TERMS AND CONDITIONS OF SALE
Products purchased and sold hereunder shall be those for which Buyer submits an Order which is accepted by Arc Suppression Technologies. Arc Suppression Technologies’ quantities shall govern unless proved to be in error. On Orders for Products carried in stock, Arc Suppression Technologies will deliver the ordered quantity specified. However, in the manufacture of Products it is agreed that Arc Suppression Technologies will be allowed production losses. Arc Suppression Technologies shall have the right to manufacture, deliver and invoice for partial deliveries of Products.
Note: Arc Suppression Technologies will deliver exact quantities on Products with a net price of $100 or more. If Buyer expressly requests no variation in delivered quantity of Products with a total net price under $100, a ten percent (10%) surcharge will be added to the net billing on the invoice for such Order.
Risk of loss and title transfer pass to Buyer on shipment. Arc Suppression Technologies shall prepay freight, assure the shipment and select the means of transportation unless Buyer provides specific written instructions otherwise with Buyer’s order. Arc Suppression Technologies shall not be bound to tender delivery of any quantities for which Buyer has not given shipping instructions. Arc Suppression Technologies shall be entitled to designate from time to time the locations from which Buyer may receive or pick up Products.
Terms are net 30 days from date of invoice with approved credit. Prices and discounts are subject to change without notice. All quotations are valid for 30 days unless otherwise stated.
Stock that has not been used or modified may be returned to Arc Suppression Technologies for a twenty percent (20%) restocking charge. All stock Products require Arc Suppression Technologies’ prior authorization to be returned and must be returned within one hundred twenty (120) days from the date of delivery.
Prices are subject to change without advance notice. If Arc Suppression Technologies desires to revise the discounts, prices, points of delivery, service allowances or terms of payment but is restricted to any extent against so doing by reason of any governmental request, law, regulation, order or action, or if the discounts, prices, points of delivery, service allowances or terms of payment then in effect are altered by reason of governmental request, law, regulation, order or action, Arc Suppression Technologies shall have the right (i) to terminate this Order by notice to Buyer, (ii) to suspend deliveries for the duration of such restriction or alteration or (iii) to have applied to this Order (as of the effective date of such restriction or alteration) any discounts, prices, points of delivery, service allowances or terms of payment governmentally acceptable. Any delivery suspended under this Section may be canceled without liability.
Prior approval must be obtained from Arc Suppression Technologies or the relevant distributor, representative, or reseller, to return any Product. Arc Suppression Technologies will assign a return authorization number and record the reason for the return. Arc Suppression Technologies will examine returned Product to determine the actual cause, if any, leading to Buyer’s return. If Product has a manufacturing defect, Arc Suppression Technologies, in its sole discretion, may issue a credit for the returned Product or replace with like Product. If returned Product is not subject to Arc Suppression Technologies’ warranty, Buyer will be notified of the estimated cost of restocking or replacement. Thereafter, Buyer must advise Arc Suppression Technologies whether or not Buyer chooses to have Product replaced.
Buyer must notify Arc Suppression Technologies in writing of requested changes in the quantity for Products which are ordered but not yet in the process of manufacture. After receipt of such notice, Arc Suppression Technologies will inform Buyer of any adjustments to be made in price, delivery schedules, etc. resulting from Buyer’s requested changes prior to incorporating requested changes into manufactured Products.
FREIGHT AND TAXES
Prices do not include prepaid freight, federal, state or local taxes. Any increase in freight rates paid by Arc Suppression Technologies on deliveries covered by this Order and hereafter becoming effective and any tax or governmental charge or increase in same (excluding any franchise or income tax or other tax or charge based on income) (i) increasing the cost to Arc Suppression Technologies of producing, selling or delivering Products or of procuring Products used therein or, (ii) payable by Arc Suppression Technologies because of the production, sale or delivery of Products, such as Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross Receipts Tax, Value Added Tax, and Ways Fees may, at Arc Suppression Technologies’ option, be added to the prices herein specified and be added to invoices.
On complex Products, an engineering charge shall be applied or included in the price of Prototypes. This charge is not subject to discounts.
All tooling, fixtures, software, and documents are the property of Arc Suppression Technologies. Arc Suppression Technologies will accept Buyer’s special tooling if sent freight prepaid. Arc Suppression Technologies will maintain this tooling, exercising reasonable care, in order to produce Buyer’s Products. Permanent molds for aluminum cast-in and Polymer Products shall be the property and responsibility of Buyer.
There will be no cancellation charge for stock Products. Non-stock and modified-stock Products may be subject to a cancellation charge to be determined by Arc Suppression Technologies depending upon the portion of Product completed at the time of such cancellation.
