These Online Terms and Conditions of Sale (these “Terms & Conditions”) govern the online purchase of any epoxy, finishes, coatings, tools, applicators, supplies, and other goods and services (collectively, “Products”) by you from New Image Surface Coatings using any website, portal, or online service that posts these Terms & Conditions (collectively the “Website”). In these Terms & Conditions, “you” and “your” refers to the individual or entity who has ordered products from New Image Surface Coatings (“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. These Terms & Conditions require you to use arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. If you do not agree with these Terms & Conditions, do not order any Products using the Website.
AMENDMENTS AND CHANGES.
Not all Products listed on the Website may be available for purchase in all jurisdictions. In addition, New Image Surface Coatings cannot guaranty that Products shown on the Website as in stock are available for immediate shipping at all times. Applicable law in some jurisdictions limits the quantities of some Products that you may purchase or requires that you provide proof of identity or age in order to make a purchase. If so, such requirements are a condition of purchase and/or delivery. 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 (e.g., age verification), 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 reside).
ORDER CONFIRMATION AND CANCELLATION.
(a) 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 e-commerce orders are final at the time your payment is accepted online and there are no returns or refunds.
(b) Cancelation, Delivery Delays and Redelivery. Orders and custom orders cannot be cancelled by you once the order is placed online. You agree that we may cancel any online order at any time, even if it has been accepted by New Image Surface Coatings and even if you have received an email order confirmation, if: (i) we believe that the order violates applicable law, including any law that requires proof of identity or age in order to purchase a particular Product or laws 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, including E-Commerce Orders, to the specifications (e.g., quantity, size, and color) 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. Refunds and cancelation of credit holds for canceled orders will be as set forth in Section 6 and 7 or any applicable Additional Terms.
(c) Custom Orders. Custom Orders cannot be cancelled by you. At our discretion we may: (i) cancel all or any part of your online order; (ii) charge your account for the full amount of the Products that are Custom Order (including all taxes and fees associated with such Custom Order); and (iii) dispose of such Custom Order Products as we deem fit. You agree to pay for all Products that are Custom Orders in full in accordance with these Terms & Conditions.
PRICES AND TAXES.
The price charged for a Product, and applicable taxes, 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 shown during the checkout process and in your order confirmation email will be calculated based upon your selected delivery location. This also applies to tax exemptions or other circumstances affecting the existence of tax (e.g., tax holidays) applicable to your order, which may change between the time of placement of your order and the time of completion of your delivered order. Tax exemptions may not apply if the sales transaction is not completed on the day that is designated for tax exemption. Price increases will only apply to orders placed after such changes are posted on the Website. All prices posted on the Website are subject to change without notice. Prices and Product descriptions are subject to correction for error. 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. For epoxy liquid Products displayed on the Website, the Product size listed on the website is the size of the Product container. The actual volume of the Product purchased may be smaller than the Product size that is listed on the Website so that room is left in the container to add tint or other fillers. Payment for the Products shall be made in U.S. dollars. Prior to submitting your payment information, you will have the opportunity to review Product prices and taxes. If we are unable to display taxes during the online checkout process, you will be notified of this during checkout, and you will receive a final invoice including all taxes and fees upon receipt of your delivered Products.
TERMS OF PAYMENT.
Your credit card, or, for professional customers, your New Image Surface Coatings credit account (“Account”) 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), 4(c), 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. New Image Surface Coatings shall not be liable for any costs or other liabilities associated with such a continuing hold.
DELIVERY, TITLE AND RISK OF LOSS.
Orders will be shipped via USPS, UPS, or FedEx and title and risk of loss shall pass to you upon our placing of the Products with the carrier. Title and risk of loss of the Products shall pass upon delivery to the address you specified, regardless of whether you receive the delivery in-person, or the Products are left at your delivery address. The time of delivery is not of the essence, and New Image Surface Coatings will 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.
