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TERMS OF SERVICE

Updated February 2024

These Terms and Conditions (the “Agreement”) are entered into between you (the “Customer”) and Winona Powder Coating, Inc. (“Winona”).  Customer and Winona are each a “Party” and collectively the “Parties.” 

WHEREAS, Winona provides coating services (the “Services”), as further detailed in an applicable Purchase Order (a “PO”), on products provided by Customer (the “Products”), then ships the Products back to Customer or third-parties specified by Customer (the “End User”); and 

WHEREAS, Customer would like to utilize Winona’s Services for its Products. 

NOW THEREFORE, in consideration of the foregoing premises, Customer agrees to the following: 

1. Compliance with Agreement.  By requesting Services, submitting Products, accepting a quote for Services, or executing a PO, Customer explicitly agrees to be bound by the terms of this Agreement. 

2. Scope. This Agreement governs the relationship between Winona and Customer, and no additional documentation or order details shall supersede or alter this Agreement.

3. Processes.

  1. The Powder-Coat process includes a five (5) stage wash iron phosphate pretreatment, drying, coating, curing, and packaging, with specifications of an entire coat at 2 – 3 Mils Nominal. 
  2. The Process E-Coat includes a thirteen (13) stage wash zinc phosphate pretreatment, drying, coating, curing, and packaging, with specifications of an entire coat at .8 – 1.2 Mils Nominal.  
  3. Processing loss expected to be less than one percent (1%) FOB. 

4. Special Powder Purchases.  If Customer requests the use of a non-standard color powder (a “Special Powder”), Winona shall purchase and maintain inventory levels of the Special Powder for Customer.  Customer shall pay Winona for any unused Special Powder, in the amount of the actual purchase price of the Special Powder multiplied by one-point-two (1.2), to be invoiced at the earlier of: (a) six (6) months after the last use of the Special Powder for Customer; or (b) upon notification from Customer that no more Special Powder will be required by Customer.  Following payment for the remaining Special Powder, Winona shall ship the remaining Special Powder to Customer upon the Customer’s written request.  Notwithstanding the preceding, if Customer does not request the shipment of the remaining Special Powder in writing within ninety (90) days of payment, Winona may dispose or retain the remaining Special Powder with no further obligations to Customer. 

 

5. Standard Turn Time and Emergency Set Up.  Standard turnaround times (“Turn Times”) fluctuate throughout the year, and unless expressly agreed to between the Parties, Winona cannot guaranty any particular Turn Times at any particular point of the year.  For an estimate of Turn Times, customer service will verify the Turn Times upon the issuance of a PO.  Emergency set up is available for six-hundred dollars ($600) in addition to regular coating charges. 

 

6. Orders; Modification and Cancellation.  Orders are considered complete when both the initial scope of Services and price are agreed between Winona and Customer, which may be set out in a PO, and the Product arrives at Winona’s facilities.  All orders are subject to this Agreement. 

 

 After an order is made, Customer may not cancel or modify such order in whole or in part without Winona’s prior written consent, to be given or denied in Winona’s sole discretion.  Winona may condition modification to an order on an adjustment of price or other terms.  Winona may change the pricing for Services from what was originally quoted to Customer upon notice to Customer.  If Winona authorizes a cancellation of an order, Customer shall reimburse Winona for all of its costs and damages in connection with the order and its cancellation, including without limitation, raw materials purchased by Winona to fulfill the order, time and labor expended by Winona in partial performance of the order, lost profits that were anticipated through the fulfillment of the order, and any other expenses or losses incurred by Winona related to the cancelled order.  

 

7. Invoicing.  Following credit approval, all invoices are due net thirty (30) from the invoice date.  Customer shall receive a two percent (2%) discount if payment is received within ten (10) days from invoice date.  Prior to credit approval, all payments are due cash on delivery.  Pricing for Services is set out in the applicable PO. 

