TERMS & CONDITIONS OF SALE
In these Terms and Conditions of Sale, Archatrak, Inc. is referred to as “Archatrak”, the parent company of the division of Archatrak Inc. trading as Archasol, and the customer or person or entity purchasing Archatrak’s products (herein referred to as “Products” and “Goods”) from Archatrak is referred to as the “Buyer”.
These Terms and Conditions of Sale, and Archatrak’s Order Acknowledgement or any order relating hereto, constitute the complete and exclusive agreement and understanding governing the sale of Goods by Archatrak to Buyer (the “Agreement”) and supersede all prior agreements, understandings or representations, whether written or oral, among the parties with respect to such matters. Provided, however, that if any term, provision or condition of Archatrak’s Order Acknowledgement should conflict or be inconsistent with any paragraph of these Terms and Conditions, then the content of Archatrak’s Order Acknowledgement shall prevail and control over such conflicting and/or inconsistent terms.
BY ACCEPTING ARCHATRAK’S ORDER ACKNOWLEDGEMENT AND/OR INSTRUCTING ARCHATRAK TO SHIP PRODUCTS, BUYER ACKNOWLEDGES, ACCEPTS AND AGREES TO THESE TERMS AND CONDITIONS.1. CHANGES:
Buyer may request changes or additions to the Goods consistent with Archatrak’s specifications and criteria. In the event such changes or additions are accepted by Archatrak, Archatrak may revise the price and dates of delivery accordingly. Archatrak reserves the right to change designs and specifications for the Goods without prior notice to Buyer, except with respect to Goods being made-to-order for Buyer.
Archatrak may cancel the Order Acknowledgment and any order relating hereto if Buyer becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or if proceedings are commenced by or against Buyer in any jurisdiction under a provision or chapter of any bankruptcy act, or if the Buyer suffers the appointment of a receiver or trustee or makes an assignment for the benefit of creditors.
Buyer may cancel orders only upon reasonable advance written notice and upon payment to Archatrak of Archatrak’s cancellation charges which include, among other things, all costs and expenses incurred to cover commitments made by Archatrak and a reasonable profit thereon. Archatrak ‘s determination of such cancellation charges shall be conclusive. PROVIDED, HOWEVER, THAT ANY CANCELLATION MUST BE MADE BEFORE THE GOODS HAVE BEEN SHIPPED.
For “Custom Order Products” (which means Products ordered specifically upon request of the Buyer from overseas suppliers) and for “Custom Made Products” (which means Products manufactured upon request of the Buyer, not included in the current Archatrak ‘s pricelist), the cancellation made subsequently to the confirmation of the Order Acknowledgement will entail, from the Buyer, the obligation to pay Archatrak the full due amount listed in the Order Acknowledgment itself.
3. TERMS OF PAYMENT:
Title to all Goods supplied shall remain vested in Archatrak and shall not pass to Buyer until the purchase price for the Goods has been paid in full and received by Archatrak.
Unless otherwise expressly agreed by Archatrak in writing, the purchase price for all orders including estimated shipping charges, shall be paid in full in advance of shipment. Payment may be made by check, wire transfer or credit card. Credit card payments are accepted up to a maximum of $8000 unless otherwise notified by Archatrak in writing, with the balance payable by check or wire transfer.
Buyer may optionally apply for credit with Blue Tarp Financial, Archatrak’s nominated third party finance company. Either Archatrak or Blue Tarp Financial may perform a credit check prior to the commencement and acceptance of an order. Buyer shall provide Archatrak with all necessary information requested to verify Buyer’s credit. Credit facilities shall be granted at the sole discretion of Archatrak and delivery of Goods will only be effected after credit facilities have been approved.
In the event Archatrak. allows in-house or third party credit, no offset, back-charge, claim or deduction of any kind shall be withheld from any amount owed by Buyer to Archatrak. without the written consent of an officer of Archatrak. All amounts owed by Buyer to Archatrak shall accrue interest at the rate of two (2%) percent per month, or the maximum rate permitted by law, whichever is less, from due date. Buyer shall reimburse Archatrak for all costs of collection accrued by Archatrak including, without limitation, attorney’s fees. Any monies received by Archatrak from Buyer may be applied by Archatrak to any of Buyer’s open accounts in any manner that Archatrak may determine.
