12/18/18

KOP-COAT, INC.’S ORDER ACKNOWLEDGMENT AND TERMS AND CONDITIONS OF SALE

1. AGREEMENT OF THE PARTIES. This Order Acknowledgment of Kop-Coat, Inc. (“Seller”), sets forth the terms and conditions of its offer to sell the goods (the “Goods”) listed on the Seller’s invoice.  This Order Acknowledgement is not an acceptance of any offer to purchase by the purchaser identified on the Seller’s invoice (“Buyer”).  This Order Acknowledgement constitutes the entire agreement between Buyer and Seller relating to the Goods and supersedes any previous or different agreement, understanding or order between Buyer and Seller relating to the Goods. Any term and/or condition proposed by Buyer that is different from, conflicts with or adds to the terms and conditions (“Terms and Conditions”) set forth in this Order Acknowledgment shall be deemed to materially alter those Terms and Conditions and is hereby objected to and rejected by Seller.  Under no circumstances shall any term and/or condition in Buyer’s documents, including purchase orders, correspondence and e-mail or other electronic communications, become part of this Order Acknowledgement.  Neither this Order Acknowledgement nor any provision of this Order Acknowledgment can be waived, amended, or terminated orally, but only by written instrument signed by Seller’s authorized representative.
2. ACCEPTANCE OF AGREEMENT. By accepting the Goods described on the first page of this Order Acknowledgement by any performance hereunder and/or by written acknowledgement, Buyer accepts Seller’s offer contained in this Order Acknowledgment and such acceptance of this offer is expressly limited to these Terms and Conditions.
3. TERMS OF PAYMENT. Terms of payment are 100% Net 30 days from date of Seller’s invoice.  Subject only to any credit terms that Seller may extend, the total purchase price is due at such time, whether it is within or after the estimated shipment period specified in this Order Acknowledgment.  Buyer shall pay all invoices in full within the time for payment specified in the invoice and Buyer’s payment obligation is in no way dependent or contingent upon Buyer’s receipt of payment from any other party.  Under no circumstances shall Buyer withhold monies based on retainage.  Any balance owed by Buyer for thirty (30) days or more after it becomes due is subject to a 1.5% per month delinquency charge until paid.  In addition to all other amounts due hereunder, Buyer shall reimburse Seller in full for all damages, costs and expenses, including attorneys’ fees, which Seller incurs with respect to Buyer’s breach of this Order Acknowledgement or the collection of past due amounts from Buyer.  If Buyer is in default under this or any other agreement with Seller, Seller may, at its option, defer performance until such default is cured.
4. DELIVERY. Delivery terms are F.O.B. Seller’s factory, unless specifically noted as freight allowed.  Dates of delivery are determined from the date of Seller’s acceptance of any order or orders by Buyer and are approximate dates of delivery, not a guaranty of a particular day of delivery. 
5. FORCE MAJEURE. Seller shall not be liable for any failure or delay in performance with respect to delivery or otherwise, if such failure or delay is due to an act of God, war, civil disturbance, riot, labor difficulties, factory capacity, fire, other casualty, accident, inability to obtain containers or raw materials, supplier’s failure or inability to perform, governmental acts or restrictions or any other cause of any kind whatever beyond the reasonable control of Seller.
6. CLAIM PERIOD. Buyer shall notify Seller within 48 hours of receipt of any delivery of any damaged Goods purchased from Seller, or of any complaint whatsoever Buyer may have concerning a delivery.  Buyer also shall note any damage on delivery tickets and shipping receipts at the time of delivery.  Buyer’s failure to give such notice and to note such damage constitutes a waiver of any claim against Seller relating to the damaged Goods.
7. DEFERRED SHIPMENT. If shipment is deferred at Buyer’s request, payment of the price set forth in this Order Acknowledgment shall become due when Buyer is notified by Seller that the Goods are ready for shipment.  In the event Seller is unable to ship within the estimated period for reasons beyond Seller's control, including but not limited to a request by the Buyer to defer shipment, the prices set forth on the Seller’s invoice are subject to upward adjustment to Seller’s prices in effect at the time of shipment. 
8. RETURNS OR CANCELLATION. All return requests must be submitted in writing.  Approved returned items will be subject to a restocking fee based on Seller’s policy with a minimum 15% restocking charge. If Buyer cancels any order after the Goods have been released for production, Buyer agrees to reimburse Seller for all restocking charges which may be incurred and/or the actual cost of manufacturing the Goods, if such Goods were manufactured to order for Buyer.
9. LIMITATIONS OF LIABILITY.
   1. Seller’s sole obligation to Buyer is limited to providing the Goods listed on the Seller’s invoice in compliance with Seller’s applicable product specifications in use by Seller at the time the Goods are manufactured.
