Terms & Conditions

Acceptance

SKYWASH, Inc. is herein referred to as “Seller,” and the customer purchasing products (“Products”) is herein referred to as “Purchaser.” Unless otherwise agreed in writing by Seller in a duly executed agreement which is in effect as of the date of Purchaser’s purchase, these terms and conditions of sale (“Terms”), any Seller quotation, acknowledgment, invoice and other document or form prepared or delivered by Seller (collectively, “Seller Documents” and together with these Terms, the “Agreement”), constitute the complete terms governing the sale of Products.

Seller may update these Terms at any time without notice. The current version of these Terms shall apply to all shipments made after such website has been updated. Please refer to Section 34 if the Seller is Located (as defined in Section 34) outside the United States. SELLER NOW REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF THE PURCHASER’S BUSINESS FORMS OR ON PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. These Terms apply to all sales of Products, all Seller Documents, and all purchase orders (“Purchase Orders”) from Purchaser. No site usage agreement or any other click-through agreement on a website will have any applicability or binding effect on whether or not the Seller clicks on an “ok,” “I accept,” or similar acknowledgment.

Commencement of any work by Seller, or Purchaser’s acceptance of delivery of any Products, will manifest Purchaser’s consent to the Agreement. Additional or different terms applicable to a particular sale may only be specified in the body of a Seller Document or expressly agreed to in writing by the parties. In the event of a conflict, the following order of precedence will apply: (a) terms expressly agreed to in writing and executed by an authorized officer of Seller; (b) Seller Document terms; (c) these Terms. Notwithstanding anything preceding to the contrary, if a reference to these Terms is contained in any Seller Document or writing executed by an authorized officer of ITW, these Terms shall take precedence over any conflicting or contrary terms.

Quotations

Quotations are only valid in writing and for 30 days from the date of the quotation unless otherwise outlined in the Seller’s quote. All quotations by Seller are subject to change or withdrawal without prior notice to Purchaser. Quotations are made subject to approval by Seller of Purchaser’s credit. Seller may refuse and shall have no obligation to sell or deliver Products unless and until Seller issues an order acknowledgment or upon the shipment of products.

Prices

Prices shall be in the currency outlined in Seller’s quotation and are subject to change without prior notice for any reason. In addition, if a raw material, component, or service provider raises its prices or imposes a surcharge on Seller, or if the cost of any of Seller’s inputs into the Products increase, Seller reserves the right to increase prices and/or surcharge Purchaser. Purchaser agrees to accept such price increase or surcharge until the term of such cost increase or surcharge or until the termination of the contract to which these terms and conditions apply is reached.

Time of payment is of the essence. All orders are accepted subject to the Seller’s price at the time of shipment. If Purchaser objects to any price increase (regardless of the amount or cause of such increase), or if Purchaser refuses to provide a new purchase order reflecting such price increase, Seller may, at its option, stop any or all future shipments of Products (regardless of whether such price increase affects such Products).

Terms of Payment

The inspection rights granted to the Purchaser will not affect or alter the payment terms or the timing of Purchaser’s payment obligations. Under no circumstances will Purchaser have a right of set-off. Seller shall have the right to offset its payables against its receivables related to goods purchased from Seller. Unless otherwise expressly agreed to by Seller in Seller’s quotation, terms of payment are thirty (30) days net from the date of Seller’s invoice. No discount shall be allowed on transportation charges.

In the event of Purchaser’s failure to pay Seller’s invoice(s) or of any late invoice payments by Purchaser, Seller reserves the right to take any or all of the following actions:

• Any actions allowable under law;
• Withhold shipment of any Products;
• Demand the return of previously shipped goods;
• Institute new payment terms and/or
• Cancel any purchase orders.

In addition, Purchaser agrees to pay interest on overdue invoices at the rate of 1.5% per month, but not higher than the highest rate permitted by law. Suppose the Purchaser fails to make any payment as required. In that case, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred by Seller.

Purchaser is expressly forbidden from debiting or invoicing Seller for any sums, amounts or damages which the Supplier has not explicitly acknowledged as being its responsibility to pay. Any amount so debited or invoiced shall be deemed a failure by the Purchaser to pay Seller’s invoice(s) in the amount of such debit or invoice.

Credit Approval

All shipments made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller may invoice Purchaser and recover for each shipment made according to these Terms as a separate transaction without regard to any other order or agreement with Seller.

If, in Seller’s sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, Seller may, at its option and without prejudice to any of its other remedies:

• Defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance and/or
• Terminate any or all Purchase Orders of Purchaser.

Cancellation or Modification.

