TERMS AND CONDITIONS OF SALE
Effective date: 12/27/2024
These Online Terms and Conditions of Sale (these “Terms & Conditions” ) govern the online purchase of any paints, coatings, materials, and other goods and services (collectively, “Products” ) by you from ZYP Coatings, Inc. (together with its successors, affiliates and subsidiaries, collectively, “ZYP”) using any website, portal, or online service that posts or references these Terms & Conditions including those hosted on zypcoatings.com (collectively the “Website”). In these Terms & Conditions, “you” and “your” refers to the individual and/or entity who has ordered Products from ZYP (“we”, “us”, “our”).
PLEASE READ CAREFULLY — In these Terms & Conditions you will waive or give up certain legal rights and agree to certain limitations of liability and exclusions of damages. If you do not agree with these Terms & Conditions, do not order any Products using the Website.
- BINDING AGREEMENT. If you order any Products using the Website, or if you pick up, accept delivery of, pay for or use any Products that you have ordered from the Website, then you have agreed to accept and be legally bound by these Terms & Conditions and the Website Terms of Use. These Terms & Conditions, along with the provisions, if any, contained in the applicable ZYP order confirmation email, and our Website Terms of Use constitute the final, entire and exclusive agreement between you and ZYP concerning the sale of Products by ZYP to you. These Terms & Conditions, together with the Website Terms of Use, supersede all prior oral and written agreements and understandings (whether express or implied, including those implied by law or through usage of trade). In particular, no course of prior dealings between the parties and no usage of trade will be relevant in determining the meaning of this agreement. In the event of a conflict between the Terms & Conditions and the Website Terms of Use, any express terms of these Terms & Conditions will prevail with respect to Products (including, without limitation, sale and delivery). You acknowledge that the prices we have quoted are predicated on the enforceability of these Terms, that the price would be substantially higher if these Terms did not apply, and that you accept these Terms in exchange for such lower prices.
- AMENDMENTS AND CHANGES. We may supplement these Terms & Conditions by posting additional terms, such as Product-specific terms and terms of special offers, (“Additional Terms”) on the Website. In the event of a conflict between the Terms & Conditions and applicable Additional Terms, any express terms of the Additional Terms will prevail. Any attempted modification or amendment of these Terms & Conditions by you (whether by means of a purchase order or other form or document) is hereby rejected. No waiver, alteration or modification of these Terms & Conditions shall be binding on ZYP unless made in writing and signed by an authorized representative of ZYP. These Terms & Conditions and the Website Terms of Use are subject to prospective change by ZYP, in our sole discretion, except that the Terms & Conditions and Terms of Use posted on the Website at the time you place an order will govern the order in question. You agree that posting of revised versions on the Website is sufficient notice of any changes. You should review the Terms & Conditions and other Website terms, policies and notices prior to each time you purchase any Product that is available through the Website and your use of the Website will constitute your acceptance of and agreement to the then current version of the Terms & Conditions.
- PRODUCT ORDERS. Although we have many products in-stock, ZYP cannot guaranty that Products shown on the Website are available for immediate shipping or pickup. You agree that your order is an offer to buy, under these Terms & Conditions, all Products that you have selected, added to your cart, and that are listed in your online order. We reserve the right to reject any offer and our acceptance is subject to and conditioned upon your payment in full, fulfillment of any applicable legal requirements, your agreement to be legally bound by these Terms & Conditions, and our confirmation as set forth in the next section. We may choose not to accept any orders in our sole discretion. We require that all purchases of Products be made by individuals who are not minors and who can legally enter into binding contracts (typically persons 18 years of age or older, depending on where you live).
- ORDER CONFIRMATION AND CANCELLATION.
- (a) Confirmation. We will send you an order confirmation email after we have received your online order with your order number, a description of the Products you have ordered, and your shipping and billing addresses. Except as otherwise specified below, all online orders are final at the time your payment is accepted online and there are no returns or refunds.
- (b) Cancelation, Delivery Delays and Redelivery. You may request cancellation of an online order within 24 hours of placing the order. Although ZYP will attempt to accommodate your request, ZYP has sole discretion on whether to cancel the order. You agree that we may cancel any online order at any time, even if it has been accepted by ZYP and even if you have received an email order confirmation, if: (i) we believe that the order violates applicable law, including any law limiting the sale of certain products in defined jurisdictions; (ii) we discover an error related to your order or if we are not able to fill the order to the specifications (e.g., quantity) you have selected (in which case, we may contact you and offer an alternative, but are not obligated to do so except as required by applicable law); or (iii) if you have not picked up or scheduled delivery, or received delivery of the Product after the delivery attempt, if applicable, within fourteen (14) days after the date of your order. We will attempt to deliver or make available for pick up all Products within thirty (30) days of order confirmation, typically sooner.