   2. Seller shall have no liability for loss of anticipated profits, incidental, consequential, delay or special damages, and Seller shall not be liable, for any reason, whether under this Order Acknowledgement or otherwise, for any loss, cost, expense or damages suffered by Buyer or any third parties including, without limitation, claims, costs, expenses, losses or damages resulting directly or indirectly from the use or loss of use of any equipment and/or systems, or for personal injury and/or property damage made against Buyer by any third party.
   3. All agreements made regarding shipment dates are in good faith, but Seller shall not be responsible for any liability for late delivery of any Goods including, without limitation, for any resulting damages such as for consequential, incidental, delay or acceleration damages or for liquidated damages.
   4. Seller’s total liability to Buyer for any breach by Seller under this Order Acknowledgement or any claim of Buyer against Seller related to or arising from this Order Acknowledgement, directly or indirectly, shall not include liability for special, incidental or consequential damages and shall not exceed the purchase price set forth on the Seller’s invoice.
   5. Buyer’s sole and exclusive remedy for breach of any and all warranties with respect to any Goods shall be replacement, F.O.B. Seller’s factory, of such Goods as determined to be defective in the sole, but reasonable discretion of Seller. Unless authorized in writing by Seller, Seller is not responsible for any charge or expense incurred for the modification or adjusting of such Goods after they have been delivered to Buyer.  Seller shall not be liable in association with any warranty or any warranty work or in any other capacity for any consequential, incidental, special or indirect damages, late fees/damages for delay, or acceleration or liquidated damages or penalties.
   6. Buyer expressly agrees that no action at law or in equity shall be maintained by Buyer against Seller for Seller’s alleged breach of this Order Acknowledgement or violation of any law now in effect or hereafter enacted with respect to any obligation or duty incurred under this Order Acknowledgement by Seller, or otherwise relating to the Goods, unless: (i) Buyer first notifies Seller in writing within ten (10) days from date of such alleged breach or violation, and provided, if the alleged breach or violation has any merit, Seller does not remedy or correct the breach or violation within sixty (60) days from Seller’s  receipt of the notice; and (ii) such action at law or in equity is commenced by Buyer within one (1) year from the date that Buyer first discovered or should have discovered the alleged violation or breach, which provision, however, shall not extend any warranty 
10. EQUIPMENT. In the event that Seller was or is asked by Buyer to assist Buyer in selecting equipment for Buyer’s purchase and/or use to store, handle, prepare and/or apply the Goods, or if Seller has supplied, consigned and licensed any such equipment to Buyer, Seller does so based upon Seller’s belief about the suitability of such equipment for Buyer’s use based on information provided by Buyer.  Buyer shall conform to and follow the equipment manufacturers’ recommendations regarding the features, specifications, performance capabilities, installation, maintenance, use and operation of such equipment.  Buyer acknowledges that the performance of such equipment may depend upon such conforming use by Buyer and upon other factors that may be controlled by Buyer, including but not limited to raw and finished wood product quality and condition, Buyer’s customers’ needs, storage and handling procedures, application procedures and maintenance of such equipment.  Seller therefore does not warrant the performance of or assume any liability for the failure of any such equipment to perform in the manner desired by Buyer.
11. WARRANTY LIMITATIONS. Except for the OBLIGATION SET FORTH IN PARAGRAPH 9 OF THESE TERMS AND CONDITIONS, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE GOODS IS HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED BY SELLER.  NO PROMISE OR AFFIRMATION OF FACT MADE BY ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF SELLER SHALL CONSTITUTE A WARRANTY OR GIVE RISE TO ANY LIABILITY OR OBLIGATION OF SELLER.  UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR LOST PROFITS, LOST PRODUCTION, LABOR COSTS, TRANSPORTATION CHARGES, OR ANY CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, OR FOR DELAY DAMAGES INCLUDING, WITHOUT LIMITATION, DELAY, ACCELERATION OR LIQUIDATED DAMAGES THAT MAY OCCUR AS A RESULT OF A WARRANTY CLAIM OR ANY OTHER CLAIM. 
12. CREDIT APPROVAL. The credit terms specified in this Order Acknowledgment are subject to Seller’s continuing approval of Buyer’s credit, and if, in Seller’s sole judgment, Buyer’s credit or financial standing is impaired so as to cause Seller to deem itself insecure, Seller may withdraw the extension of credit and require other payment terms.
13. SECURITY INTEREST. Until all amounts due under this Order Acknowledgment have been paid in full, Seller hereby retains a security interest in the Goods and has all rights of a secured party under the Uniform Commercial Code, including, without limitation, the right to take possession of the Goods without legal process and the right to require Buyer to make the Goods available to Seller at a place reasonably convenient to both parties.  At Seller’s request, Buyer shall execute any financing statement or statements submitted by Seller in order that Seller’s security interest in the Goods may be perfected.