Seller reserves the right to cancel any Purchase Orders or releases thereunder or terminate any agreement relating to purchase of Seller’s Products upon 10 days’ notice to Purchaser. Additionally, Seller may, in its sole discretion, allocate its available supply of Products among itself and its customers in such manner as Seller, in its reasonable judgment, deems fair and equitable.

Once Seller has either accepted a Purchase Order or has begun taking actions concerning such Purchase Order, such Purchase Order cannot be canceled, terminated, or modified by Purchaser in whole or in part except with Seller’s consent in writing. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits.

Suppose the purchaser nonetheless repudiates the contract or notifies the seller to proceed no further than that. In that case, Seller shall have the right to deliver all finished goods and goods in process, and Buyer agrees to accept same and to pay to Seller the contract price for all finished goods plus reimbursement for unfinished goods.

Inspection / Non-Conforming Shipments

Seller grants Purchaser the right to inspect Products for a period of 15 business days immediately following delivery (“Inspection Period”). Purchaser must notify Seller in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period. Purchaser must afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller with such written notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the Products.

Purchaser shall not return any Product without Seller’s prior written authorization. Any return authorized by Seller must be made under Seller’s return policies then in effect and accompanied by a Returned Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs and expenses associated with any returns of Products and bear the risk of loss or damage to such Products unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale.

Seller, in its sole discretion, may reject any return of Product not approved by Seller in accordance with this paragraph or otherwise not returned under Seller’s then-current return policies.

Title / Risk of Loss / Delivery

Seller anticipates the use of common carriers for transport of Products. Unless expressly otherwise provided in Seller’s invoice, the carrier, and not Seller, will bill for freight rates and other transportation charges. Such payments are solely the responsibility of the Purchaser and are to be paid directly by the Purchaser to the carrier. Seller reserves the right to schedule its production and to make deliveries accordingly. When the Purchaser specifies deliveries to be made in installments, which do not conform to such schedule, and the Seller elects to deliver as determined by the Purchaser, the Seller shall have the right to adjust the price to cover the Seller’s additional costs.

All Products shall be shipped ExWorks Seller’s plant (Incoterms 2020). Title to the Products and risk of loss shall pass to Purchaser upon delivery in accordance with the applicable shipping term. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products illicitly after the delivery to the carrier. All shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller reserves the right to ship items in single or multiple shipments.

Damage

Purchaser must notify Seller and the delivering carrier within fifteen (15) business days from date of receipt of Products of any damage or shortage and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for the Purchaser’s account, and claims for such loss shall be made solely against the carrier.

Quantities

Unless otherwise agreed in writing, any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with the Purchaser’s Order, and the stated price per item will continue to apply. If a Purchase Order does not specify quantities or defines the quantities as “blanket order,” “as released,” “as scheduled,” “as directed,” “subject to Purchaser’s production releases,” or another similar reference, or if a Purchase Order purports to be a “Requirements Contract” (or something similar). Still, Seller has not expressly agreed to such requirements and obligations in writing. Seller is not obligated to ship any Products beyond the quantity contained in any firm release that Seller has accepted. The seller is not obligated to accept future orders, purchases, releases, or offers.

Limited Warranty

Seller warrants that it will convey the Products free and clear of all liens, security interests, and encumbrances created by, through, or under Seller. Additionally, Seller warrants that, at the time of delivery and with proper dilution as determined by Seller, the Products will:

1. Conform to mutually agreed-upon written specifications or other descriptions.
2. Be free from substantial defects in material and workmanship

In the event of a breach of the above warranties (the “Warranties”), Seller will, at its option and as its sole liability and Purchaser’s sole remedy, either:

• Replace the non-conforming Product, or
• Credit Purchaser’s account for the non-conforming Product.

These remedies are subject to the following conditions:

1. Notification: Seller must be promptly notified in writing upon discovering the non-conformity, with a detailed explanation of any alleged deficiencies.
2. Investigation: Seller must be given a reasonable opportunity to investigate all claims.
3. Examination: Seller’s examination of the Product must confirm the alleged deficiencies and verify that they were not caused by improper dilution, accident, misuse, neglect, unauthorized alteration, or improper testing.

No Products may be returned to Seller until they have been inspected and approved by Seller and the Purchaser has received a written “Return Goods Authorization” from Seller. Except as provided herein, Seller will neither accept the return of Products nor be responsible for their destruction.

The Warranty against defects does not apply in the following cases:

• Improper Dilution: Purchaser’s failure to properly dilute the product under Seller’s written Product documentation.
• Inappropriate Use: Use of the Products with products not contemplated under the Product documentation.

Disclaimer of Further Warranties

EXCEPT AS OUTLINED IN SECTION 11 ABOVE, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).

Limitation of Liability and Remedies

SELLER SHALL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST SELLER, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION.

