCE: All orders and sales contracts are subject to acceptance or rejection by Seller and are not binding on Seller unless and until so accepted. Acceptance of an order by Seller constitutes a complete and binding contract governed by the terms and conditions of sale appearing herein and by the laws of the State of Indiana. Acceptance is at all times subject to availability for delivery of the goods or services covered by each order, and to Seller prices for said goods and services in effect at the time of shipment, unless otherwise agreed in a separate Agreement signed by Buyer and Seller. Prices on the face hereof are those in effect on the date this Acknowledgment or Invoice was prepared.
2. WARRANTY: Seller warrants only that the goods of services supplied hereunder shall meet the description or specification stated herein. Seller makes no warranty, either expressed or implied, as to its findings, recommendations, test results or professional services, except that the report will be prepared in accordance with standard procedures, as applicable to testing. Buyer or Buyer's customers' exclusive remedy and Seller's sole liability hereunder shall be limited to refund of the purchase price or replacement of all goods supplied by Seller or services performed by Seller shown to be otherwise than as warranted and Seller shall in no case be liable otherwise or for any loss or damage, direct, incidental, or consequential, arising out of the use or the inability to use the goods supplied or services as results. It is the sole responsibility of the Buyer or the Buyer's customer, whichever the case may be, to determine the suitability of the goods supplied or services for the Buyer or Buyer's customers intended use. Said refund or replacement is conditional on Buyer giving Seller notice within ninety (90) days from the date of delivery by Seller, that said goods or services are otherwise than as warranted. Failure by Buyer to give said notice within said ninety (90) day period, shall constitute a waiver by Buyer of all claims hereunder with respect to said goods or services. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WRITTEN OR UNWRITTEN EXPRESSED OR IMPLIED WARRANTIES AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY EXPRESSED OR IMPLIED WARRANTY AGAINST INFRINGEMENT OF MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE GOODS OR SERVICES SUPPLIED HEREUNDER, ALL SAID GOODS OR SERVICES BEING SUPPLIED BUYER "AS IS".
3. TITLE AND RISK OF LOSS: Title and risks of loss or delay of goods and services supplied hereunder shall pass to Buyer upon Seller's delivery thereof to carrier at shipping point.
4. CHANGE OR CANCELLATION OF ORDER: Sellers will give due consideration to any request of Buyer for modification or cancellation of his order or release against an order but the same may not be modified or cancelled without the written consent of Seller. The waiver of a breach by Buyer of any provision of the contract shall not constitute a waiver of any other breach by Buyer or of a subsequent breach of said provision by Buyer for the same or any other cause.
5. CONTINGENCIES: In the event of war, fire, flood, strike, labor trouble, accident, riot, act of government authority, act of God, or other contingencies beyond the control of the parties, interfering with the production, supply, transportation or consumption of the goods and services covered by this order, or with the supply of any raw material used in connection therewith, quantities so affected may be eliminated from the contract without liability or delay of delivery, but the contract shall otherwise remain unaffected. Seller may during any period of shortage or delay of delivery due to any of said causes , prorate its supply of such goods and services among its customers under this and other orders and contracts in such manner as Seller may deem fair and practicable.
6. QUOTATIONS: Unless otherwise specified, quotations are for information only and are not intended as an offer and are subject to change without notice in all respects, including prices, delivery dates, terms, quantities, or specifications.
7. TERMS OF PAYMENT:Terms of payment shall be in United States dollars as stated on individual invoice. If the Buyer's credit is unsatisfactory in the sole judgment of the seller, the Seller reserves the right to require payment by Cash-In-Advance or to reject any order.
8. TAXES:Any tax or other government charge now or hereafter levied upon the production, sales, use or shipment of goods and services ordered or sold may, at Seller's option, be added to the purchase price.
9. FREIGHT: Shipments will be made with freight collect except as may otherwise be specified by Seller. The most economical routing will be used at the discretion of Seller. Additional transportation costs incurred at Buyer's direction or resulting from his request will be at Buyer's expense.
10. ENTIRE AGREEMENT: All of the terms and conditions represent the entire agreement between Seller and Buyer with respect to the sales of goods and services supplied hereunder and said agreement cannot be modified except by a new written contract signed by both Seller and Buyer covering the sale of said goods and services.
11. NO TEST STANDARDS ESTABLISHED: When standards do not exist for an application, Red Spot Paint & Varnish CO., Inc. will use the methods and procedures specified herein, and makes no warranty except that the test results will be based upon full compliance with the specified methods and procedures agreed upon with your company.
12. ENDORSEMENTS: Test reports contain only findings and results based on the specific test procedures and standards listed. They are not intended to constitute a recommendation, endorsement, or certification of the product or material tested.
13. REPRESENTATIVE SAMPLES: The tests done on the requested and/or specified number of samples may or may not constitute a representative sampling.
14. ADVERTISING RESTRICTION: Red Spot Paint & Varnish CO., Inc. reports are rendered upon the condition that they are not to be reproduced wholly, or in part, for advertising and/or endorsement. Our signature or the use of our name without special permission, in writing, from an officer of the company is prohibited.
15. REPRODUCING RESTRICTION: Red Spot Paint & Varnish CO., Inc. reports may not be reproduced, in whole or in part, without written authorization from Red Spot Paint & Varnish CO., Inc.
16. SCHEDULING: Scheduling of goods and services will not be done until a purchase order and required materials are received from the customer. If materials do not arrive by the schedule date, the goods and services schedule may be delayed. The delay could result in a new schedule for the goods and services.