14. NON-WAIVER. Seller’s failure to enforce any right it may have under these Terms and Conditions shall not be construed as a waiver thereof, nor shall such failure or failures be deemed to establish any custom, usage, course of dealing or course of performance.  The failure of Seller to exercise any rights arising from a default of Buyer or otherwise shall not be deemed a waiver of such right or any other right.  These Terms and Conditions may be enforced at any time, in whole or in part.
15. CHOICE OF LAW, VENUE AND JURISDICTION. This Order Acknowledgement is governed by and subject to the laws of the Commonwealth of Pennsylvania, not including its conflict of law and choice of law principles.  Any dispute or claim arising out of or relating to this Order Acknowledgement, or the breach thereof, shall be resolved only in the appropriate state or federal court located in Pittsburgh, Pennsylvania, which venue shall be the exclusive forum for any and all such litigation.  Buyer agrees to the jurisdiction of such courts located in Pittsburgh, Pennsylvania, over Buyer, and Buyer expressly waives any and all objections or other challenges to such jurisdiction or venue.
16. NO LICENSE GRANTED. Nothing in this Order Acknowledgment or these Terms and Conditions is intended or shall be construed to grant any license or other permission by Seller to Buyer to use any trademarks, trade names, copyrighted materials, patents or other intellectual property rights or interests of Seller at any time.
17. RELATIONSHIP OF BUYER AND SELLER. At all times, the relationship of Buyer and Seller shall be that of purchaser and seller of goods, and at no time shall there be any employee-employer, agent-principal, partnership, joint venture or similar relationship between Buyer and Seller.  Under no circumstances is Buyer authorized to undertake any obligation or other liability on behalf of Seller.
18. ADDITIONAL BUYER RESPONSIBILITIES. Buyer represents to Seller that Buyer is a sophisticated and knowledgeable user of goods of the kind purchased from Seller and that Buyer has the knowledge and information needed to use the Goods safely.  Buyer also represents to Seller that Buyer will provide all appropriate information to Buyer's employees, customers and other third parties that is needed for those employees, customers and third parties to use the Goods and/or products made with the Goods safely.  Buyer shall be solely responsible for disposal of empty containers in which the Goods are shipped and for all raw materials and finished products used or generated in connection with Buyer's use of the Goods.  Buyer also shall be solely responsible for disposal of all by-products, co-products and wastes in connection with Buyer's use of the Goods.  At all times, Buyer shall comply fully with all applicable laws, statutes, ordinances, rules and regulations relating to the use of the Goods, including but not limited to all laws, statutes, ordinances, rules and regulations relating to the disposal of wastes and containers, the labeling of products and/or otherwise relating to health, safety and the environment.  Under no circumstances shall Seller have any responsibility for compliance with such laws, statutes, ordinances, rules and regulations in connection with Buyer's use, disposal or other disposition of the Goods.
19.     BUYER REPRESENTS AND WARRANTS THAT: Buyer will not, and will take action to ensure that its Representatives do not, directly or indirectly, in connection with any Company products, (a) take any action that could cause Company to be in violation of any applicable laws, including, but not limited to, any Anti-Corruption Law, including in all cases the Foreign Corrupt Practices Act of 1977 and The UK Bribery Act, (b) offer, pay, promise to pay, give or transfer or authorize the giving or transferring of anything of value to any entity, person or government official for the purpose of inducing such person to use his or her influence or position to affect or influence any act or decision in order to assist in obtaining or retaining business for, directing business to or securing an improper advantage for  Company (including the issuance of any license or permit to sell or apply Company product) or while believing or having reason to believe that all or a portion thereof would be used to do any of the foregoing, (c)  sell, export, re-export, transmit, divert, or otherwise transfer any Company products or technology, directly or indirectly, to any party identified on any of the lists at http://export.gov/ecr/eg_main_023148.asp, if such action would be prohibited for a U.S. person by U.S. export control laws or economic sanctions, (d) sell, export, re-export, transmit, divert or otherwise transfer any Company products or technology for any end uses if such action would be prohibited for a U.S. person by U.S. export control laws or economic sanctions including any direct or indirect sales into or transport through Cuba, Iran, North Korea, Sudan, Syria or the region of Crimea, or take any actions that would cause Company to be in violation of U.S. export or other local export control laws or economic sanctions, or (e) allow any of its goods and services to be manufactured or provided by child or slave labor or by victims then the subject of human trafficking.  Buyer further represents that it complies with internationally recognized best practices to prevent and identify child, slave labor and human trafficking.