SELLER WILL NOT BE LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL SELLER’S LIABILITY UNDER THESE TERMS OR IN CONNECTION WITH THE SALE OF PRODUCTS EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS AS TO WHICH THE CLAIM IS MADE.

Technical Data

All physical properties, statements, and recommendations are based on the tests or experience Seller believes reliable, but they are not guaranteed.

Product Use

The purchaser is solely responsible for determining whether any Product fits a particular purpose and is suitable for the Purchaser’s application method. Accordingly, and due to the nature and manner of use of Seller’s Products, Seller is not responsible for the results or consequences of use, misuse, or application by anyone.

Taxes

Purchaser shall pay to Seller, in addition to the purchase price, the amount of all fees, duties, licenses, tariffs, license fees, and all sales, use, privilege, occupation, excise, or other taxes, federal, state, local or foreign, which Seller is required to pay or collect in connection with the Products sold to Purchaser. Failure by the Seller to collect any such fees or taxes shall not affect the Purchaser’s obligations hereunder and Purchaser shall fully defend, indemnify and hold harmless the Seller concerning such tax obligations.

Ownership of Intellectual Property and Use of Trademarks and Trade Names. 

All intellectual property disclosed or provided by Seller to Purchaser, including but not limited to drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents, and related applications (collectively, “Intellectual Property”), will remain the exclusive property of Seller. Purchaser must keep this Intellectual Property confidential and acknowledges that it has no claim to, nor ownership interest in, any of it.

Any such information, in whatever form, and any copies thereof, must be promptly returned to Seller upon written request. Purchaser further acknowledges that no license or rights are granted in respect of any Intellectual Property, except for the limited right to use the Products purchased from Seller. The sale of Products by Seller to Purchaser does not include any design, development, or related services associated with Seller’s Intellectual Property.

Purchaser agrees to the following terms regarding the use of Seller’s trademarks (collectively, “Trademarks”):

Restrictions on Use:

• Purchaser shall not use, directly or indirectly, in whole or in part, Seller’s name or any other trademark or trade name owned by Seller as part of Purchaser’s corporate or business name, or in connection with Purchaser’s business, unless authorized by Seller in writing.
• Purchaser shall not infringe upon, harm, or contest the validity of any Trademarks.

Authorized Use:

• Purchaser may use the Trademarks only in connection with the promotion or sale of Authorized Products according to the terms of the Agreement.
• Purchaser must reproduce the Trademarks exactly as specified by Seller and shall not combine them with any other trademarks or names.

Prohibitions:

• Purchaser shall not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation).
• Purchaser shall not use the Trademarks for products or purposes other than those specified in the Agreement.
• During or after the termination of the Agreement, Purchaser shall not use any trademark similar to the Trademarks in a way that could cause deception or confusion.

Cooperation and Termination:

• Purchaser shall cooperate reasonably with Seller in protecting, defending, or enforcing Seller’s rights to the Trademarks.
• If Purchaser ceases to be an authorized customer of Seller, Purchaser must immediately discontinue any use of Seller’s name or the Trademarks.

Confidential Information

All information furnished or made available by Seller to Purchaser in connection with these Terms or a Purchase Order shall be held in confidence by Purchaser. Purchaser agrees not to use or disclose such information to others, directly or indirectly, without Seller’s prior written consent.

The confidentiality obligations outlined above do not apply to information that:

• Public Domain: Was generally available to the public at the time of disclosure or becomes available to the public through no breach by Purchaser of any obligation herein.
• Prior Knowledge: Can be shown by written records to have been in Purchaser’s possession prior to disclosure by Seller.
• Third-Party Disclosure: This is legally made available to Purchaser by or through a third party with no direct or indirect confidentiality obligation to Seller regarding such information.

Infringement and Indemnification

Except as set forth below, Seller agrees to defend and indemnify Purchaser against any claims, costs, damages, liabilities, and expenses resulting from actual patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property rights, domestic or foreign, that may arise from the sale of Seller’s proprietary Product to Purchaser in connection with the Agreement (each, a “Claim”). This indemnification is provided under the following conditions:

• Notification: Purchaser must supply Seller with written notice of such Claim immediately after becoming aware.
• Cooperation: Purchaser must cooperate with Seller in the defense and settlement of the Claim.
• Authority: The purchaser must give the seller the right to defend and settle the claim at the seller’s expense.

If a suit or claim results in an injunction or order preventing Seller from supplying any part or Product under the Agreement, or if such a suit or claim would, in Seller’s reasonable opinion, otherwise hinder Seller’s ability to supply such parts or Products, Seller may take one or more of the following actions:

• Secure a License: Obtain an appropriate license to permit Seller to continue supplying the parts or Products.
• Modify the Product: Modify the part or Product to become non-infringing.
• Replace the Product: Replace the part or Product with a non-infringing but practically equivalent part or Product.
• Discontinue the Product: If the above actions are not feasible, Seller may, at its sole discretion, discontinue selling the part or Product without any further liability to Purchaser.