 

8. Racking.  Unless otherwise agreed to by the Parties in writing, all racking used in the provision of the Services is owned by Winona, regardless of whether or not Customer has been charged for the upfront expense of building the racking. 

 

9. Representations of Customer.  Customer represents and warrants the following: (a) no silicone or any derivative thereof (including, but not limited to, WD-40 or similar products) was used during the manufacturing of the Products; (b) all Products are free of rust unless Customer provided notice of the rust to Winona (including which specific Products may have rust) and has received the prior written approval of Winona to submit such Products; (c) any laser oxidation on the edges of the Products has been removed; (d) Winona has been notified in writing of any adhesive or plastic on Products prior to submitting such Products to Winona; (e) this Agreement does not make Winona a party to any Tier I Automotive Purchase Agreement; (f) Customer has good and marketable title to the Products and has the requisite authority to authorize the Services for the Products; (g) neither the Products or the requested Services violate, or will cause any violation of, any third-party intellectual property rights; and (h) Customer has made Winona aware of any statutory or regulatory requirements related to the Products.  In addition to any other remedies available in this Agreement, Customer shall be liable to Winona for any damages related to or resulting from any costs, downtime, lost profits, or other expenses that occur due to a failure of the Products to be in the condition described in this Section 9. 

 

10. Drawings, Plans, and Specifications.  Winona shall be entitled to rely upon any drawing, plans, and specifications which were provided by Customer.  Customer represents that any drawings, plans, and specifications meet Customer’s needs and do not infringe on any third party’s intellectual property, including without limitation patents, copyrights, trademark, or otherwise legally protected designs. Customer shall indemnify and hold Winona harmless for any claims or suit related to any violation of intellectual property rights associated with Winona’s relationship with Customer. 
 
11. Title to Products.  The Parties acknowledge that title to the Products never vests in Winona and that Winona is acting as a bailee for the sole benefit of Customer, as bailor. 

 

12. Compliance with Laws and Waiver of Liability.  Customer or End User is solely responsible for using the Products in a manner that complies with all applicable laws and regulations.  CUSTOMER ACKNOWLEDGES THAT WINONA SHALL HAVE NO LIABILITY RELATING TO THE CUSTOMER’S OR END USER’S USE OF THE PRODUCTS.  CUSTOMER EXPRESSLY RELEASES, WAIVES, AND DISCHARGES WINONA, ITS OFFICERS, EMPLOYEES, AND AGENTS FROM ANY LIABILITY RESULTING IN PERSONAL INJURY (INCLUDING DEATH), ACCIDENT, PROPERTY LOSS, VIOLATION OF LAWS, AND DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY MANNER.   

 

13. Indemnification.  Customer shall indemnify, defend, and hold harmless Winona for any damages, losses, liabilities, costs, and expenses (including attorneys’ fees) resulting from: (a) any claim brought relating to the use, or inability to use, the Products; (b) the acts or omissions of Customer or End Users; and (c) any breach of this Agreement, including, but not limited to, a breach of any representations, by Customer. 

 

14. Warranty and Disclaimer of Warranties. In lieu of all warranties, express or implied, Winona warrants that Products will be free from any defects due to the Services for a period of one (1) year from the date the Products were shipped back to the Customer or End User.  If Winona breaches the foregoing warranty, and Customer provides written notice of a breach of this warranty to Winona within fifteen (15) days of the receipt of the Products by the Customer or End User, then Winona shall replace the quantity of the coating that is proved to be defective due to the breach of Winona’s warranty.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 14 OF THIS AGREEMENT, WINONA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ALLEGED TO ARISE AS A RESULT OF CUSTOM AND USAGE; AND NEITHER ASSUMES NOR ACCEPTS ANY LIABILITY TO CUSTOMER, ANY END USER, OR OTHERS WITH RESPECT TO THE QUALITY OR SUFFICIENCY OF THE SERVICES OR PRODUCTS, OR ANY RESULTS TO BE ACHIEVED BY THE USE OF THE PRODUCTS.  BEFORE ENTERING INTO THIS AGREEMENT, CUSTOMER SHALL DETERMINE THE SUITABILITY OF THE PRODUCTS FOR CUSTOMER’S INTENDED USE (INCLUDING THE SUITABILITY OF THE PRODUCTS FOLLOWING THE PROVISION OF THE SERVICES) AND CUSTOMER ASSUMES ALL RISK AND LIABILITY WHATSOEVER IN CONNECTION WITH THE USE OF THE PRODUCTS BY THE CUSTOMER OR END USER. 

