Terms of Service

1. Terms of Service:
These terms of service apply every time Sundial Industries, Inc., dba Sundial
Powder Coating, (“Sundial”) provides services of any type for you unless otherwise
agreed between us in writing. Acceptance of our services by you confirms that you
agree to these terms of service and that they are binding upon the you.

2. Quotes/Prices/orders:
All Sundial’s quoted prices are subject to change without prior written notice. If we have
provided you with a quote, that quote is only good for fifteen (15) days and will lapse if
not accepted during that time. We may amend or withdraw a quote at any time before it
has been accepted by you. 

3. Price adjustments:
Quoted prices cover standard processing unless otherwise noted. In the event,
additional processing is required, i.e. sanding, multiple washing, recoating, etc., due to
an unforeseen condition, the quoted pricing will be adjusted accordingly.

4. Minimum Charge:
Any changes after the initial bid submitted or discrepancy in information will cause additional setup charges and or minimum charges.

5. Mutual Promises:
Sundial will:
(a) Act in good faith in providing the services within the agreed upon time frame, or
where no time frame is agreed, then in a timely manner, and
(b) Not be liable to Customer for any loss or damage should Sundial be unable to
provide the services in the agreed time frame, or where no time frame is agreed, in a
timely manner, if the delay or non-performance is due to circumstances beyond our
reasonable control. In the event of such delay, the due date will be deferred for a
period equal to the time lost by reason of the intervening cause or circumstance.
Customer will:

(a) Act in good faith and timely pay all amounts due and payable to Sundial without
offset or deduction
(b) Cooperate with Sundial so that Sundial can complete the services customer is
seeking.

6. Terms/payment: 
Sundial requires a 50% deposit upon order placement (NON-REFUNDABLE) and the
remaining balance due upon competition.
Or
Payment is due upon completion of the order unless approved credit has been
established.
If buyer fails to make any payments in accordance with the stated terms, Sundial
reserves the right to hold shipments or deliveries until the terms are met or other
arrangements are made. Interest will accrue on the buyer’s outstanding account
balance from the date of the invoice at the maximum legal rate until the outstanding
balance is paid in full. Customer agrees to pay all costs of collection, including but not
limited to attorney’s fees for all delinquent accounts.

7. Disclaimer:
Sundial shall not be responsible for any shrinkage of quantities of parts. Small amounts
of shrinkage, especially to small parts and parts difficult to hang, can be expected
during processing. Sundial assumes no responsibility for the condition of the material
delivered by the buyer, or any condition uncovered during the processing, (i.e. holes
from excessive rust, pits, cracks, blemishes, broken joints, etc. Sundial will not be
responsible for any disassembly of parts prior to coating or assembly of parts after
coating. Customer is responsible for having the product(s) properly prepared for
coating.

8. Packaging and Shipping:
Unless otherwise agreed upon, all parts to be treated by Sundial will be repackaged as
originally received at Sundial. Sundial may discard the original packaging and replace it
with new packaging materials that are clean and oil free. In the absence of shipping
instructions, Sundial will use its own discretion in choosing a carrier to be used. Sundial
assumes no responsibility for insuring shipment unless specifically requested by the
buyer and then at the buyer’s expense and valuation. Should Customer refuse to accept
delivery of the goods, Sundial is entitled to charge customer a reasonable storage fee.
However, Sundial is not responsible for lost or damaged goods that remain in its
possession after five (5) days.

9. Heat:
All parts and items submitted for powder coating must be capable of withstanding
temperatures of 450 degrees Fahrenheit unless otherwise stated. Stripping of parts
can require temperatures in excess of 800 degrees Fahrenheit. Parts submitted for
stripping must be capable of withstanding a temperature of 800 degrees Fahrenheit for
up to four hours. Such temperatures may result in distortion of the parts, cracking,
broken joints, melting, etc. Sundial does not and cannot assume responsibility for the
determination of the physical properties of your parts prior to processing. Customer is
responsible for determining if his product can withstand our processing.

10. Tolerances:
In the absence of specific requirements provided by the customer in writing, commercial
tolerances, specifications and manufacturing practices, commonly used in the coating
industry shall apply.

11. Modifications:
Unless the Specifications have been agreed to be firm for a certain period or quantity of
goods, Sundial reserves the right to change or modify the Specifications, construction
and/or manufacture of Goods and to substitute materials used in the production and/or
manufacture of Goods from time to time upon written notice.

12. Cancellation/Payment
Sundial expects payment on services rendered, raw materials purchased, and any other
actual expenses incurred on behalf of the buyer in the event an order is cancelled or
even if the product is rendered unusable.
Sundial may terminate an order/agreement without incurring any liability to Customer if
there has been a substantial increase in the cost of providing the services between the
date of the agreement and the date of provision arising from circumstances beyond
Sundial’s reasonable control and the parties cannot agree on an adjusted price for the
services.

