Conditions of Sale

U-POL CANADA LTD CONDITIONS OF SALE

1. DEFINITIONS

In these Conditions, the following words and phrases shall have the following meanings:

“Conditions” means these Conditions of Sale.
“Contract” means any contract or agreement for the sale of Goods and/or Services made by or on behalf of the Supplier with Customer (including any Orders), which, except as otherwise set forth in Section 2, shall include these Conditions.
“Customer” means a person to whom the Supplier supplies or is to supply Goods and/or Services pursuant to a Contract.
“Goods” means the goods which the Supplier supplies pursuant to a Contract.
“HSDS” means the relevant Health and Safety Datasheet available from the Supplier’s website, as updated from time to time.
“Order” means an order in writing for the Goods and/or Services received by the Supplier from the Customer.
“Services” means the services which the Supplier provides pursuant to a Contract.
“Supplier” means U-POL Canada Ltd, a company registered in Canada with company no. BC1154665.
“Supplier’s Marks” mean trademarks, copyrights, trade names, trade dress, certification marks or any other proprietary rights owned and/or licensed by Supplier.

2.   APPLICABILITY

The provisions of these Conditions apply to the commercial relationship between Supplier and Customer to the extent the terms set forth herein do not conflict with or contradict the terms set forth in any agreement, contract or other written document executed by Customer and an authorized representative of Supplier. The Customer’s acceptance of delivery of the Goods or performance of the Services shall constitute unqualified acceptance of these Conditions.

3.   QUOTATIONS AND ACCEPTANCE

A quotation by the Supplier does not constitute an offer and the Supplier reserves the right to withdraw or revise a quotation at any time before it accepts an Order. The Supplier’s acceptance of any Order shall be effective only where such acceptance is either in writing or on the Supplier’s order acceptance form and signed by an authorized representative of the Supplier.

4.   PRICE

4.1       Unless otherwise agreed, the prices that Customer shall pay for the purchase of the Goods and/or Services are set forth on the then-current U-POL Canada Jobber Price List, which may be updated from time to time in Supplier’s sole discretion (the “Prices”). Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties, assessments and charges of any kind imposed by any governmental authority on any amounts payable by Customer, or in connection with the sale or purchase of any Goods and/or Services, under this Contract (collectively, “Taxes”).  Supplier shall invoice Customer upon shipment of the Products. Customer shall notify Supplier in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) no later than thirty (30) days from the date of the invoice.  Customer shall be deemed to have accepted all invoices for which Supplier does not receive such timely written notice of dispute.

4.2       The Supplier may at any time prior to delivery of the Goods or performance of the Services:

4.2.1     withdraw any offered rebates, incentives, discount or credits from the Prices; and/or

4.2.2     revise Prices to take account of increases in costs including, without limitation, the cost of any goods, raw materials, transport, labor or overheads.

5.   PAYMENT

5.1       The Customer shall make all payments due to the Supplier under any Contract in accordance with the terms stated on the invoice.

5.2       If any invoiced amount is not paid within ten (10) days of its due date, Supplier shall be entitled to charge a monthly late charge at the rate of the lesser of one percent (1%) per month or the maximum amount permitted by law on any past due amount from the date such amount was due through the date of payment in full of such amount including interest. Supplier reserves the right to delay, cancel or reject the provision of Goods or Services to the Customer where any amounts are overdue under any Contract until all such amounts have been paid. If Customer fails to pay all amounts due within 30 days, Supplier reserves the right to immediately terminate any Contract and/or pending Orders.

5.4       Customer shall not, and acknowledges that it has no right, under the Contract or under law, to withhold, offset, recoup or debit any amount owed (or that becomes due and owing) to Supplier or its affiliates against any other amount owed (or that becomes due and owing) to it by Supplier or Supplier’s affiliates, whether relating to Supplier’s or its affiliates’ breach or non-performance of the Contract, or any other agreement between Customer and Supplier and/or its affiliates.

5.5.       If, at any time, Customer defaults in making any payment to Supplier or Supplier determines in its sole discretion that Customer’s financial condition or creditworthiness becomes impaired or is otherwise inadequate or unsatisfactory, then Supplier shall have the right without liability or penalty to modify the payment terms to require payment in advance or cash on delivery, cancel any previously accepted Orders or delay or withhold future provision of Goods and/or Services, in whole or in part.