 

15. Limitations of Liability.  IN NO EVENT WILL WINONA BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE SERVICES OR THE PRODUCTS (INCLUDING DAMAGES RELATED TO DOWNTIME OF CUSTOMER), EVEN IF WINONA KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.  WINONA’S TOTAL CUMULATIVE LIABILITY ARISING FROM THIS AGREEMENT, THE SERVICES, AND THE PRODUCTS WILL BE LIMITED TO THE ACTUAL AMOUNT CUSTOMER PAID FOR THE COST OF COATING AND SERVICES PURSUANT TO THE SPECIFIC PURCHASE ORDER (EXCLUSIVE OF THE COST OF MATERIALS) FROM WHICH THE LIABILITY ARISES.  CUSTOMER ACKNOWLEDGES THAT THESE TERMS REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT WINONA WOULD NOT AGREE TO PROVIDE THE SERVICES TO THE CUSTOMER WITHOUT THESE LIMITATIONS OF LIABILITY. 

 

16. Governing Law and Venue.  This Agreement will be interpreted in accordance with the laws of the State of Indiana, without regard to its conflict-of-laws principles that would require the application of the law of a different jurisdiction.  Unless this Agreement expressly provides to the contrary, any claim, dispute, or controversy arising out of or relating to this Agreement, including, without limitation, any action or claim based on tort, contract, or statute, or concerning the interpretation, effect, termination, validity, performance, or breach of this Agreement shall be resolved through a final and binding arbitration before a single arbitrator pursuant to the substantive rules (but not the procedural rules) of the American Arbitration Association (“AAA”) regarding commercial or business disputes.  For clarity, the Parties will not be required to use a AAA arbitrator or pay the fees associated with AAA arbitration.  The arbitration hearing shall be held in Kosciusko County, Indiana.  The cost of the arbitrator shall be split evenly between the Parties, but each Party shall bear its own attorneys’ fees.   

 

Notwithstanding the preceding language of this Section 16,  Winona shall have the right to bring any claims for collections against Customer arising from this Agreement, the PO, the Services, or the Products, in a state court of competent jurisdiction in Kosciusko County, Indiana.  If Winona prevails in a collection claim, Customer shall pay any reasonable costs of collection incurred by Winona including, but not limited to, reasonable attorneys’ fees and costs, not to exceed the amount allowed by any applicable statute. Winona and Customer agree that this Agreement is for the provision of services, and not for the sale of goods, and that the Uniform Commercial Code, as codified by the state in which the Services are provided or delivered, shall not apply.  CUSTOMER SHALL NOT INITIATE OR JOIN ANY CLASS ACTION AGAINST WINONA.  

 

17. Taxes.  In addition to the agreed purchase price for Services, Customer is responsible for all taxes arising from the Services, excluding taxes based on Winona’s net income. 