- PRICES AND TAXES. All information regarding pricing and services is subject to change. ZYP reserves the right to make adjustments to pricing at any time, without notice, and for any reason, including, but not limited to, changing market conditions, unavailability, and errors in advertisements. Prices listed are net and do not include shipping charges, handling fees, taxes and/or duties or special crating requirements for export shipment, for which you shall be responsible and you agree to pay. The price charged for a Product, and applicable sales taxes (if located in Tennessee), will be the price and taxes in effect at the time your order is placed and will be specified during the checkout process and in your order confirmation e-mail. Taxes and shipping charges shown during the checkout process and in your order confirmation email are estimated. Due to product variables that impact carrier shipping estimates, such as flammability or compressed gas (i.e. aerosol cans; non-water-based paints), you may be required to pay additional shipping fees to process the order once ZYP verifies the shipping information. If this is required, you will be informed of the charges and be given an opportunity to cancel the order.
Price increases will only apply to orders placed after such changes are posted on the Website. As permitted by applicable law, we are not responsible for any pricing, typographical, photographical or other errors in our Website information. If we discover errors, we may contact you and give you the option to cancel or revise your order, and we reserve the right to cancel any orders arising from any such errors. Payment for the Products shall be made in U.S. dollars.
- TERMS OF PAYMENT. Your credit card or, in the case of customers who we have been approved for credit terms, account with us will be authorized for the full amount of the sale when the online checkout process is completed. Orders will be charged to your credit card when shipped. If you timely cancel an order as set forth in Section 4(b), or we cancel your order for any reason other than as set forth in Section 4(b) or otherwise provided in applicable Additional Terms, your account will be refunded or the credit hold removed, as applicable. It may take several days before the credit hold is released on, or a refund is posted to, your account. ZYP shall not be liable for any costs or other liabilities associated with such a continuing hold. You acknowledge that it is possible that the final amount charged to your account may be more or less than the amount originally authorized at the time the online checkout process is completed. This may occur, for example, if the shipping cost is more or less than the estimated amount shown online.
- DELIVERY, TITLE AND RISK OF LOSS. Unless we otherwise agree in writing to a particular carrier, shipments will be by a carrier and by the route selected by us; the carrier will act as your agent; delivery by us to such carrier will constitute delivery to you; and all shipments under your order will be made F.O.B. our shipping point (Oak Ridge, Tennessee, USA), at which time title and all risk of loss will pass to you, provided that we will retain, and you hereby grant to us, a security interest in any products we ship to you until the full purchase price is paid by you. Under no circumstances will we accept shipping terms other than FOB Oak Ridge, TN, USA. You will pay all freight charges and assume the risks of transportation, including delay, damage, and loss unless we otherwise agree in writing. The promised delivery date is our best estimate possible of when we will ship the products.
For shipping (including freight) billed to your account or otherwise arranged by you and in-person delivery, title and risk of loss for the Products pass to you upon our transfer of the Products to you or your selected carrier.
The time of delivery is not of the essence, and ZYP shall not be liable or responsible for any costs, charges, expenses, damages or for any penalty, liquidated or otherwise, for late or delayed delivery. All delivery dates, including any delivery dates specified in your order confirmation email, are approximate and are not guaranteed.
- PRODUCTS RETURNED FOR CREDIT. Except for special products that are manufactured specifically for an order (this will be noted in your order confirmation), ZYP will accept a return of the Products ordered online for a refund of the purchase price less a twenty percent (20%) restocking fee, provided any such return is made within thirty (30) days of the date of your online order as reflected in the ZYP automated order tracking system and provided such Products are returned in their original, unopened condition together with proof of purchase. ZYP has the sole discretion to determine whether the Products are in returnable condition and whether, in some cases, the re-stocking fee can be waived.
It is your responsibility to make arrangements for the return of Products that were delivered, and you acknowledge and agree that ZYP will not reimburse you for any expenses associated with the return of a delivery order. YOU ACKNOWLEDGE AND AGREE THAT PRODUCTS REQUIRING SPECIAL MANUFACTURING (I.E. MANUFACTURED FOR YOUR PARTICULAR ORDER) AND/OR CUSTOM ORDER PRODUCTS CANNOT BE RETURNED OR REFUNDED. Refunds are ordinarily processed by ZYP within seven (7) business days of delivery of the returned products to our business location. However, it may take longer for the refund to be processed by your bank, credit card company, or other financial institution. ZYP shall not be liable for any costs or other liabilities associated with any delay by your bank, credit card company, or other financial institution in processing your refund. Refunds will be issued to/in the original form of payment.
