Terms and Conditions of Purchase
TERRASLATE INC. TERMS AND CONDITIONS OF PURCHASE
1. Acceptance; Controlling Terms. A purchase order (the “Order”) is the offer of TerraSlate Inc. (“Buyer”) to purchase the goods and any related services (the “Goods”) described on its face and is expressly limited to these Terms and Conditions of Purchase (these “Terms”) together with the face of the Order. The seller identified on the Order (“Seller”) accepts by acknowledging the Order, beginning performance, or shipping any Goods, whichever occurs first. The face of the Order and these Terms are the complete and exclusive agreement of the parties and supersede all prior or contemporaneous communications. Any additional or different terms in any Seller acknowledgment, invoice, quotation, or other document are hereby rejected, are deemed material alterations under UCC § 2-207, and have no effect unless accepted in a writing signed by Buyer’s authorized representative. Where these Terms are silent, Article 2 of the Uniform Commercial Code as adopted in Colorado governs, and the default terms below apply unless the face of the Order states otherwise.
2. Order of Precedence. In the event of conflict, the following order controls: (a) a writing signed by Buyer expressly amending the Order; (b) the face of the Order; (c) these Terms; and (d) documents incorporated by reference. No Seller document modifies the Order.
3. Prices. Prices are firm as stated on the face of the Order and are not subject to increase, escalation, or surcharge without Buyer’s prior written consent. Except as the face of the Order states otherwise, prices include all packaging, freight, insurance, duties, and other charges to the delivery point. Seller warrants that its prices are no higher than those charged to other customers for like Goods in like quantities.
4. Payment; Default Terms. Unless the face of the Order states different payment terms (in which case the face controls), Buyer will pay undisputed, properly invoiced amounts within forty-five (45) days after Buyer’s receipt of the Goods at the delivery point and Buyer’s acceptance of the Goods. Each invoice must reference the Order number. Payment is not acceptance and is without prejudice to Buyer’s rights. Buyer may withhold, or set off against any amount owed to Seller or its affiliates, any amount subject to a good-faith dispute or claim.
5. Consignment. If the face of the Order states that Goods are provided on consignment, title and risk of loss remain with Seller until Buyer opens the applicable pallet or unit, at which time title to that pallet or unit passes to Buyer and payment becomes due on the terms stated on the face of the Order. Buyer may return unopened consigned Goods to Seller at Seller’s cost.
6. Delivery; Title; Risk of Loss. Time is of the essence. Unless the face of the Order states otherwise, Goods are delivered FOB Buyer’s designated facility (destination), and for imported Goods on a Delivered Duty Paid basis; Seller bears all cost and risk of loss or damage until the Goods are delivered to the delivery point. Responsibility and cost of unloading at the delivery point are as stated on the face of the Order. Title passes to Buyer on the later of delivery and acceptance, free and clear of liens. A packing slip showing the Order number must accompany each shipment. Buyer may reject and return, at Seller’s expense, any quantity in excess of that ordered.
7. Inspection, Acceptance, and Rejection. All Goods are subject to Buyer’s inspection and testing at any reasonable time and place, including after receipt. Neither payment, receipt, nor inspection is acceptance. Buyer may reject Goods that do not conform to the Order, the specifications, or the warranties, and may revoke acceptance of nonconforming Goods within a reasonable time after the nonconformity is or should have been discovered. Buyer’s remedies are cumulative and in addition to those available under the UCC.
8. Nonconforming or Damaged Goods; Returns. Unless the face of the Order states otherwise, if Goods are nonconforming or damaged, Buyer will notify Seller of the number of cartons affected and the carton numbers shown on the shipping boxes. Seller will promptly issue Buyer a credit for the affected Goods and will elect, at Seller’s cost, either (a) return of the affected Goods to Seller or (b) destruction of the affected Goods by Buyer. Buyer is not obligated to pay for nonconforming or damaged Goods, and all return freight and disposal costs are at Seller’s expense.