4. TAXES, DUTIES AND ADDITIONAL CHARGES:
Archatrak prices do not include sales, use or similar taxes, duties, tariffs or other charges of any kind. Consequently, in addition to the price specified herein, Buyer shall pay the amount of any present or future sales, use or similar taxes, excises, duties, tariffs, and other charges (including, without limitation, royalties) applicable to the Order Acknowledgment, or any order relating hereto, or the delivery, storage, manufacture, use or consumption of any Goods covered hereby.
The Order Acknowledgement includes anticipated delivery charges. Any other costs from the freight carrier as a result of action or inaction by Buyer shall be the responsibility of Buyer, including, without limitation, detention time billed beyond the first hour, lift gate services, forklift services and consignment charges.
Archatrak reserves the right to amend the original delivery charge or shipping and handling amount, or invoice Buyer separately, if the original delivery charge or shipping and handling amount was based upon incorrect information received at the time of the Order Acknowledgment, if additional services by the carrier were required, or as otherwise necessary to perform the pickup, transportation and delivery functions therein.
5. SHIPMENT AND DELIVERY:
Archatrak will use all reasonable commercial efforts to maintain the
delivery date(s) acknowledged or quoted, all shipping dates are
approximate and not guaranteed. Failure by Archatrak to comply with any
specified delivery date shall not constitute a breach of these terms and
conditions and Archatrak will not accept any liability for any cost
incurred due to late delivery.
ii. Delay in delivery due to circumstances outside the control of Archatrak shall not entitle the Buyer to cancel any order or refuse delivery. The date of delivery shall be extended for such time as may be reasonably necessary to enable Archatrak to ship.
iii. Archatrak reserves the right to make partial shipments. If delivery is effected in installments, delay in delivery of any installment shall not relieve Buyer of its obligation to accept the remaining installments.
iv. Unless expressly stated on the face of the Sales Order to the contrary, delivery shall be deemed completed and risk of loss or damage and responsibility shall pass from Archatrak to Buyer when the Goods are placed on the carrier at Archatrak’s warehouse or supply point.
v. Buyer must inform Archatrak in advance of any restrictions or difficulties with access by large trucks. Archatrak, at its option, shall not be bound to deliver any Goods for which Buyer has not provided accurate shipping instructions.
vi. Archatrak Goods will be off-loaded at the nearest accessible point to the delivery address at the discretion of the driver, or curbside. Any delivery made by Archatrak’s carrier beyond the curb line shall be the sole responsibility of Buyer and Archatrak shall bear no liability for it.
vii. For delivery to locations other than ‘curbside’ or ‘restricted access’ locations, ‘White glove’ service or ‘Inside delivery service’ may be available at extra cost. The cost of any such additional services if required, shall be the sole responsibility of Buyer.
viii. If shipment of the Goods is postponed or delayed by Buyer for any reason, including but not limited to Buyer providing Archatrak with inaccurate shipping instructions, or causing any unreasonable delay in unloading or releasing delivery vehicles, then Buyer agrees to reimburse Archatrak for any and all transport and/or storage costs and other additional and incidental expenses including detention charges, resulting therefrom.ix. Buyer must ensure a suitable/responsible person is present at the delivery address at the time of the delivery to supervise off-loading and to sign for receipt of the Goods, unless otherwise arranged in advance. If deliveries are made without Buyer being present, Archatrak accepts no responsibility for any incorrect delivery or loss or damage to the Goods after the time of delivery.
x. Buyer is solely responsible for checking shipments for damage or shortage and filing any claims with the carrier. Any shortages or damages must be acknowledged and signed for at the time of delivery.in which case.
xi. If a delivery is unsuccessful due to the absence of a suitable/responsible person at the delivery address at the time of delivery, or due to Buyer failing to inform Archatrak of any inaccessibility or other relevant delivery restrictions, the Goods will be retained by the haulage contractor and returned to the contractor’s nearest freight depot until Archatrak receives further instruction from Buyer. Buyer agrees to reimburse Archatrak for all re-delivery charges for each and every re-delivery attempt.
xii. If Archatrak. is required to store in its own or contracted facilities, Goods ordered by Buyer for more than sixty (60) days after the scheduled delivery dates, or if there is no shipping activity for sixty (60) days, an additional charge of no less than $20.00 per pallet per month for each day in excess of the sixty (60) day period, shall apply.
