TERMS & CONDITIONS

1.   

CONTRACT - ENTIRE AGREEMENT.   These terms and conditions govern all sales of products and services by SpaceVinyl LLC (“SpaceVinyl”) from time to time to buyer or any of its affiliates (collectively, “Buyers”). These terms and conditions and the additional terms, conditions and specifications on any SpaceVinyl Sales Order Form (the “Contract”) contain the final and entire contract between SpaceVinyl and Buyer with respect to that sale, and no representation, affirmation of fact, course of prior dealings, promise or condition in connection therewith, course of performance or usage of the trade not specified in this Contract shall be binding on either party. In no event shall transactions be subject to any affirmation of fact or promise which relates to the application, performance or description of the products or services unless such affirmation of fact or promise is in writing and signed by one of SpaceVinyl’s authorized representatives or is confirmed by SpaceVinyl’s signed acknowledgment. Any terms and conditions of any purchase order or other form or document issued by Buyer, irrespective of their materiality, which are either different from, or additional to, the terms and conditions expressed herein are objected to and excluded and shall not be binding on SpaceVinyl unless expressly agreed to in a written acknowledgment issued by SpaceVinyl, and performance shall not constitute agreement to any such different or additional terms or conditions. No agreement or other understanding purporting to add to or to modify the terms and conditions of the Contract shall be binding upon SpaceVinyl unless agreed to by SpaceVinyl in writing.

2.

TIME OF COMPLETION/ DELIVERY.   Completion/delivery dates are approximate and are based upon prompt receipt by SpaceVinyl of all necessary information and cooperation. SpaceVinyl shall use commercially reasonable efforts to complete the services and/or deliver the products on the date(s) set forth in this Contract but SpaceVinyl shall not be liable for any delay in completion or delivery. Unless otherwise indicated in this Contract, all shipments hereunder shall be FCA SpaceVinyl’s facility at 423 Exchange Street, Geneva, New York 14456 (Incoterms 2010). If Buyer shall require postponement of shipment beyond the date(s) specified in this Contract, and if SpaceVinyl consents to such postponement, Buyer shall nonetheless pay the contract price on the date due (being the same date such payment would have been due if there had been no postponement). Notwithstanding any provision of the contrary herein contained, the risk of loss of, or damage to, the products whose shipment has been postponed, shall pass to Buyer upon the delivery date specified in this Contract. Buyer may not under any circumstances return the delivered products to SpaceVinyl without the prior written consent of SpaceVinyl.

3.

PRICE - PAYMENT.   SpaceVinyl’s price or rates and payment terms shall be as specified in this Contract. SpaceVinyl reserves the right to refuse delivery except for cash, including payment for all products previously delivered, and to stop delivery, whenever, in the sole discretion of SpaceVinyl, there is doubt as to Buyer’s responsibility. A finance charge equal to 1% per month (equivalent to 12% per annum) will be charged on all past due balances. In addition, if Buyer shall fail at any time to make any payment when due hereunder or otherwise to fulfill this Contract, SpaceVinyl may, without prejudice to other lawful remedies, (i) defer further deliveries or other performance by it under this Contract until all such defaults by Buyer have been fully cured, or (ii) cancel this Contract.

4.

ADDITIONAL CHARGES.   All prices are exclusive of any applicable federal, state or local duty, sales use, excise or other similar taxes, now in effect or here after imposed. All such taxes shall be for Buyer’s account and shall either be paid directly by Buyer or added to the price herein provided. In the event that the price of any product includes transportation charges, any increases or decrease in transportation charges shall be for Buyer’s account.

5.

ART WORK; IP RIGHTS.   

(a) Buyer shall provide SpaceVinyl with all artwork specified in the Sales Order Form, in the format prescribed in that Form, by the date indicated therein. Buyer acknowledges that failure to do so may delay delivery of SpaceVinyl’s products and services.

(b) Buyer herby grants SpaceVinyl a non-exclusive, perpetual, irrevocable, worldwide, transferable, royalty-free right and license to use, publish, display, commercialize and exploit its name, brand(s) and logo(s) and all related trademarks, service marks and copyrights (collectively, “IP Rights”) on or in connection with the design, manufacture, marketing, promotion, advertising, distribution and sale of SpaceVinyl products and services, including the right and license to create derivative works incorporating any and all elements of the IP Rights.

(c) Buyer agrees that for a period of three years after the date of this Contract, it will not license or otherwise authorize or permit any other person or entity anywhere in the world to use any of the IP Rights in connection with products of the same type as, or that compete with, the SpaceVinyl products to which this Contract relates.