New Image Surface Coatings will accept a return of the Products ordered online for a refund of the purchase price, provided any such return is made within thirty (30) days of the date of your online order, as reflected on the order confirmation notice, and provided such Products are returned in their original, unopened condition together with proof of purchase. Bundled items need to be returned with all the components. It is your responsibility to arrange for the return of products that were delivered, and you acknowledge and agree that New Image Surface Coatings will not reimburse you for any expenses associated with the return of an order.
Refunds are ordinarily processed by New Image Surface Coatings within three (3) business days of acceptance of the returned products. However, it may take longer for the refund to be processed by your bank, credit card company, or other financial institution. New Image Surface Coatings is not 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.
New Image Surface Coatings warrants to you that, as of the date on which your Products are delivered, and for a period of ninety (90) days thereafter, those Products that are manufactured by New Image Surface Coatings shall (i) conform to New Image Surface Coatings’ then-current quality control specifications for manufacturing such Products; and (ii) be subject to any label warranty affixed to the container or packaging of such Products. As permitted by applicable law, the above warranties extend only to you and not to any other individual or entity. For Products that are not manufactured by New Image Surface Coatings, the original manufacturer’s warranty, if any, shall apply to the extent assignable by New Image Surface Coatings. As permitted by applicable law, except for an express written limited warranty signed by an authorized representative of New Image Surface Coatings, we make no other warranties, either in writing or orally, including on the Website or in any marketing brochure or promotional literature. SUBJECT TO APPLICABLE LAW, NEW IMAGE SURFACE COATINGS SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. As permitted by applicable law, the warranties set forth in this provision cease to be effective if you fail to use the Products sold hereunder in a safe and reasonable manner and in strict compliance with all written instructions and/or specifications from New Image Surface Coatings or the third-party manufacturer of such Products.
Replacement Products. As permitted by applicable law, the obligation of New Image Surface Coatings under the warranties in this section is limited, at our option, to the replacement of defective Products or the refund of the purchase price for such defective Products. Any replacement Products will be shipped within (10) ten business days as specified in your original order confirmation email, provided that (i) prompt notice of any defect is given by you to us within the warranty period specified above, and (ii) upon your return of the defective Products an inspection thereof reveals to our satisfaction that your claim is valid under the terms of this warranty. It is your responsibility to arrange for the return of defective Products and for the delivery of any replacement Products, which may be subject to an additional delivery fee.
LIMITATION OF LIABILITY.
OUR USE OF THE WEBSITE AND ANY PRODUCT PURCHASED THROUGH THIS WEBSITE IS ENTIRELY AT YOUR OWN RISK. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES, IN NO EVENT SHALL NEW IMAGE SURFACE COATINGS 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 NEW IMAGE SURFACE COATINGS’ NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF NEW IMAGE SURFACE COATINGS IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO CLAIMS BASED ON PERSONAL INJURIES AND AS PERMITTED BY APPLICABLE LAW, NEW IMAGE SURFACE COATINGS’ 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 NEW IMAGE SURFACE COATINGS’ OPTION, REPLACEMENT OF THE DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE THEREOF.
NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (I) NEW IMAGE SURFACE COATINGS’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY NEW IMAGE SURFACE COATINGS PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (II) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST NEW IMAGE SURFACE COATINGS PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
FORCE MAJEURE. New Image Surface Coatings 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 New Image Surface Coatings. 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 New Image Surface Coatings shall be suspended or terminated as may be necessary under the circumstances.
PRIVACY AND WEBSITE TERMS.
Except to the extent expressly stated in a written agreement entered into between New Image Surface Coatings 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. 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.
- Customer Service and Notices. Customer Service can be contacted at 1-855-DO-EPOXY (1-855-363-7699). Legal notices must be delivered to us by you as set forth in subsection (e) below and not to our customer service representatives. New Image Surface Coatings 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 New Image Surface Coatings website.