6. NOTICE OF NONCONFORMITY:
Upon delivery of Archatrak’s Goods to Buyer, Buyer shall inspect the Goods to confirm conformance with the specifications in the Order before commencing installing or altering the Goods in any respect. Buyer shall notify Archatrak of all defects in Goods within ten (10) days of discovery of same and within five (5) days if a shortage is claimed.
Any and all claims by Buyer that Archatrak’s Goods do not meet the specifications in the Order must be made in writing by Buyer at the time of delivery of the Goods to Buyer. It is Buyer’s sole and absolute responsibility to verify the quantities, colors, sizes, etc. of Archatrak’s Goods at the time of delivery and Archatrak assumes no responsibility in this regard. Failure to inspect Goods and/or otherwise comply with the terms of this paragraph shall constitute a waiver by the Buyer of all claims in respect of any nonconformity or shortage of Goods which would have been discoverable by reasonable inspection and shall be conclusive evidence that Archatrak has satisfactorily performed its supply obligations.
If any of Archatrak’s Goods do not meet
the specifications in the Order, as Buyer’s exclusive right and remedy,
Archatrak agrees to deliver replacement Goods that meet the
specifications of the Order at a time mutually agreed upon by Buyer and
Archatrak. Buyer’s notice of nonconformity shall provide detailed
information as to the nonconformity or shortage. Buyer shall hold the
Goods for disposition and afford Archatrak a reasonable opportunity to
inspect the Goods. In no event shall the Goods be returned without
7. RETURNED GOODS:
Except as otherwise provided with respect to warranty defects, any and all material which Buyer desires to return for exchange or credit and which Archatrak agrees to take back, will be accepted only with prior written authorization from Archatrak and must be in full compliance of Archatrak’s return policy as stated hereunder.
i. Any Goods
returned must be in delivered in appropriate packaging, free from any damage and in resalable
condition. Any Goods submitted for return that are received by Archatrak
in broken, damaged or previously installed condition, will not be
subject to credit.
ii. Any refunds or credits will only be issued after the Goods have been received by Archatrak’s warehouse, counted and inspected for damage.
iii. Goods may not be returned after thirty (30) days from the original shipment date or pick-up date, unless agreed by Archatrak;
iv. Any refunds or credits issued for returned items shall be at the sole and absolute discretion of Archatrak and will be subject to a 10-25% restocking fee (unless Archatrak erred in filling the order) The original delivery cost of the Goods will also be deducted from any refund or credit granted.
v. No returns will be accepted for special order products. Returns will not be accepted unless Archatrak has first issued a Return Authorization Number in writing together with return shipping instructions. This RMA must be included with the returned items. Failure to include this RMA with the returned Goods may delay payment of any refund.
vi. All freight costs, including handling, repacking, insurance and other costs associated with the returned Goods are the responsibility of Buyer. Archatrak accepts no obligation to arrange return shipping but will provide assistance on request.
vii. Except as agreed with Archatrak, all returned Goods must be packed on strong pallets, adequately wrapped, crated and strapped to avoid damage or movement and readily accessible for pickup by common carriers using standard equipment.
Unless otherwise arranged in advance, Buyer must ensure a suitable/responsible person is present at the pick-up address at the time of the pick-up to supervise the loading and sign the Bill of Lading,
8. LIMITATION OF LIABILITY:
Buyer shall be solely responsible for the installation of Archatrak’s Goods and Archatrak shall not be subject to, and shall have no liability whatsoever for, defective installation of Archatrak’s Goods. Buyer shall indemnify, defend and hold Archatrak harmless from any and all claims, demands, losses, damages, assessments, liabilities, deficiencies, actions, taxes, charges, orders, fines, penalties, interest and amounts paid in settlement and all costs and expenses (including all legal and other professional fees and disbursements) arising as a consequence of any action or inaction by Buyer related directly or indirectly to Buyer’s use of Archatrak’s Goods (excluding claims for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of Archatrak, its agent or employees).