6.

INSPECTION.   Buyer must inspect all products within five business days of delivery for quality and conformity to this Contract. Products shall be deemed acceptable unless rejected in writing within that five-business-day period.

7.

LIMITED WARRANTY.   SpaceVinyl warrants for a period of 90 days after delivery that: the product(s) and service(s) furnished hereunder shall conform to the specifications set forth in this Contract; and the products when properly used and maintained will be free from defects in material and workmanship. Buyer shall promptly notify SpaceVinyl in writing of any breach of SpaceVinyl’s warranties and shall provide satisfactory proof thereof. SpaceVinyl’s warranties do not extend to any damages or losses due to misuse, accident, disaster, abuse, neglect, or normal wear and tear. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SPACEVINYL EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR ANY OTHER MATTER SHALL NOT APPLY AND SPACEVINYL DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES WITH RESPECT TO TITLE, NON-INFRINGEMENT, VALIDITY AND ENFORCEABILITY. BUYER REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN.

8.

BUYER'S REMEDIES.   In the event any product or service furnished hereunder is found not to conform to any warranty expressed in this Contract, SpaceVinyl will, at its option, either (a) re-perform such service or repair or replace such product, or (b) repay the contract price herein of such service or such product upon its return by Buyer to SpaceVinyl. SpaceVinyl’s delivery hereunder of any product(s) or service(s) not in conformity with this Contract shall not constitute a breach of this Contract and shall not affect Buyer’s obligations with respect to any other products or services furnished hereunder. Buyer’s remedies shall be limited exclusively to re-performance, replacement or repayment, as SpaceVinyl may elect in its sole discretion.

9.

LIMITATION OF LIABILITY.   

(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUES, USE OR OPPORTUNITIES ARISING FROM THE SERVICES PERFORMED OR PRODUCTS SOLD BY SPACEVINYL OR OTHERWISE IN CONNECTION WITH THIS CONTRACT. THE LIMITATIONS AND PROTECTIONS AGAINST LIABILITY AFFORDED THE PARTIES HEREIN SHALL APPLY TO ANY ACTION OR CLAIM IN CONNECTION WITH THIS CONTRACT OR THE SERVICES PERFORMED OR PRODUCTS SOLD BY SPACEVINYL, WHETHER BASED ON CONTRACT, TORT, STATUTE OR OTHERWISE (INCLUDING NEGLIGENCE, WARRANTY AND STRICT LIABILITY).

(b) SpaceVinyl’s cumulative limit of liability for said claims shall in no event exceed the purchase price of the products or services or portion thereof with respect to which loss or damage is claimed. Should the remedy of repair or replacement of defective products or reperformance of the defective services be found inadequate or to have failed of its essential purpose for any reason whatsoever, Buyer agrees that return to it of the purchase price of the particular product or service by SpaceVinyl shall prevent the remedy from failing of its essential purpose and shall be considered by Buyer a fair and adequate remedy. The remedies set forth herein are exclusive.

10.

FORCE MAJEURE.   SpaceVinyl shall not be liable for any delay or impairment of performance to the extent resulting from fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, terrorism, wars, riots or embargo, delays, government allocations or priorities, shortages of transportation, equipment, fuel, labor or materials, severe weather conditions, changes of law or regulation, acts of Buyer or any other circumstance or cause, whether or not similar to any of the foregoing, beyond the reasonable control of SpaceVinyl.

11.

NOTICE. Any notice, request authorization, consent, waiver or other communication related to this Contract must be delivered by, or recognized air courier service, facsimile or electronic mail with acknowledgement of receipt, to the address of the receiving party set forth on the SpaceVinyl Sales Order Form that is a part of this Contract.

12.

WAIVER.   A party’s waiver of any breach or failure to enforce any provision of this Contract or any other right shall not be construed as a waiver of any other breach of the same or any other provision or right.

13.

ASSIGNMENT, TRANSFER.   Neither this Contract nor any rights or obligations hereunder may be assigned or otherwise transferred by Buyer whether by operation of law or otherwise, unless SpaceVinyl shall have consented in writing to such assignment or transfer.

14. 

ATTORNEY'S FEES. In any litigation relating to the Contract, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and disbursements.

15. 

GOVERNING LAW, ETC.   The Contract shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of law doctrine. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts sitting in Ontario County in the State of New York, and waives any jurisdictional, venue or inconvenient forum objections to such courts. In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and this Agreement shall otherwise remain in full force and effect and enforceable.