- LIMITED WARRANTIES; DISCLAIMERS.
ZYP DOES NOT OFFER ANY WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
All products are for industrial/commercial use only. Users should independently determine suitability for their particular use.
- LIMITATION OF LIABILITY.
YOUR USE OF THE WEBSITE AND ANY PRODUCT PURCHASED THROUGH THIS WEBSITE IS ENTIRELY AT YOUR OWN RISK. IN NO EVENT SHALL ZYP BE LIABLE TO YOU, OR ANYONE CLAIMING THROUGH OR ON BEHALF OF YOU, FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECULATIVE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DIRECT OR INDIRECT LOST PROFITS, LOSS OF USE, PENALTIES OR DEMURRAGE, WHETHER OR NOT BASED UPON ZYP’s NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF ZYP IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. AS PERMITTED BY APPLICABLE LAW, ZYP’S SOLE LIABILITY, AND THE EXCLUSIVE REMEDY THAT YOU OR ANYONE CLAIMING THROUGH OR ON BEHALF OF YOU WILL HAVE, FOR ANY CAUSE OF ACTION ARISING IN CONNECTION WITH THE PRODUCTS AND/OR THE USE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO, THE RECOMMENDATION, PURCHASE, TRANSPORTATION, STORAGE, HANDLING, OR USE OF THE PRODUCTS, IS EXPRESSLY LIMITED TO, AT ZYP’S OPTION, REPLACEMENT OF THE DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE THEREOF.
- FORCE MAJEURE. ZYP will not be liable or deemed to be in breach of these Terms & Conditions for any delay or failure to perform any or all of its obligations by reason of fire, explosion, accidents, pandemic, hurricanes, tornados, flood, unusually severe or abnormal weather, war or threat of war, riots or civil commotion, acts of terrorism, acts of any governmental authority or agent, interruption of or delay in transportation of Products, labor disputes, shortage of materials or raw materials, inability to obtain raw materials at a reasonable price, acts of God or any other circumstance or event beyond the reasonable control of ZYP. If we are rendered unable by force majeure to carry out any or all of our obligations under these Terms & Conditions, we will use reasonable efforts to give notice to you by email, and upon the giving of such notice the obligations of ZYP shall be suspended or terminated as may be necessary under the circumstances.
- PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. As between you and ZYP, all patents and other intellectual property rights arising out of or related to (a) the Products and their formulation and manufacture, and (b) this website and its features, functionality and tools are the sole and exclusive property of ZYP. Except for the limited, revocable, non-exclusive right to view, copy, print, and download materials on the Website for personal, noncommercial, informational use only, you do not, by virtue of your purchase or possession of the Products or your use of the Website, receive any intellectual property ownership interest or any license rights with respect to the Products or this website. In particular and without limitation of the foregoing, you do not, by virtue of your purchase or possession of the Products, receive any right or license (express or implied) to make or have made the Products or to use any trademark or trade name associated with ZYP or the Products. To the fullest extent permitted by applicable law, you agree not to analyze or otherwise examine, or allow to be analyzed or examined, any of the Products for the purpose of reverse engineering the formulations used to make the Products or for the purpose of creating a product that competes with any of the Products. You agree not to repackage the Products or remove any trademark or copyright notice from the Products. You further agree not to use or seek to register any trademark, trade name or domain name which is identical or confusingly similar to any trademark, trade name or domain name that ZYP owns anywhere in the world. We may provide technical assistance and information to you in connection with the sale of our products but such technical assistance and information are furnished for your accommodation and you are solely responsible for your business, including the application of such information, using your own technical expertise and know-how.
- PRODUCT MODIFICATIONS. Except to the extent expressly stated in a written agreement entered into between ZYP and you, all Products that are sold to you using the Website and our online store are sold for end-use by you and, as permitted by applicable law, may not be resold, relabeled, or repackaged. Unless otherwise agreed, we reserve the right to change the formulation or method of manufacture of the Products from time to time in our sole discretion and we will have no obligation to notify you before or after any such change in the Products.
- COMMUNICATIONS AND NOTICES.
