CAPITAL ADHESIVES, INC.
TERMS AND CONDITIONS OF SALE
Thank you for doing business with Capital Adhesives, Inc., an Indiana corporation (“Capital Adhesives”.) Any and all sales of goods, services, materials, equipment, machinery, or supplies (“Goods”) from Capital Adhesives to any purchaser of such Goods (“Buyer”) shall be subject to these Terms (as defined below), which shall supersede, and take the place of, any different or additional terms or conditions set forth on any quote request(s), purchase order(s), order form(s), order acknowledgement(s) or any other written or digital communication or documentation of any kind relating in any way to Capital Adhesives’ sale to Buyer, and Buyer’s purchase from Capital Adhesives, of any and all Goods.
TERMS AND CONDITIONS
- AGREEMENT
By purchasing Goods from Capital Adhesives, Buyer hereby agrees to all terms and conditions set forth herein and in any and all attachments hereto (the “Terms”). Buyer also hereby expressly acknowledges and agrees that these Terms shall supersede, and take the place of, any and all different or additional terms or conditions set forth in any Buyer request(s) for quote(s), purchase order(s), order form(s), purchase or order acknowledgement(s), or any other written or digital communication or documentation of any kind relating in any way to Buyer’s purchase of Goods from Capital Adhesives, or Capital Adhesive’s sale of Goods to Buyer. In the event any conflict whatsoever arises between these Terms and any different or additional terms or conditions, these Terms shall always control under any circumstances. Buyer’s acceptance of any purchase from, or sale by, Capital Adhesives, including Buyer’s acceptance of delivery of any Goods purchased from Capital Adhesives, shall constitute Buyer’s additional confirmation of the foregoing.
- PAYMENT
Invoices shall be issued by Capital Adhesives to Buyer in accordance with Capital Adhesives’ customary invoicing procedures in place from time to time. All invoices shall be due and payable by Buyer in lawful money of the United States of America promptly following Capital Adhesives’ issuance thereof, but in no event later than thirty (30) days after the date of such invoice. Payment of all invoices shall be in accordance with any and all other terms and conditions set forth therein unless otherwise specifically agreed by Capital Adhesives in writing. All amounts owed by Buyer to Capital Adhesives that are not timely paid in accordance with these Terms, and any other applicable invoice terms, shall be charged a one and one-half percent (1.5%) late fee per month (“Late Fee”) beginning on the thirty-first (31st) day following Capital Adhesives’ delivery of Goods to Buyer; provided, however, that such Late Fee shall not exceed the maximum charge permitted by applicable law. If Buyer fails to timely pay any amount owed to Capital Adhesives in accordance with these Terms and any applicable invoice, Capital Adhesives may, in its sole and exclusive discretion and in addition to all other rights and remedies set forth in these Terms and applicable law, defer or delay any further shipment of Goods until such payment is made, or cancel the applicable purchase order(s) and/or any future order(s) placed by Buyer with Capital Adhesives. In any such case, Capital Adhesives reserves the right at any time to require from Buyer satisfactory security for performance of Buyer’s obligations, and any refusal to furnish such security will entitle Capital Adhesives to suspend or, in the sole discretion of Capital Adhesives, cancel, any current or future shipments until such security is furnished.
- TITLE; RISK OF LOSS
All sales by Capital Adhesives to Buyer shall be F.O.B. Capital Adhesive’s Indianapolis, Indiana facility (freight pre-paid and charged back) and, unless otherwise specifically referenced and provided for directly in the applicable written or digital purchase order confirmation from Capital Adhesives, title and risk of loss relating to any and all Goods sold by Capital Adhesives to Buyer shall pass upon loading the Goods to the carrier of choice by Capital Adhesives.