6.   RISK AND TITLE

Except as otherwise specifically agreed in writing that is signed by an authorized representative of Supplier, all Goods are sold with F.C.A. (Free Carrier) shipping point terms of sale.  F.C.A. shipping point means that the title of goods is transferred to Customer when the Order has been loaded onto the carrier’s equipment for transportation and has departed from the Supplier’s shipping location.

7.   WARRANTIES

7.1       Supplier warrants to Customer only that (a) any Goods or Services provided hereunder meet Supplier’s standard specifications for the same or such other specifications as may have been expressly agreed to by Supplier in a Contract; (b) the sale of any Goods or Services provided hereunder will not infringe the claims of any validly issued Canadian patent covering such Good or Service itself, but does not warrant against infringement by reason of (i) the use of any information provided, (ii) the use of any Good or Service in combination with other products, services, or information or in the operation of any process, or (iii) the compliance by Supplier with any specifications provided to Supplier by Customer; and (c) all Goods provided hereunder were produced in compliance with the requirements of the Canada Labour Code. WITH RESPECT TO ANY GOODS, PRODUCTS, SERVICES, OR INFORMATION PROVIDED TO CUSTOMER, SUPPLIER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. Customer assumes all risk and liability resulting from use of the Goods, Services, or information delivered hereunder, whether used singly or in combination with other products, services, or information.  Customer’s sole remedy for breach of warranty under the Contract shall be replacement of the Goods and/or Services.

7.2      Customer represents, warrants and covenants to Supplier, by its acceptance hereof and at each acceptance of Goods and/or Services from Supplier that: (a) the execution, delivery and performance by Customer of the Contract are within its powers and authority; constitute valid and binding agreements of Customer enforceable in accordance with their terms; have been duly authorized by all necessary action on the part of Customer; require no action, notice or consent by or in respect of or filing with, any governmental body or authority, agency or official; do not contravene, conflict with or constitute a default under, any provision of applicable law or regulation or of the certificate of formation or operating agreement (or similar charter documents) of Customer or any of its affiliates or of any agreement, judgment, injunction, order or other instrument or obligation binding upon Customer or any of its affiliates; (b) there is no action, suit or proceeding pending, or threatened, against or affecting Customer or any of its affiliates or any of their locations or assets before any court, mediator or arbitrator of any governmental body, agency or official that in any manner draws into question the validity of, or could materially impair the ability of Customer to, enter into, execute, deliver or perform its obligations under the Contracts, or could have or cause a material adverse effect on Customer or its operations; and (c) to the extent that Supplier will be performing (or otherwise assisting with) the installation of equipment at Customer’s facility(ies), Customer represents, warrants, and covenants that it has properly and accurately assessed for all hazards and properly electrically classified area(s) of installation in accordance with applicable federal, provincial, state, and local electrical codes and standards.

8.   INDEMNITY

Customer agrees to defend, indemnify and hold harmless Supplier, its affiliates and its and their respective officers, directors, shareholders, employees, agents and representatives from and against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs (including reasonable attorneys’ fees and costs actually incurred), expenses or disbursements of any kind or nature whatsoever, whether direct, indirect, consequential or incidental, with respect to or in connection with or arising out of any (i) misrepresentation or breach of any representations, warranties, covenants or agreements under the Contract, or (ii) Customer’s performance of or failure to perform any of its obligations under the Contract or (iii) negligence or willful misconduct of Customer.