- Telephone Communications. Your telephone communications with New Image Surface Coatings, including calls with our customer service representatives, sales representatives, or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing us with a mobile or other phone number as part of your online registration or during a service call, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
- Email Communications. You agree that we may send emails to you using the e-mail address that you used to create your New Image Surface Coatings online account or the address 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)
- Mail Delivery. You may provide notice to New Image Surface Coatings under these Terms & Conditions by registered or certified mail to E-Business Manager, PO Box 1312, LUCASVILLE, OHIO 45648. We may update the address for notices to us by posting a notice on the Website. Notices provided will be effective three business days after they are sent.
Subject to applicable law and the express terms of these Terms & Conditions or any applicable Additional Terms, 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 New Image Surface Coatings 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.
You acknowledge that (a) the Products are subject to various federal, state, territory, municipal and local laws, rules and regulations, (b) the Products will be delivered to the address provided by you, and (c) the Products are labeled for end-use within the jurisdiction of your U.S. delivery address. You may not export or otherwise ship, use, or apply the Products outside of the jurisdiction of that delivery address. The Products are intended for your use only, and as permitted by applicable law, are not for resale.
COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules and regulations, including, without limitation, all, laws, rules and regulations, including VOC use and sales restrictions, in any way relating to your purchase, ownership, transportation, receipt, handling, storage, processing, alteration, use, application, and disposal of the Products once you have accepted delivery of the Products.
Any arbitration hearing will be conducted in Lucasville, Ohio by a single arbitrator or as otherwise provided by the Consumer Arbitration Rules, if applicable. The award of the arbitrator will be final and binding on the parties, and judgment upon such award may be entered in any court of competent jurisdiction. More information about the arbitration process is available at www.adr.org. This provision constitutes your and New Image Surface Coatings’ written agreement for resolving disputes, including the agreement to arbitrate Disputes under the Federal Arbitration Act (“Dispute Agreement”), and is governed by the Federal Arbitration Act. If you are a consumer, you may opt-out of mandatory arbitration for each applicable Product sale transaction by sending us written notice (as set forth in Section 15(e)) with a copy of the purchase confirmation email and a request to opt-out of arbitration for that transaction within five (5) business days of receipt of the purchase confirmation.
- Applicable Law in Arbitration. Claims arising under federal law shall be determined in accordance with federal law. Claims arising under state law shall be decided in accordance with Ohio substantive laws, without regard to conflict-of-laws principles.
- Confidentiality. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
- Arbitration Fees and Costs. Each party shall pay its own deposition, witness, expert, and attorneys’ fees and other expenses to the same extent as if the matter were being heard in court. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees and costs, or if there is a written agreement providing for attorneys’ fees and costs to be awarded to the prevailing party, the Arbitrator may award reasonable attorneys’ fees in accordance with the applicable statute or written agreement. The Arbitrator shall resolve any dispute as to the reasonableness of any fees or costs awarded under this paragraph.
- Class Action Waiver. Notwithstanding any AAA rules to the contrary, the parties agree to arbitrate Non-IP Disputes solely on an individual basis. This agreement does not permit class arbitration. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Waiver of Jury Trial and Appellate Review. The parties understand and fully agree that by entering into this agreement to arbitrate, they are giving up their constitutional right to have a trial by jury in connection with any Non-IP Dispute, and they are giving up their normal rights of appeal following the rendering of the arbitrator’s award, except as applicable law provides for judicial review of arbitration proceedings.
We both agree that these Terms & Conditions constitute a written agreement executed by both you and New Image Surface Coatings under applicable law. These Terms & Conditions shall be governed by the laws of the State of Ohio, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- Assignment. You may not assign any rights or delegate any obligations under these Terms & Conditions without New Image Surface Coatings’ prior written consent. Any assignment or delegation, or attempted assignment or delegation, in contravention of the foregoing shall be null and void. New Image Surface Coatings 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.
- 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.
- 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 New Image Surface Coatings unless specifically agreed to by our authorized representative in writing.
- No Waiver. The failure of New Image Surface Coatings 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 New Image Surface Coatings to take any action in the future. Any waiver must be made in writing and signed by an authorized representative of New Image Surface Coatings. These Terms & Conditions do not and are not intended to confer any rights or remedies upon any person other than you.