- INSPECTION OF GOODS
Buyer expressly acknowledges its responsibility, immediately upon receipt of any Goods from Capital Adhesives, to inspect all such Goods for conformity to purchase order quantities and for any defects. If Buyer determines that any Goods received from Capital Adhesives do not conform to the applicable purchase order quantities, or contain improper charges, Buyer shall, within fourteen (14) calendar days of Buyer’s receipt of such Goods, provide written notice of same to Capital Adhesives and, for any claimed shortages, afford Capital Adhesives a reasonable opportunity to inspect and cure any such shortage. Any and all claims for alleged product defect(s) or non-conformity to mutually agreed purchase order specifications must be submitted to Capital Adhesives in writing within thirty (30) calendar days of delivery of the applicable Goods. Unless; A) such thirty (30) day written notice is provided, and Capital Adhesives is given reasonable opportunity thereafter to inspect the Goods for any such defect or non-conformity; and B) Capital Adhesives confirms in writing the existence of one or more defects or non-conformities on any Goods delivered, and; C) mutually agreed arrangements are thereafter made for such defective or non-conforming Goods to be replaced (or credit given in lieu thereof), no Goods will be returnable to Capital Adhesives nor may they be credited or replaced unless otherwise specifically agreed in writing by Capital Adhesives in connection with informal resolution efforts that take place following delivery of Goods.
- LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
Capital Adhesives warrants solely that any Goods produced by Capital Adhesives and shipped to Buyer will materially conform to the description(s) and specification(s), if any, set forth in the applicable purchase order placed by Buyer and acknowledged and accepted by Capital Adhesives. THE GOODS SOLD UNDER THIS AGREEMENT ARE OTHERWISE PURCHASED BY BUYER “AS IS” AND “WITH ALL FAULTS” AND CAPITAL ADHESIVES MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND RELATING THERETO, INCLUDING, BUT NOT LIMITED TO, ANY EXPESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY AND EXPRESSLY DISCLAIMED.
- NO LIABILITY FOR CONSEQUENTIAL OR SPECIAL DAMAGES; LIMITATION OF REMEDIES
UNDER NO CIRCUMSTANCES SHALL CAPITAL ADHESIVES BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF GOODWILL, LOSS OF SALES REVENUE OR PROFITS, WORK STOPPAGE, DELAY, PRODUCT FAILURE, IMPAIRMENT OF GOODS OR OTHERWISE, REGARDLESS OF WHETHER SUCH CLAIM OR CLAIMS ARISE OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, AND IN ANY CASE, CAPITAL ADHESIVES’ LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES SUSTAINED, OR ALLEGEDLY SUSTAINED, BY BUYER OR OTHERS, ARISING OUT OF, OR BY REASON OF, BUYER”S PURCHASE, USE OR RE-SALE OF GOODS OR SERVICES FROM CAPITAL ADHESIVES, SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE APPLICABLE GOODS OR SERVICES RECEIVED BY BUYER FROM CAPITAL ADHESIVES.
- INDEMNIFICATION
Buyer shall indemnify, defend, and hold harmless Capital Adhesives and its shareholders, officers, directors, employees, contractors, agents, and affiliates from and against and all claims, losses, obligations, fees, or expenses of any kind or nature which may arise from or in any way relate to Buyer’s use, misuse, handling, modification, manipulation, application, operation of, or any other act or omission of any kind or nature related to, the Goods, in each case after Capital Adhesives’ delivery of the Goods to Buyer pursuant to Section 3 of these Terms.
- ENFORCEMENT OF TERMS; NO WAIVER
Any failure or delay of Capital Adhesives to enforce any provisions of these Terms, or to exercise any right or remedy arising from any default of Buyer hereunder, shall not affect or impair Capital Adhesives’ rights hereunder or under applicable law, and no such forbearance or failure shall be construed as a waiver of Capital Adhesives’ rights to act or to enforce each and every provision of these Terms and any other remedy available to Capital Adhesives under applicable law.