9.   LIMITATION OF LIABILITY

IN NO EVENT WILL SUPPLIER’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING FROM ANY AND ALL CLAIMS RELATED TO THE BREACH OF THE CONTRACTS, ORDERS OR THESE CONDITIONS, NONDELIVERY, OR THE PROVISION OF ANY GOODS, PRODUCTS OR SERVICES, OR INFORMATION COVERED BY THE CONTRACT, REGARDLESS OF WHETHER THE FORM OF ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR OTHERWISE, EXCEED THE TOTAL PRICE PAID BY CUSTOMER TO SUPPLIER FOR THE GOODS, PRODUCTS, SERVICES, OR INFORMATION IN RESPECT OF WHICH DAMAGES ARE CLAIMED. NO CLAIM SHALL BE ALLOWED FOR GOOD THAT HAS BEEN PROCESSED IN ANY MANNER. FAILURE TO GIVE NOTICE OF A CLAIM WITHIN NINETY (90) DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVERY (IN CASE OF NONDELIVERY) SHALL CONSTITUTE A WAIVER BY CUSTOMER OF ALL CLAIMS IN RESPECT OF SUCH PRODUCTS, GOODS, SERVICES, OR INFORMATION. GOODS SHALL NOT BE RETURNED TO SUPPLIER WITHOUT SUPPLIER’S PRIOR WRITTEN PERMISSION. NO CHARGE OR EXPENSE INCIDENT TO ANY CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENTATIVE OF SUPPLIER. IN ADDITION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING OUT OF OR RELATING TO THE CONTRACTS OR THE PROVISION OF ANY GOODS, SERVICES, OR INFORMATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE AND AGREE NOT TO ASSERT NON-CONTRACTUAL CLAIMS ARISING UNDER PROVINCIAL OR STATE LAW RELATING TO THE CONTRACTS OR THE PROVISION OF ANY PRODUCTS, GOODS, SERVICES, OR INFORMATION COVERED BY THE CONTRACTS. WAIVER BY EITHER PARTY OF ANY DEFAULT BY THE OTHER HEREUNDER SHALL NOT BE DEEMED A WAIVER BY SUCH PARTY OF ANY DEFAULT BY THE OTHER WHICH MAY THEREAFTER OCCUR.

10.   TERMINATION

10.1      If Customer breaches any term of the Contract (including these Conditions), and such breach is not remedied within 30 days after written notice of such breach is received by Customer or if Customer becomes insolvent, dissolves or assigns its assets for the benefit of its creditors, or files or has filed against it any bankruptcy or reorganization proceeding, then Supplier may terminate any Order, in whole or in part, and/or the Contract.

10.2      In the event of any early termination of a Contract, Customer shall (i) immediately pay Supplier all amounts owing to Supplier, and (ii) take all other termination actions set forth in the applicable Contract and as otherwise reasonably requested by Supplier.

10.3      In addition to Supplier’s right to terminate the Contract as set forth above, if Customer breaches any term of this Contract (including these Conditions), then Supplier shall immediately be relieved of its obligation to provide any of the benefits to Customer provided in, and shall have the right to immediately suspend performance under, the Contract.

11.   INTELLECTUAL PROPERTY

Customer acknowledges that all of Supplier’s patents and Supplier’s Marks are solely owned by Supplier and Customer is not acquiring any ownership, license or other rights in Supplier’s patents and/or Supplier’s Marks. Customer shall not deface, alter or modify Supplier’s Marks, use Supplier’s Marks in any manner that would invalidate the registration thereof or in a manner that is likely to cause confusion, or use Supplier’s Marks in combination with trademarks, copyrights, logos or trade names of a third party.  Customer shall immediately notify Supplier if Customer learns that Customer or a third party is infringing on Supplier’s patents or Supplier’s Marks.

11.   HEALTH AND SAFETY

Customer acknowledges that it has received and is familiar with Supplier’s labelling and literature concerning the products and its properties, including the most recent health and safety information set forth in the applicable HSDS. Customer shall forward such information to its employees, contractors and customers who may distribute, handle, process, sell or use such products, and advise such parties to familiarize themselves with such information. Customer agrees that products sold hereunder will not knowingly be resold or given in sample form to persons using or proposing to use the products for purposes contrary to recommendations given by Supplier or prohibited by law but will be sold or given as samples only to persons who can handle, use and dispose of the products safely. Unless agreed to by Supplier in a written agreement covering such use, in no event shall Customer use products or resell products for use in the manufacture of any implanted medical device. Customer agrees that export of any product, service or information provided hereunder shall be in accordance with applicable export control laws and regulations.

12.   FORCE MAJEURE

12.1 No liability shall result from delay in performance or nonperformance, directly or indirectly caused by circumstances beyond the control of the party affected, including, but not limited to, act of God, fire, explosion, flood, war, pandemic, act of or authorized by any governmental authority, accident, labor trouble or shortage, pandemic, inability to obtain material, equipment or transportation, failure to obtain or hardship in obtaining reasonably priced supplies of materials, or failure of usual transportation mode (each, a “Force Majeure”). Quantities so affected may be eliminated from the Contract without liability, but such Contract shall remain otherwise unaffected. Supplier shall have no obligation to purchase supplies of the Goods specified herein to enable it to perform the Contracts.

12.2 If for any reason, including, but not limited to, a Force Majeure, Supplier is unable to supply the total demand for Goods specified in an Order or Contract, Supplier may distribute its available supply among any or all purchasers, as well as departments and divisions of Supplier, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.

