Sto Corp. Terms and Conditions of Sale Coatings Direct Ordering System
STO CORP. TERMS AND CONDITIONS OF SALE
COATINGS DIRECT ORDERING SYSTEM
1. Applicability.
(a) These Terms & Conditions of Sale (the “Terms and Conditions”), together with any order placed by you (“Buyer” or “you”) and accepted by Sto Corp. (“Sto”) (collectively, the “Agreement”), govern your purchase of products (the “Goods”) hereunder and your access and use of the Coatings Direct Ordering System. Please read these Terms and Conditions carefully. By clicking to accept the Terms and Conditions below, you accept and agree to be bound and abide by these Terms and Conditions. Notwithstanding anything herein to the contrary, if a written contract between Buyer and Sto is in existence covering the sale of products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms and Conditions.
(b) These Terms and Conditions shall apply to Buyer’s purchase of Goods. All prior oral or written statements inconsistent with these Terms and Conditions are specifically rejected and disclaimed. No revisions of any of these Terms and Conditions shall be valid unless in writing and signed by the parties and no conditions stated by Buyer in ordering Goods hereunder, in issuing a purchase order to Sto or in any other manner or format, shall be binding upon Sto if in conflict with, inconsistent with, or in addition to these Terms and Conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and/or conditions and does not serve to modify or amend these Terms and Conditions. Except as otherwise provided herein, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by the parties. Additional or differing terms and conditions proposed by Buyer in any format shall be deemed a material alteration of these Terms and Conditions and are hereby rejected.
2. Responsibilities of Buyer:
(a) Buyer shall provide proof of tax-exempt status, if applicable.
(b) Buyer shall advise Sto in writing, prior to shipment, of any special needs in connection with the delivery and/or receipt of Goods at the Delivery Point.
3. Delivery.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s order through the Coatings Direct Ordering System, subject to availability and credit check. When provided, estimated lead times and/or delivery dates are approximate and non-binding, and Buyer shall have no claim against Sto for failure to meet estimated lead times and/or delivery dates. Sto shall not be liable for any delays in delivery, or loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Sto shall deliver the Goods to the destination indicated in the order placed through the Coatings Direct Ordering System (the “Delivery Point”) using Sto’s standard methods for packaging and shipping such Goods. Buyer shall take possession of the Goods immediately upon delivery to the Delivery Point. Buyer shall be responsible for all unloading costs and shall provide all equipment and labor necessary for receipt of the Goods at the Delivery Point.
(c) If for any reason Buyer shall fail to accept delivery of any of the Goods, or if Sto is unable to deliver the Goods at the Delivery Point because Buyer has not provided appropriate instructions, special needs, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Sto, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4. Inspection.
(a) Buyer shall inspect the Goods promptly upon receipt. Buyer will be deemed to have accepted the Goods unless Buyer notifies Sto in writing of any Nonconforming Goods within 48 hours of receipt and furnishes such written evidence or other documentation as may be reasonably requested by Sto. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s order; or (ii) product is damaged and cannot be reasonably used for its intended purpose.
(b) Unless approved in writing by Sto, orders are non-cancellable, payments are non-refundable and materials are non-returnable.
(c) Buyer acknowledges that Sto has a no return policy on all Goods, other than Nonconforming Goods as set forth in Section 4(a). However, for a return to even be considered by Sto, the Goods must be in the same condition as when received by the Buyer.
5. Price.
(a) The price for the Goods shall be indicated and confirmed by the Buyer at the time Buyer places an order through the Coatings Direct Ordering System (the “Price”).
(b) The Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
(c) If Buyer believes there is a discrepancy in Price for any Good, Buyer must bring such discrepancy to Sto’s attention in writing immediately and before an order is placed by Buyer. If Buyer places the order, it will have expressly agreed to the Price.
6. Shipping Terms; Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods to the Delivery Point.
7. Payment Terms.
(a) Buyer shall pay all invoices according to the terms and conditions stated in the signed credit application and agreement between Buyer and Sto unless Buyer and Sto have agreed to other payment terms prior to the shipment of Goods, which must be in writing and approved by an officer of Sto. Buyer shall make all payments electronically in USD.