Notwithstanding the preceding, Seller shall have no liability or duty to defend and indemnify Purchaser against any Claim if the Claim arises from:

• Misuse of Products: Misuse of any part or Product, including Modification of, or damage to, any Seller-provided label. Affixing Seller-provided labels to any Product other than the one specified on Seller’s provided label.
• Combination with Other Products: Combination of any part or Product with any other part or product not supplied by Seller.
• Purchaser-Designed Products: Any part, Product, or process designed or specified by the Purchaser.

Force Majeure

Seller will not be responsible for failure to perform on time when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, pandemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products among itself and its purchasers in such manner as Seller, in its judgment, deems fair and equitable.

Audit

Neither Purchaser nor Purchaser representative may examine or audit Seller’s cost accounts, books, or records of any kind or any matter or any other data that Seller, in its sole discretion, considers confidential or proprietary.

Seller Employees

Seller sales employees do not have the training or authority to make legal representations or enter into any agreements, or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on Seller or such Seller employees.

Compliance

Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances, and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products, including import/export laws, labor laws, and anti-corruption laws.

Relationship of the Parties

Nothing in these Terms or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint ventures, or agents for one another or as authorizing either party to obligate the other in any manner.

Bankruptcy

If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.

Assignment; Binding Effect

No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or any Purchase Order may be made without Seller’s prior written consent. Any attempted assignment will be void. Seller may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.

Integration and Modification

The Agreement constitutes the entire agreement between Seller and Purchaser to the Products covered by the Agreement and supersedes any prior agreements, understandings, representations, and quotations to it. No modification hereof will be of any effect unless in writing and signed by the party to be bound thereby.

Waiver

In the event of any default by Purchaser, Seller may decline to ship Products. No failure of Seller to insist upon strict compliance by Purchaser with these Terms or to exercise any right accruing from any default of Purchaser shall impair Seller’s rights in case Purchaser’s default continues or in case of any subsequent default by Purchaser. The waiver by Seller of any breach by Purchaser of these Terms shall not be construed as a waiver of any other existing or future breach.

Limitation of Actions

Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these Terms by Seller shall be barred unless Purchaser commences within one (1) year from the accrual of such cause or action.

Litigation Costs

Suppose any litigation or arbitration is commenced between Seller and Purchaser concerning any provision of these Terms. In that case, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney’s fees in such litigation or arbitration, provided that if each party prevails in part, such payments shall be allocated in such manner as the court or arbitrator shall determine to be equitable given the relative merits and amounts of the parties’ claims.

Choice of Laws.

If the Seller is Located in the United States:

• Governing Law: Disputes arising from or related to the Agreement or the sale of any Products will be governed by and construed by the laws of Illinois, excluding its conflict of laws provisions and the United Nations Convention for the International Sale of Goods.
• Litigation Venue: Disputes will be litigated exclusively in state or federal courts located in Cook County, Illinois.
• Jury Trial Waiver: Buyer and Seller waive any right to a jury trial, agreeing that any dispute will be resolved solely by a court of competent jurisdiction.

If the Seller is Located Outside of the United States:

• Governing Law: Disputes arising from or related to the Agreement or the sale of any Products will be governed by and construed under the laws of Geneva, Switzerland, excluding its conflict of laws provisions and the United Nations Convention for the International Sale of Goods.
• Arbitration: Disputes will be finally resolved by a panel of three arbitrators under the Swiss Chambers’ Arbitration Institution.
• Judgment: The award rendered by the arbitrators may be entered by any court with jurisdiction.
• Arbitration Details: The place and language of the arbitration will be chosen by the Seller.
• Injunctive Relief: Either party may seek injunctive relief from the arbitrator until the arbitration award is rendered or the dispute is resolved.
• Finality: The arbitration award will be final and binding, with both parties waiving the right to appeal the decision to any court for modification or amendment.

Survival

Any provisions in the Agreement that extend beyond the termination or expiration of any sale of Products will remain in effect until fulfilled.

Severability

If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.

Location

Notwithstanding anything to the contrary contained herein, the following terms apply:

Liability

If the Seller is located outside of the United States, nothing in this Agreement shall exclude, limit, or restrict the liability of either party in respect of the following:

• Arising from negligence.
• Fraud or Fraudulent Misrepresentation.
• Gross Negligence and Willful Misconduct.
• Any limitation or exclusion that is not permitted by law.

Location

Seller shall be deemed “Located” in the country of Seller’s facility from which the applicable Products are shipped and performed.