 

18. Entire Agreement.   This Agreement, in conjunction with the applicable PO, is the complete and exclusive statement of the agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior oral and written proposals, representations, or other communications related to the subject matter in this Agreement.  There are no third-party beneficiaries to this Agreement.  WINONA REJECTS ANY TERMS OR CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY, OR CHANGE IN ANY WAY ANY PROVISION OF THIS AGREEMENT, OR OTHERWISE ATTEMPT TO SUSPEND, CONTRADICT, OR ADD TO ANY TERM OR CONDITION OF THIS AGREEMENT, AND CUSTOMER HEREBY WAIVES ALL SUCH TERMS OR CONDITIONS; THUS, SUCH WILL NOT BE BINDING ON WINONA UNLESS EXPRESSLY AGREED TO IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY WINONA’S AUTHORIZED REPRESENTATIVE.  WINONA OBJECTS TO ANY DIFFERENT, CONFLICTING, OR ADDITIONAL TERMS OR CONDITIONS AND REJECTS SUCH, WHETHER CONTAINED IN OTHER PROPOSALS OR COMMUNICATIONS FROM OR WITH CUSTOMER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING, OR USAGE IN THE TRADE.  FOR CLARITY, WITHOUT LIMITING THE PRECEDING, IN NO EVENT WILL WINONA BE SUBJECT TO ANY TIER 1 AGREEMENT BETWEEN CUSTOMER AND ANY AUTOMOBILE MANUFACTURER.  WINONA AND CUSTOMER AGREE THAT THIS AGREEMENT, AS MAY BE SUBSEQUENTLY MODIFIED BY WINONA FROM TIME TO TIME, IS ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING TRANSACTIONS BETWEEN THEM. 

 

19. Termination. If, at any time, (i) Customer fails to pay to Winona any amount in full when due, or otherwise fails to perform any other obligation owed to Winona; (ii) Customer becomes insolvent or makes an assignment for the benefit of creditors or is adjudged bankrupt or a receiver or trustee of Customer’s property is appointed; or (iii) a levy, execution, or attachment is made of any material portion of Customer’s property, Winona may, in its sole and absolute discretion, stop production of any Services and refuse to make further deliveries and/or Services for which Winona has not been paid in full (in cash or cleared funds) or continue to perform but refuse to make any shipments except upon the receipt of payment in full (in cash or cleared funds) prior to shipment. All amounts payable to Winona are due immediately upon termination pursuant to this Section despite any other provision to the contrary herein. 

 

20. Financial Responsibility.  Reasonable doubt on the part of Winona concerning the financial responsibility of Customer (including, but not limited to, Customer's failure to pay on the net due date for Services) shall entitle Winona to stop operation/production, decline shipment, or stop any Services in transit or production without any liability whatsoever to Customer, until such time as the Services have been paid for or until Winona is furnished reasonably satisfactory proof of Customer’s financial responsibility, as determined in Winona’s sole and absolute discretion. If Winona suspends performance and later proceeds with fulfillment of such order, Winona shall be entitled to such extension of time for performance as is necessitated by the suspension.  

 

21. Waiver.  Neither failure nor delay on the part of Winona in exercising its rights pursuant to this Agreement will operate as a waiver of any of Winona’s rights.  Any waiver by Winona of any breach of any provision of this Agreement will not be deemed a waiver of any subsequent breach or default. 

 

22. Severability.  If any provision of this Agreement is found unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement, and the remaining provisions will continue in full force. 

 

23. Assignment.  Customer may not assign its rights or obligations pursuant to this Agreement (whether voluntarily, involuntarily, by operation of law, transfer of majority controlling interest, or otherwise) without the prior written consent of Winona.  This Agreement will be binding upon Customer and its successors and permitted assignees. 

 

24. Force Majeure.  If either Party’s performance of obligations (except for payment of fees for Services already rendered) under this Agreement is materially hampered, interrupted, or interfered with for reasons including, but not limited to: fire, casualty, lockout, strike, labor conditions, unavoidable accident, riot, war, earthquake, landslides, or by the enactment, issuance, or operation of any municipal, county, State, or federal law, ordinance or executive, administrative, or judicial regulation, order, or decree, or by any local or national emergency, the other Party will be excused from performance of this Agreement. 

 

25. Updates. Winona may update this Agreement at any time, and any request for Services shall be under the then-current version of this Agreement, which may be found at: https://www.winonapowder.com/TOS