(b) Buyer understands and acknowledges Sto’s right to charge and collect service charges at the rate of 18% per annum on all late payments. Buyer shall reimburse Sto for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and collection agency fees. In addition to all other remedies available under these Terms and Conditions or at law, Sto shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold payment to Sto for any amounts due and payable by reason of any off-set for any claim or dispute with Sto.
8. Trademarks.
(a) Buyer acknowledges that: (i) any and all of Sto’s Intellectual Property Rights (as defined in Section 8(b)) are the sole and exclusive property of Sto or its licensors; (ii) Buyer shall not acquire any ownership interest in Sto’s Intellectual Property Rights; (iii) any goodwill derived from Buyer’s use of Sto’s Intellectual Property Rights inures to the benefit of Sto or its licensors; (iv) if Buyer acquires any Intellectual Property Rights in or relating to Goods purchased or sold through the Coatings Directc Ordering System, such rights are deemed and are hereby irrevocably assigned to Sto or its licensors, as the case may be; and (v) Buyer shall not use any of Sto’s Intellectual Property Rights unless Buyer has received prior written consent from Sto.
(b) The term “Intellectual Property Rights” shall mean all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or any governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world. For purposes of this Agreement, the term “Trademarks” shall mean all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
9. Limited Liability.
(a) IN NO EVENT SHALL STO BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR THE SALE OF ANY STO PRODUCT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL STO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, ANY BREACH OF THESE TERMS OR THE SALE OF ANY STO PRODUCT HEREUNDER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE AMOUNTS PAID TO STO FOR THE SUBJECT GOODS SOLD HEREUNDER.
10. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances (collectively, “Laws”). Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and Conditions. Buyer shall be solely responsible for informing Sto of all Laws affecting the manufacture, sale, packaging and labeling of Goods which apply to the territories in which the Goods purchased hereby are being used (“Local Regulations”). Buyer shall give Sto as much advance notice as reasonably possible of any prospective changes in the Local Regulations. Without limiting the generality of the foregoing, Buyer shall not engage in any activity or transaction involving the Goods, by way of resale, lease, shipment use or otherwise, that violates any Law.
11. Responsibility for Local Licenses and Import Laws. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms and Conditions. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Goods. Sto may immediately discontinue selling and shipping Goods to Buyer if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. Furthermore, by accepting these Terms and Conditions, Buyer hereby agrees that it will not export or re-sell any Sto product in violation of an export control law of the United States, including, without limitation, the Export Administration Regulations, the International Traffic in Arms Regulations or the rules of the Office of Foreign Assets Control.
12. Anti-Bribery and Anti-Corruption. To the extent that any of the Goods are being sold into a foreign jurisdiction, Buyer shall (i) comply with all applicable Laws relating to anti-bribery and anti-corruption (“Relevant Requirements”), including without limitation the United States Foreign Corrupt Practices Act; (ii) have and shall maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and (iii) promptly report to Sto any request or demand for any undue financial or other advantage of any kind received by Buyer in connection with the purchase of Goods hereunder.
13. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Sto may discontinue selling or shipping Goods to Buyer, without notice to Buyer, if Buyer: (i) fails to pay any amount when due and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Waiver. No waiver by Sto of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Sto. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms and Conditions operates or may be construed as a waiver thereof or of any other right, remedy, power or privilege. Any waiver granted by Sto shall be a waiver for that specific instance or event only and shall not be deemed a continuing waiver for any other instance or event.
15. Force Majeure. Sto shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in supplying Goods or fulfilling or performing these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Sto including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Sto. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms and Conditions.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement is entered into solely between, and may only be enforced by, the Parties hereto. This Agreement shall not be deemed to create any rights in any third parties, including any employees, agents or independent contractors of the Parties, or to create any obligations of a Party to any third parties.
19. Governing Law and Jurisdiction. This Agreement and the legal relationship between the parties hereto shall be governed by and construed in accordance with the laws of the State of Georgia, United States of America, without reference to its conflicts of law principles. To the fullest extent permitted by law, the Parties waive trial by jury of any dispute between or among them and agree that all disputes arising out of or relating to this Agreement shall be determined in the Superior Court of the State of Georgia, Fulton County, or a Federal Court in Georgia in which jurisdiction can be established.
20. Severability. If any provision of this Agreement or portion of such provision or the application thereof to any person or circumstance is held invalid, the remainder of the Agreement or the remainder of such provision shall not be affected thereby.