EXCUSE OF PERFORMANCE
(A) Deliveries may be suspended by either party in the event of: Act of God, war, riot, fire, explosion, accident, flood, sabotage; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; compliance with Governmental Requirements (as hereinafter defined); breakage or failure of machinery or apparatus; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of such party; or in the event of labor trouble, strike, lockout or injunction (provided that neither party shall be required to settle a labor dispute against its own best judgment); which event makes impracticable the manufacture, transportation, sale, purchase, acceptance, use or resale of Products or a material upon which the manufacture of Products is dependent.
(B) If Arc Suppression Technologies determines that its ability to supply the total demand for Products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of Products, is hindered, limited or made impracticable, Arc Suppression Technologies may allocate its available supply of Products or such material (without obligation to acquire other supplies of any such Products or material) among itself and its purchasers on such basis as Arc Suppression Technologies determines to be equitable without liability for any failure of performance which may result therefrom.
(C) Deliveries suspended or not made by reason of this Section shall be canceled without liability, but this agreement and/or Order shall otherwise remain unaffected.
If Buyer orders and/or Arc Suppression Technologies delivers a Product designated as a “Prototype”, no guarantees, warranties or representations as to fitness for a particular purpose or merchantability are made with respect to such Prototype. Buyer shall have the duty and sole responsibility to test a Prototype prior to acceptance and/or incorporation into end-use applications. Further, a production Product based on a Prototype design may differ in assembly methods and materials from the Prototype. Buyer, therefore, shall have the duty and sole responsibility for testing and acceptance of production Products which are based on Prototype designs.
WARRANTY AND LIMITATION OF LIABILITY
Arc Suppression Technologies warrants its Products against defects in material and workmanship for at least two (2) year from the date of delivery, provided such Product is properly applied, used and maintained. Refer to the express written warranty time period for each individual Product or contact the relevant Arc Suppression Technologies plant for such warranty time period information. Arc Suppression Technologies does not warrant any Product against damage from corrosion, contamination, misapplication, improper specification or wear and tear and operational conditions beyond Arc Suppression Technologies’ control. The terms of this Warranty are the exclusive terms available to Buyer and to any other person or entity to whom Products are transferred during the period of this Warranty. No person has authority to bind Arc Suppression Technologies to a representation or warranty other than this express Warranty. Arc Suppression Technologies shall not be liable for incidental or consequential damages resulting from the use of Products whether a claim for such damages is based upon warranty, contract, negligence or other cause of action. Should any Product fail while subject to this Warranty, such Product shall be repaired or a substitute Product shall be provided, at Arc Suppression Technologies’ option, at no charge to Buyer or to any other person or entity to whom Product is transferred during the period of this Warranty. Arc Suppression Technologies must be notified of the alleged failure of Product within thirty (30) days of such event and advanced authorization for repair or replacement must be obtained in writing from Arc Suppression Technologies. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER SUCH WARRANTIES ARE SPECIFICALLY EXCLUDED. THE CORRECTION OF ANY DEFECT IN OR FAILURE OF PRODUCTS REPLACEMENT TO THE EXTENT SET FORTH ABOVE, SHALL BE ARC SUPPRESSION TECHNOLOGIES’ LIMIT OF LIABILITY AND THE EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF THE PRODUCTS. IN NO EVENT SHALL ARC SUPPRESSION TECHNOLOGIES BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ARC SUPPRESSION TECHNOLOGIES SHALL NOT BE LIABLE FOR, AND BUYER AND ANY OTHER PERSON OR ENTITY TO WHOM PRODUCTS ARE TRANSFERRED DURING THE PERIOD OF THIS WARRANTY ASSUMES RESPONSIBILITY FOR, ALL PERSONAL INJURY AND PROPERTY DAMAGE RESULTING FROM OR RELATED TO THE HANDLING, POSSESSION OR USE OF PRODUCTS AND PRODUCTS MANUFACTURED AND SOLD BY ARC SUPPRESSION TECHNOLOGIES HEREUNDER.
THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT AND/OR ORDER AND ANY DISPUTE CONNECTED HEREWITH SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES. These Terms and Conditions constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement and/or Order relating to the subject matter herein. Except as otherwise expressly provided herein, no conditions, usage of trade, course of dealing or performance, understanding or agreement and/or Order purporting to modify, vary, explain or supplement the terms or conditions of this agreement and/or Order shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of any purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing or performance shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing signed by the party to be bound. If any term, condition or provision of this agreement and/or Order or the application thereof is judicially or otherwise determined to be invalid or unenforceable, or if the parties mutually agree in writing to any revision of this agreement and/or Order, the remainder of this agreement and/or Order and the application thereof shall not be affected, and this agreement and/or Order shall otherwise remain in full force and effect.