- PRICES; TAXES
Any and all prices for Goods, whether such prices are set forth herein, in any purchase orders/acknowledgements, in any published quotes, online, or in any other document or agreement used to facilitate Buyer’s purchase of Goods from Capital Adhesives, are subject to change at any time in Capital Adhesives’ sole and exclusive discretion, in order to reflect material increases to supplier or raw material prices in effect at the time of the shipment of Goods. Unless otherwise indicated, prices are exclusive of all local, state, federal and international taxes, customs duties or tariffs. Any such charges which Capital Adhesives may be required to collect or remit under any existing or future law with respect to the sale, delivery, storage, processing, use or consumption of any Goods or services purchased or ordered from Capital Adhesives by Buyer, shall be for the account of Buyer, and Buyer shall promptly pay the full amount thereof to Capital Adhesives upon demand.
- CONFIDENTIAL INFORMATION; NON-DISCLOSURE
All specifications, samples or other non-public information furnished by Capital Adhesives to Buyer, including, without limitation, these Terms (“Capital Adhesives Material”), shall be deemed to be the personal property and confidential information of Capital Adhesives. All such Capital Adhesives Material will be treated and protected by Buyer as strictly confidential, and will not be reverse-engineered or disclosed to any third party without the prior written consent of Buyer; provided, however, that Buyer may disclose such Capital Adhesives Material within Buyer’s organization or to any contractors or customers only on a need-to-know basis as necessary to purchase, or to thereafter use or apply Goods purchased from Capital Adhesives.
- CONFLICT WITH APPLICABLE LAW; SEVERABILITY.
No specific provision of these Terms shall be effective to the extent that such provision may be illegal or unenforceable. If any provision of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these Terms, and the effect thereof shall be confined to the provision as to which such adjudication is specifically made.
- FORCE MAJEURE
Capital Adhesives shall not be liable for any failure or delay in the performance of its obligations or duties hereunder or in any invoice, nor for any claims, damages, or liability which arises therefrom, if such failure or delay directly or indirectly results from fire, explosion, flood, earthquake, war, terrorism, pandemic, riot, insurrection, civil disturbance, accident, storm, interruption or delay in transportation, shortage, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other occurrence reasonably beyond Capital Adhesives’ reasonable control.
- MODIFICATION
No change, modification or adjustment to these Terms, nor to any invoice or other document related to purchase orders for Goods placed by Buyer with Capital Adhesives, shall be effective unless specifically and directly referenced and agreed upon by Capital Adhesives in its purchase order confirmation or otherwise agreed upon in writing by authorized representatives of both Buyer and Capital Adhesives following delivery of Goods.
- ENTIRE AGREEMENT; SURVIVABILITY; GOVERING LAW AND VENUE
These Terms, along with any applicable additions or modifications accepted by Capital Adhesives in writing within any purchase order acknowledgement, constitute the entire agreement between the parties with respect to the subject matter hereof. Sections 5–15 of these Terms shall indefinitely survive the termination or expiration of these Terms and any applicable purchase orders. These Terms, all purchase orders, and the relationship between Capital Adhesives and Buyer shall be governed by, and construed according to, the laws of the State of Indiana, irrespective of any choice of law principles. Any and all disputes arising in any way under these Terms or any applicable purchase order(s) shall be brought and heard exclusively in the State or Federal courts located in Marion County, Indiana, and Buyer hereby accepts and acknowledges exclusive jurisdiction thereof and waives any and all rights to claim forum non conveniens.
- ASSIGNMENT
Buyer’s purchase order, as accepted and acknowledged by Capital Adhesives in writing, inclusive of Buyer’s duties under these Terms, may not be delegated or assigned by Buyer without Capital Adhesives’ express written consent, and any assignment attempted without such consent shall be null and void ab initio, and may effect, at Capital Adhesives’ sole option, a cancellation of all of Capital Adhesives’ obligations hereunder and thereunder. Capital Adhesives may, without the consent of Buyer, assign its rights and duties under these Terms or under any applicable purchase orders to any affiliate of Capital Adhesives, including, without limitation, any entity to which a substantial portion of Capital Adhesives’ equity or assets are sold or otherwise transferred.
Revised 1/10/2025
4876451.3