In no event will Archatrak be liable for consequential, incidental, special or exemplary damages, including, without limitation, loss of profits, or revenues, loss of use of, or damage to, any associated equipment or materials, cost of capital, cost of substitute products, facilities or services, downtime or costs or claims of Buyer’s customers or clients, whether based upon contract, tort, strict liability or otherwise. Archatrak’s liability on any claim of any kind for any loss or damage arising out of, resulting from or concerning any aspect of the Order Acknowledgment, or any order relating hereto, or from, any Goods or services furnished hereunder, shall be limited to either of the following remedies (the election of which shall be made solely by Archatrak):
i. replacement of the product at
Archatrak’s cost and shipped F.O.B. Archatrak warehouse to the Buyer.
Replacement as used herein shall mean the providing of substituted
material only and shall not include any labor or installation in respect
of such replacement; or
ii. monetary payment by Archatrak to Buyer not to exceed the amount of the Contract price of the ordered products excluding freight.
hereby covenants and agrees to defend, indemnify and hold harmless
Archatrak, its officers, directors, employees, agents, advisers,
representatives and affiliates (collectively, the “Indemnitees”) from
and against, and pay or reimburse the Indemnitees for any and all
claims, liabilities, obligations, losses, fines, costs, royalties,
proceedings, deficiencies or damages (whether absolute, accrued,
conditional or otherwise and whether or not resulting from third party
claims), including out-of-pocket expenses and reasonable attorneys’ and
accountants’ fees incurred in the investigation or defense of any of the
same or in asserting any of their respective rights hereunder
(collectively, “Losses”), resulting from or arising out of:
i. Buyer’s breach of any provision or covenant set forth in this Agreement, and/or
ii. Buyer’s making of any representation to any third party regarding the Goods other than the Limited Warranties set forth in Section 14 below.
Archatrak. assumes no responsibility for the performance, use, maintenance or repair of the Goods covered hereby unless they are installed, used, maintained and repaired in strict compliance with all applicable building codes, architectural or engineering plans or specifications, any instructions or guidelines that have been provided by Archatrak and all applicable laws, regulations, statutes or ordinances. Further, Archatrak assumes no responsibility for any loss or damage caused by improper loading of Buyer’s truck or common carrier, if such loading is done pursuant to Buyer’s specifications or direction. In the event Buyer shall:
i. fail to install and maintain the Goods as aforesaid, or
ii. direct Archatrak to improperly load Buyer’s truck or common carrier,
then Buyer shall indemnify and hold harmless Archatrak. and its successors and assigns from and against any and all costs (including counsel fees), loss (including incidental and consequential damages) and damages of any nature arising out of or resulting from any improper loading, use, maintenance, installation or repair of the Goods covered hereby or from any violation of any applicable law, regulation, statute or ordinance by Buyer, or on its behalf, or by its agents, employees, licensees, lessees, vendees, or direct or remote assigns. Said costs, loss and damages shall include, without limitation, liability arising from the injury, illness or death of any person or damage to or destruction of any property, whether said liability is premised upon contract, tort, strict liability or otherwise.
No terms or conditions other than those stated herein or in the Order Acknowledgement, and no agreement or understanding, oral or written, purporting to modify these terms or conditions whether contained in Buyer’s purchase or shipping release forms, or elsewhere, shall be binding on Archatrak unless hereafter made in writing and signed by an officer of Archatrak. No proposals, negotiations and representations, if any, made prior and with reference hereto shall have any effect unless expressed herein. No waiver by Archatrak of any breach or of any provision hereof shall constitute a waiver of that breach or that term at any subsequent time or of any other breach or term. Any stenographic, clerical or other errors which are obvious or which reasonably can be understood by the parties to be errors, are subject to correction without penalty. If any provision or paragraph hereof is determined to be illegal or unenforceable, it shall not affect enforceability of any other provision or paragraph hereof.
Neither Archatrak nor Buyer may assign any Order Acknowledgment nor any order relating hereto without the written consent of the other.
11. CHOICE OF LAW AND FORUM:
The laws of Delaware shall govern all matters relating hereto or to any Goods covered hereby. Any legal actions which may arise as a result of disputes, controversies, or claims arising out of or related to the Order Acknowledgment or any Goods or services covered hereby, shall be litigated in the state of Delaware, or in such other forum as Archatrak and Buyer may agree upon.
12. PRODUCT WARRANTY:
and conditions of warranties offered by Archatrak depend on the