9. Warranties. Seller warrants that all Goods: (a) conform to the Order, specifications, drawings, and samples; (b) are new, merchantable, and fit for the purposes intended by Buyer, including any purpose made known to Seller; (c) are free from defects in design (to the extent designed by Seller), material, and workmanship; (d) are free of liens and do not infringe any third-party intellectual property right; and (e) are produced, packaged, labeled, and sold in compliance with all applicable laws. For any coating fluid, chemical, or other regulated product, Seller further warrants that the Goods conform to their published specifications and certificate of analysis, are not adulterated or misbranded, are accompanied by a current Safety Data Sheet, and comply with all applicable hazard-communication, transportation, and environmental laws (including OSHA Hazard Communication/GHS, U.S. DOT, and TSCA requirements, and FDA requirements where applicable). These warranties survive inspection, acceptance, and payment.
10. Compliance with Laws. Seller will comply with all applicable federal, state, and local laws and regulations in performing the Order, including product-safety, labeling, environmental, and hazardous-materials laws, and will provide certificates and documentation Buyer reasonably requests.
11. Changes. Buyer may, by written notice, make changes within the general scope of the Order, including to quantities, specifications, delivery schedule, and packaging. If a change materially affects the cost or time of performance, an equitable adjustment will be made on Seller’s written claim submitted within ten (10) days after the change notice. No change binds Buyer unless authorized in a writing signed by Buyer.
12. Cancellation and Termination. Unless the Goods are custom-made for Buyer and already produced, any time before shipment Buyer may terminate the Order, in whole or in part, for convenience on written notice, in which case Buyer’s sole liability is the price of conforming Goods shipped before termination. Buyer may terminate for cause, effective immediately, if Seller breaches these Terms (including late or nonconforming delivery) and fails to cure within ten (10) days of notice or Buyer requests written assurance of delivery in accordance of the schedule and Seller fails to promptly provide such assurance.
13. Indemnification. Seller will indemnify, defend, and hold harmless Buyer, its affiliates, and their officers, directors, employees, and customers from and against all claims, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of (a) Seller’s breach of these Terms or the warranties, (b) any actual or alleged defect in the Goods, (c) Seller’s negligence or willful misconduct, or (d) any actual or alleged infringement of intellectual property by the Goods.
14. Insurance. Seller will maintain, at its expense, commercial general liability, product liability, workers’ compensation, and automobile liability insurance in amounts reasonable for the Goods and consistent with industry practice, and, on request, will name Buyer as an additional insured and provide certificates of insurance.
15. Remedies; Limitation of Liability. Any limitation, disclaimer, or exclusion of warranties or remedies in Seller’s documents is void. Buyer’s remedies are cumulative and in addition to those available at law, in equity, or under the UCC. Nothing in the Order limits Seller’s liability to Buyer.
16. Confidentiality; Buyer Property. Seller will keep confidential all non-public information disclosed by Buyer, including specifications, formulations, pricing, and business information, will use it only to perform the Order, and will not use Buyer’s name or the existence of the Order for publicity without Buyer’s written consent. Any tooling, materials, designs, or specifications furnished or paid for by Buyer remain Buyer’s property, are held at Seller’s risk, and are used only to fill Buyer’s Orders.
17. Assignment; Independent Contractor. Seller may not assign or subcontract the Order or any right or obligation under it without Buyer’s prior written consent; Buyer may assign the Order to an affiliate or successor. Seller performs as an independent contractor.
18. Governing Law; Venue; Jury Waiver. The Order is governed by the laws of the State of Colorado, without regard to its conflict-of-laws rules; the U.N. Convention on Contracts for the International Sale of Goods does not apply. The state and federal courts located in Denver County, Colorado have exclusive jurisdiction over any dispute, and each party consents to venue there, waives any objection to it, and waives trial by jury.
19. General. No waiver is effective unless in writing, and a waiver of one breach is not a waiver of any other. If any provision is held unenforceable, the remainder stays in effect. Notices must be in writing and sent to the addresses on the face of the Order or as otherwise designated in writing. Sections concerning payment, warranties, indemnification, confidentiality, insurance, and governing law survive termination. Headings are for convenience only.