13.   CONFIDENTIALITY

Customer shall maintain in confidence any confidential information disclosed by Supplier to Customer, including, without limitation, any trade secrets, proprietary information, and the terms and conditions of the Contract (collectively, “Confidential Information”), and shall treat such Confidential Information as if it were Customer’s own confidential information, but in no event shall Customer treat the Confidential Information with anything less protective than a commercially reasonable standard of care for the protection of confidential information. In addition, Customer shall neither provide the Confidential Information disclosed hereunder to any third party nor use such Confidential Information for any purpose other than to conduct business as contemplated hereunder.

14.   NOTICES

All notices required to be sent hereunder shall be in writing, and shall be given (a) by delivery in person, (b) by an internationally recognized next-day courier service or (c) by registered or certified mail (return receipt requested, postage prepaid) and shall be deemed to have been given upon receipt by the party to which notice is given or two days after the day of mailing, whichever is sooner. Customer shall send notices to the addresses and to the attention of the persons set forth below, or to such other address or individual as the parties may specify from time to time by written notice to the other party.

Supplier:
Steve Cooper
U-POL Canada Ltd
108 Commerce Way
Stockertown, PA 18083

With a copy to:
Chief Global Counsel, Refinish
Axalta Coating Systems
50 Applied Bank Blvd., Suite 300
Glen Mills, PA 19342

15.   GOVERNING LAW AND JURISDICTION

THE CONTRACT (INCLUDING ANY ORDERS AND THESE CONDITIONS) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.  THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS OR ANY VERSION THEREAFTER SHALL NOT GOVERN THE CONTRACTS.  EACH PARTY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF, AND SERVICE OF PROCESS BY, THE COURTS OF COMPETENT JURISDICTION IN THE PROVINCE OF ONTARIO, CANADA. SUPPLIER AND CUSTOMER HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE CONTRACTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.

16.   Assignment; Change of Control

The Contract binds the parties, as well as their legal representatives, permitted successors and permitted assigns.  Customer shall not assign, subcontract or otherwise delegate any of its rights or obligations under this Contract without the prior written consent of Supplier.  Further, Customer shall not permit or enter into any transaction that would constitute a change of control or closure of it, which shall not be unreasonably withheld.  Permitted assignees and/or successors of Customer shall assume all responsibility for all obligations and duties of Customer under this Contract.  Any assignment without Supplier’s consent shall be void.  Supplier may assign the Contract without prior written consent of Customer, in whole or in part, to any third party.

17.   Reimbursement Obligations

In addition to any other relief it may be awarded or entitled to, Supplier shall be entitled to any attorneys’ fees, court costs, interest and other costs reasonably incurred by Supplier in any dispute, controversy or claim arising out of or relating to the Contract or litigation or other action to enforce the Contract.  This right to collect such fees and expenses shall survive any expiration or termination of this Contract for any reason.

18.   MISCELLANOUS

The Contract supersedes all prior agreements, representations and understandings between the parties (whether written or oral) with respect to its subject matter and constitutes (along with the exhibits and schedules attached hereto) a complete and exclusive statement of the terms of the agreement between the parties with respect to the provision of products or services hereunder. Not by way of limitation of the unqualified nature of the foregoing, Customer acknowledges, agrees and represents that it is not relying upon, and it has not been induced by, any representation, warranty, statement made by, or other information provided by Supplier in connection with its decision to purchase or use any product, service, information or technology, other than the representations and warranties Supplier as and only to the extent expressly provided in such Contract.  No modification of any Contract shall be binding upon Supplier unless separately contracted in writing and executed by a duly authorized representative of Supplier. No modification shall be effected by the acknowledgment or acceptance of purchase order forms stipulating different conditions. If either party fails to require the other party to perform any term of the Contracts, such failure will not prevent such party from enforcing such term later. If either party waives the other party’s breach of any term of any Customer, such waiver will not be deemed a waiver of a later breach of such term.  The Contracts do not and are not intended to confer any rights or remedies upon any person other than the parties.  No course of dealing, usage of trade or course of performance shall be used to supplement or explain any term, condition or instruction in the Contracts, nor be deemed to amend the Contracts. The Contracts may be executed in counterparts with the same force and effect as if executed in complete documents. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a document and executed and adopted by a party with the intent to sign such document.