13. Insurance:
Customer’s material and fixtures shall not be insured by Sundial unless specifically
stated in the quotation and made a part of the order at the Customer’s expense. If no special agreement is made, Sundial assumes no responsibility for destruction or partial
loss due to fire or other casualty beyond Sundial’s specific and reasonable control.

14. Limited Warranty:
All claims made will be reviewed after full payment is received and will be limited to the
amount of coating cost only. Sundial makes no warranty either expressed or implied,
regarding suitability, usability, durability, and/or ultimate customer satisfaction with
regard to the product. Sundial solely warrants that on the date of delivery the Goods
shall conform to the Specifications. If and to the extent the Goods fail to meet such
warranty, Sundial may at its own option within a reasonable time either repair or replace
the goods at no charge to Customer or issue a credit for any such Goods in the amount
of the original invoice price.
PLEASE NOTE THAT THE APPLICATION OF POWDER COATING ON VARIOUS
MATERIALS MAY VARY. IT IS NOT UNUSUAL FOR DELAMINATIONS,
POWDER/PAINT CHIPPING, AND OTHER FLAWS MAY APPEAR UPON DELIVERY
OR IN A SHORT TIME FOLLOWING DELIVERY BY SUNDIAL. DEPENDING UPON
THE AMOUNT OF SUCH FLAW(S) SUNDIAL WILL TYPICALLY BE WILLING TO
REAPPLY POWDER COATING TO SUCH AFFECTED AREAS BUT IS NOT
REQUIRED TO DO SO ESPECIALLY IF SUNDIAL DETERMINES THAT SUCH
FLAWS DO NOT AFFECT THE INTEGRITY OF THE ITEM(S) WHICH HAVE BEEN
POWDER COATED.
Accordingly, SUNDIAL’S OBLIGATION SHALL BE LIMITED SOLELY TO REPAIR OR
REPLACEMENT OF THE GOODS OR FOR CREDIT OF THE GOODS. Sundial’s
obligation to repair, replace or credit shall be contingent upon receipt by Sundial of
written timely notice of any alleged non-conformance of Goods and, if applicable, the
return of the Goods in accordance with the terms of this contract.

15. Liability:
Sundial assumes no responsibility and/or liability for any damage suffered by
customer’s product as a result of service provided by Sundial. Under no circumstances
shall Sundial be responsible for any damages in excess of the amount of the purchase
order. Nor shall Sundial be responsible or liable to customer or any other person for any
kind of special, incidental, indirect, consequential or punitive damage or loss, cost or
expense, including without limitation, damage based upon lost goodwill, lost sales or
profits, work stoppage, production failure, impairment of other goods or otherwise, and
whether arising out of or in connection with breach of warranty, breach of contract,
misrepresentation, negligence or otherwise.

16. Compliance with Laws, Standards and Regulations:
Sundial makes no promise or representation that the Goods shall conform to any law,
statute ordinance, regulation, code or standard unless expressly stated in Sundial’s
Confirmation or in the Specifications. Customer acknowledges that the Use of the
Goods may be subject to requirements or limitations under Laws and Standards.
Customer shall be exclusively responsible for (1) ensuring compliance with all Laws and
Standards associated with its use of the Goods; and (2) obtaining all necessary
approvals, permits or clearances for such Use.

17. Independent Contractors:
Sundial and Customer are independent contractors, and the relationship created hereby
shall not be deemed to be that of principal or agent. No sale to or obligation of either
party towards a third party shall in any way bind the other party.

18. Non-Assignment:
Neither party may assign any of the rights or obligations under Sundial’s confirmation
without the prior written consent of the other party, with the exception that Sundial may
assign such rights and obligations, wholly or partly, to any of its parent companies,
subsidiaries or affiliates or to a third party acquiring all or a substantial part of Sundial’s
assets or business relating to the Goods.

19. Suspension and Termination:
If (a) Customer is in default of performance of its obligations towards Sundial, or (b) if
Sundial has reasonable doubts with respect to Customer’s performance of its
obligations to Sundial and Customer falls to provide to Sundial adequate assurance
(such as by means of ongoing credit approval) of Customer’s performance before the
date of scheduled delivery and in any case within thirty (30) days of Sundial’s demand
for such assurance; or if Customer becomes insolvent or unable to pay its debts as they
mature, or goes into liquidation or any bankruptcy proceeding shall be instituted by or
against customer, then without prejudice to any other rights of Sundial, Sundial may by
notice in writing forthwith;
(1) Demand re-delivery and take repossession of any delivered Goods which
have not been paid for; and/or
(2) Suspend its performance or terminate Sundial’s confirmation for outstanding
delivery of Goods unless Customer makes such payment for Goods on a
cash in advance basis or provides adequate assurance of such payment for
Goods to Sundial; without any intervention of courts being required and  without liability for Sundial of whatsoever kind arising out of or in connection with such suspension or termination.

In such an event listed in subsection (1) and (2) above, all outstanding claims of Sundial
shall become due and payable instantly in proportion to the quantity of Goods delivered
to the Customer that were not already repossessed by the Sundial.

