1. PRIMACY OF SELLER'S TERMS AND CONDITIONS AND WAIVERS
Any order received and accepted by Arbell (Seller) shall be construed as an acceptance of Seller's offer to sell its products to the purchaser (Buyer) in accordance with the terms and conditions of sale set forth herein. This document contains all the terms and conditions of the agreement between Seller and Buyer. No waiver, whether express or implied, by Seller of any of the terms or conditions hereof shall be deemed a continuing waiver or trade custom between the parties, but shall apply solely to the instance to which the waiver is directed.
Prices for all products will be as stated in the standard price list in effect at the time Seller accepts the purchase order or as specified in an authorized Seller written quotation in effect at the time of the acceptance by Seller of a conforming order. Prices published by Seller or quoted by Seller are subject to change without notice. Written quotations expire automatically 30 days from the date issued, and are subject to change or termination by notice during that period. All prices are subject to adjustment on account of specifications, quantities or other terms and conditions which are not part of the original price quotation.
3. TAXES AND OTHER CHARGES
Prices do not include any sales, use, excise or other taxes. Unless otherwise agreed to by Seller in writing, all such taxes and charges shall be paid by Buyer. Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt a sale from sales, use, or other tax. Unless otherwise agreed to by Seller in writing, all prices are FOB shipping point and prices do not include freight/handling charges and insurance charges.
4. DELIVERY, TITLE AND RISK OF LOSS
Unless otherwise specified, Seller's obligation is to deliver the products to a carrier at the shipping point. Seller reserves the right to produce and ship all or any part of the products specified in any order, including partial shipments, from any of its plants or facilities or those of its suppliers. Seller reserves the right to determine the method of transportation, but Seller will use all reasonable efforts to comply with Buyer's requests as to method of transportation. Subject to paragraph 6 and Seller's right to stop delivery in transit of product for failure of payment, title and risk of loss passes to Buyer at the moment of Seller's delivery of the products to the carrier. Unless otherwise agreed to by Seller in writing, Buyer shall be responsible for making all claims with carriers, insurers, warehousemen, and others for misdelivery, nondelivery, loss, damage or delay. Although Seller may assist Buyer in connection with pursuing any claim for damages, Seller shall not thereby assume any obligations for such damage or to continue to assist Buyer in the presentation of its claim to any carrier. Seller may withhold, suspend in whole or in part shipment of products in the event that Buyer fails to pay when due invoices for products shipped or otherwise fails to perform any of its obligations to Seller.
If Buyer establishes and maintains open account credit with Seller, payment shall be due within 30 days after the date of shipment. If credit is not established or maintained, terms shall be net cash on or prior to the date of shipment. Seller reserves the right, at its sole discretion at any time to revoke any credit previously extended. Amounts owed by Buyer with respect to which there is no dispute shall be paid without set off for any amounts which Buyer may claim are owed by Seller and regardless of any other controversies which may exist. Buyer indemnifies Seller against all costs of collection, including reasonable attorneys' fees. All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of two percent (2%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
6. SECURITY INTEREST
Seller reserves and Buyer grants to Seller a security interest in all products sold (and all proceeds thereof) to secure the full payment and performance by Buyer of its liabilities and obligations to Seller. Buyer acknowledges that copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as Seller may request in order to perfect its security interest.
7. CANCELLATIONS AND CHANGES
Accepted orders may not be cancelled, revised, or rescheduled without Seller's prior written consent and upon terms that will fully indemnify Seller against loss. Orders for standard product are subject to a 25% restocking fee if the order is cancelled less than 15 days prior to scheduled shipment. Orders for custom product, including custom-built, non-catalog/price list, custom painted/finished or specialty purchased items, are subject to a cancellation fee of up to 100% of the order, depending on the stage of completion of the order at the date the cancellation or revision is accepted.
8. NON-WARRANTY RETURNS
Except for products being returned under a warranty claim, in no event may products be returned to Seller unless (i) such products are in new, unused, merchantable condition and free from defects or damage, (ii) such products have been purchased from Seller within 90 days of their return, (iii) the Buyer has obtained a prior written return authorization from Seller, and (iv) such products are returned to Seller transportation and insurance charges prepaid. Obsolete and custom product, including custom-built, non-catalog/price list, custom painted/finished or specialty purchased items, cannot be returned. A restocking charge will be charged on all other returned product.
All products are subject to Seller's standard tolerances for specifications. Seller reserves the right to make substitutions and modifications in the specifications of any products provided that such substitutions or modifications do not materially adversely affect the performance of the product for the purposes for which they can be used.
10. EXCUSABLE DELAY
Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's control, including, without limitation, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, floods, epidemics, lockouts, strikes and slowdowns, delays in delivery by suppliers, or acts or omissions of the Buyer. The Buyer shall be liable for storage charges, including but not limited to all third party costs and expenses incurred by Seller, in holding or storing products for the Buyer or at the Buyer's request.
Buyer shall not assign any duties nor assign any order or any interest therein without the written consent of Seller. Any such actual or attempted assignment shall entitle Seller to cancel the order upon written notice to Buyer.
Unless otherwise specified, Seller assumes no obligation to install any products sold or to place any products in working order at Buyer's premises.
13. VALIDITY OF SEPARATE CLAUSES
If any provisions of this agreement shall be held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall not be affected or impaired thereby.