- (a) Customer Service and Notices. Customer Service can be contacted at 1-865-482-5717. Legal notices must be delivered to us by you as set forth in subsection (e) below and not to our customer service representatives. ZYP may provide notice to you under these Terms & Conditions by any reasonable method, which you agree includes: (a) sending an email to you; or (b) with respect to any prospective changes to these Terms & Conditions by posting to the ZYP website.
- (b) Email Communications. You agree that we may send emails to you using the e-mail address that you used to place your order for Products. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current. We assume no responsibility for issues resulting from e-mail notification failures. You consent to receiving promotional messages to the emails you provide to us. You can unsubscribe to our promotional emails by following the instructions on those emails; provided, however, you may receive transactional emails after unsubscribing (e.g., emails responding to an inquiry or related to your order).
- (c) Mail Delivery. You may provide notice to ZYP under these Terms & Conditions by personal delivery, overnight courier or registered or certified mail to Legal Counsel, ZYP Coatings, Inc., 120 Valley Ct., Oak Ridge, TN 37830. We may update the address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective upon receipt by us. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- INDEMNIFICATION. Subject to applicable law and the express terms of these Terms & Conditions, after you accept delivery of a Product, you shall be solely responsible for the proper transportation, handling, exportation, storage, processing, alteration, use, application, and/or disposal of such Product. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold ZYP harmless from and against any and all actual, alleged, or threatened claims, liabilities, and costs and expenses (including attorneys’ fees) arising out of or resulting from (a) any transportation, handling, exportation, storage, processing, alteration, use, application and/or disposal of a Product by your and/or your applicator; and (b) any actual or alleged breach by you of, or any inaccuracy in, any representation, warranty, covenant or undertaking made by you in these Terms & Conditions.
- COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules and regulations, including, without limitation, all, laws, rules and regulations in any way relating to your purchase, ownership, transportation, export, receipt, handling, storage, processing, alteration, use, application, and disposal of the Products once the Products have been delivered to you.
- RESPONSIBLE PRACTICES. You acknowledge that ZYP includes with every shipment a Safety Data Sheet that includes information about product ingredient composition, health, safety, fire and environmental hazards and warnings, first aid and accidental spill measures, handling, storage, protection and exposure guidelines. You agree (i) to receive this information in paper or electronic form and to familiarize yourself with all such information; (ii) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Products, including, without limitation, special care and practices relating to your use of the Products; (iii) instruct your employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the Products (including, without limitation, information contained in ZYP’s most current Safety Data Sheets or Product Data Sheets); and (iv) comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property or the environment. You represent and warrant to ZYP that you are a professional user experienced and knowledgeable regarding how to properly and safely handle, store, dispose of, and use such Products. We may provide technical assistance and information to you in connection with the sale of our products but such technical assistance and information are furnished for your accommodation and you are solely responsible for your business, including the application of such information, using your own technical expertise and know-how.
- APPLICABLE LAW / VENUE. We both agree that these Terms & Conditions constitute a written agreement executed by both you and ZYP under applicable law. Any disputes or controversy between you and ZYP shall be governed by and construed in accordance with the laws of the State of Tennessee without regard to the conflicts of law principles of such State. Any such actions shall be brought only in the state or federal courts sitting in Knox or Anderson County, Tennessee. The parties agree that those courts shall have exclusive jurisdiction over the parties in connection with any such lawsuit and venue shall be appropriate in those courts.
- OTHER TERMS
- (a) Assignment. You may not assign any rights or delegate any obligations under these Terms & Conditions without ZYP’s prior written consent. Any assignment or delegation, or attempted assignment or delegation, in contravention of the foregoing shall be null and void. ZYP may assign or delegate any of its rights or obligations hereunder. If any provision of these Terms & Conditions is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
- (b) Severability. If any provision of these Terms & Conditions, including those relating to Dispute Resolution, is declared invalid or unenforceable for any reason other than over-breadth, the offending provision shall be severed, and the remainder of the Terms & Conditions will be deemed to be binding and enforceable will be modified so as to maintain the essential benefits of the bargain between the parties hereto to the maximum extent possible, consistent with law and public policy.
- (c) Government Contracts. If the Products purchased by you are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding on ZYP unless specifically agreed to by our authorized representative in writing.
- (d) No Waiver. The failure of ZYP to enforce any of the provisions of these Terms & Conditions will not be construed to be a waiver of any provisions hereunder nor will any such failure prejudice the right of ZYP to take any action in the future. Any waiver must be made in writing and signed by an authorized representative of ZYP. These Terms & Conditions do not and are not intended to confer any rights or remedies upon any person other than you.