20. Waiver:
Failure of the Sundial to enforce at any time any provision of these Terms and
Conditions of sale/service shall not be construed as a waiver of Sundial’s rights to act or
to enforce any such term or condition and Sundial’s rights shall not be affected by any
delay, failure or omission to enforce any such provision. No waiver by Sundial of any
breach of Customer’s obligations shall constitute a waiver of any other prior or
subsequent breach.

21. Examination and Conformity to Specifications:
On delivery, Customer shall examine the Goods and satisfy itself that the Goods
delivered meet all contractual requirements. Complaints about the Goods shall be
made in writing and must reach Sundial not later than ten (10) days from the date of
delivery in respect to any defect, default or shortage which would be apparent from a
reasonable inspection on delivery, and ten (10) days from the date on which any other
claim was or ought to have been apparent, but in no event later than six (6) months
from the date of delivery of the Goods. Use or processing of the Goods shall be deemed
to be an unconditional acceptance of the Goods and a waiver of all claims in respect to
the Goods. Defects in parts of the Goods do not entitle Customer to reject the entire
delivery of the Goods. Complaints, if any, do not affect Customer’s obligation to pay as
defined in paragraphs 5 and 11. Upon receipt of a notice of defect, Sundial is entitled to
suspend all further deliveries until the complaints are established to be unfounded
and/or refuted or until the defect has been totally cured.

22. Transfer and Risk of Property:
The risk of the Goods shall pass to Customer on leaving Sundial’s premises. Goods for
which delivery is suspended pending payment by Customer, as well as Goods of which
delivery is wrongfully rejected or not accepted by Customer, shall be held and stored by
Sundial at the risk and expense of Customer.

23. Severability:
If any provision of these Terms of Service shall be held to be invalid or unenforceable,
the same shall not affect in any respect whatsoever, the validity or enforceability of the
remaining provisions between the parties and shall be severed therefrom. The
pertaining provisions held to be invalid or unenforceable shall be reformed into

provisions satisfying the legal and economic intent of the original provisions to the
maximum extent permitted by law.

24. Force Majeure:
Neither party shall be liable in any way for any damage, loss, cost or expense arising
out of or in connection with any delay, restriction, interference or failure in performing
any obligation towards the other party caused by any circumstance beyond its
reasonable control, including without limitation, acts of God, laws, statutes, ordinances,
regulations, legislative measures, acts of governments or other administrative
measures, orders or decrees of any court, earthquake, flood, fire, explosion, war,
terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor
disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of
transportation, breakdown of plant or essential machinery, emergency repair or
maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods
supplied by suppliers or subcontractors.
Upon the occurrence of any event of Force Majeure, the party suffering thereby shall
promptly inform the other party by written notice thereof specifying the cause of the
event and how it will affect its performance of its obligations under Sundial’s
confirmation and the terms of this agreement.
In the event of any delay, the obligation to deliver shall be suspended for a period equal
to the time loss by reason of Force Majeure. However, should a Force Majeure event
continue or be expected to continue for a period extending to more than sixty days after
the agreed delivery date, either Party is entitled to cancel the affected part of Seller’s
confirmation without any liability to the other Party.

25. Indemnification:
Customer shall indemnify and hold harmless Sundial, its officers, agents and employees
from and against all claims, damages, losses, expenses, including attorney’s fees which
arise out of any breach of these terms of service by Customer or result from the goods
and service provided by Sundial. This indemnification provision applies to any claim for
property damage and/or bodily injury and protects Sundial regardless of whether or not
the damage was caused, in whole or in part, by Sundial. Customer further agrees to pay
all court costs and attorney’s fees incurred by Sundial in enforcing this indemnification
agreement.

26. Applicable Law/Arbitration and attorney’s fees:
The Customer agrees that any and all agreements, contracts, disputes, and/or lawsuits
between customer and Sundial are governed by the law of the State of California. This
agreement shall be conclusively deemed to be entered into at Sundial’s place of

business and the place of performance shall likewise be conclusively deemed to be
Sundial’s place of business.
Except as specifically provided herein, any controversy, claim or dispute as to
construction or operation of or rights and liabilities relating to this agreement shall be
submitted to and settle by arbitration to be conducted by the American Arbitration
Association pursuant to its commercial rules and held in Los Angeles, California. The
prevailing party shall be entitled to a recovery for all costs, including costs of arbitration,
and reasonable attorney’s fees which they may incur. Notwithstanding the foregoing, in
the event a party asserts a monetary claim which is within the jurisdiction of the small
claims court as to both parties, (and said claim would not cause the party bringing the
action to exceed the maximum number of claims permitted by a said party in a calendar
year), said claim shall be pursued in small claims court.
Any petition for confirmation of an arbitration award, as well as notice of hearing
thereon, shall be served by First Class U.S. mail, postage prepaid as follows: As to
Sundial, addressed to Sundial at the address shown on the last invoice to Customer;
(as to customer, addressed to the customer at customers business location.