Terms and Conditions of Use

I. CONTRACT TERMS

1. Terms and conditions are an integral part of any contract of sale involving the products of Arcitell, LLC (Seller) and Arcitell, LLC may change those terms from time to time. All orders are subject to this contract and terms and conditions in effect at time of order. Customer (Buyer) agrees to terms and conditions in effect. The current terms and conditions are available at www.arcitell.com/terms or from Seller. Current terms and conditions cancel and supersede any previously in effect.

2. This document sets forth the entire agreement between the Buyer and the Seller with respect to the purchase of materials.

3. This contract shall not be changed, altered or amended except in writing signed by both Buyer and Seller. All orders subject to approval by Seller’s Credit Department. Seller reserves the right to refuse any and all orders for any reason.

4. This contract shall not be modified, controlled, or affected in any way by any usage of trade not expressly included herein and shall not be subject to any course of dealings or usage of trade developed between Buyer and Seller prior to this contract or which may develop or be recognized subsequent to this contract.

5. If any provision of this contract is declared to be invalid or unenforceable by any tribunal, the remaining provisions of this contract shall not be affected thereby but shall remain valid and enforceable.

6. This contract shall be governed by and interpreted and construed under the laws of the state in which product is manufactured, currently Ohio. Any action filed for breach of this contract or to compel performance or enforcement of this contract shall be brought in the courts in the state in which product was manufactured.

7. The acceptance by Seller of Buyer’s late shipping performance shall not waive Seller’s right to claim damages for breach and shall not constitute waiver of the requirement of timely performance of any obligation remaining to be performed by Buyer.

8. In the event that it becomes necessary for Seller to employ counsel to collect any amount due and owing hereunder by Buyer, Buyer shall be responsible for the payment of reasonable attorney’s fees and cost incurred by Seller in that connection.

II. PRICE AND TERM OF PAYMENT

1. Unless otherwise specifically agreed in writing, all prices are F.O.B. Seller’s plant, at Seller’s price in effect at the time of shipment.

2. Buyer shall pay all freight charges and all sales, consumers and other taxes, lawfully assessed or levied and chargeable specifically to the transaction covered by the contract between Seller and Buyer.

3. Payment is due according to the terms set forth on the invoice. Buyer shall make full and complete payment for the material and any additional charges and taxes as noted in Section II.2., 30 days from date of invoice. A finance charge of 1 1/2% per month (annual percentage rate of 18%) will be added to the entire balance which remains unpaid after the payment due date.

4. All fabricated material not shipped in a timely manner, as determined at sole discretion of Seller, will result in the balance being billed. Customer will have 90 days from invoice date to pick up the remaining quantities. Material not shipped within ninety (90) days following the date of invoice become the property of Seller and Buyer forfeits any right or claim to material. Upon failure of the Buyer to make payment for such material as agreed, Seller may exercise its rights under sub-paragraph 5 hereof. Orders for STOCK products will be canceled if there is a period of no activity in any 30 consecutive days after planned delivery date.

5. Failure of Buyer to make any payment as provided herein shall constitute a breach hereof by Buyer. Upon such breach Seller may suspend deliveries until payment is made, and, at its option, may cancel the contract, and upon such cancellation Buyer will be liable to Seller for all damages sustained by it and, in the case of materials specially fabricated, for the full purchase price thereof.

6. Material ordered by mistake must be paid for whether taken or not. Buyer may not cancel order or make quantity changes after production is started.

7. Any Buyer’s change to quantities or planned delivery dates on accepted orders are subject to price changes and delivery schedule changes and Seller is released from all claims and/or damages as a result thereof.

III. SHIPMENT AND DELIVERY

1. Material will be shipped F.O.B. plant. Unless otherwise provided by Buyer, freight will be arranged by either Seller’s truck or Contract Hauler, with freight prepaid and invoiced to Buyer. Seller determines the method and routing of transportation. Changes in rates will accrue to the Buyer. Truck delivery will be made only on hard surface roads to curbside. Delay of trucks to or at jobsite past two hours will be charged to the Buyer.

2. Buyer must specify quantities, patterns, colors, and textures and advise when and where such materials will be required. Thereafter, Seller will advise Buyer of the Delivery schedule. All agreements for shipment of orders are only Seller’s best estimate of the service it can render and are dependent upon manufacturing conditions, scheduling of prior orders, and other contingencies. No material may be returned for credit.

3. If Buyer requests shipment by truck, Buyer must specify the method of unloading desired and shall promptly receive the material in accordance with such method of unloading or pay demurrage and other expenses arising from its, or its customer’s, failure to do so.

IV. TITLE AND RISK OF LOSS

1. Title to materials sold under this contract shall remain in Seller until such materials are paid for in full.

2. The materials that are the subject of this contract are for Buyer’s account and Buyer shall assume and bear the risk of loss of and damage to those materials from the time the materials are delivered to a carrier at the point of shipping regardless of whether the freight is prepaid.

V. WARRANTIES, DISCLAIMERS AND LIMITATIONS

1. Arcitell, LLC publishes written warranties for specific products. They may be found at www.arcitell.com. ARCITELL’S PUBLISHED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED FOR THE SPECIFIC PRODUCT(S) NAMED IN THE WARRANTIES. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED AND EXCLUDED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

2. In the event that materials do not conform to applicable specifications designated in Buyer’s order, whether the nonconformity is due to a patent or latent defect, Buyer’s recovery shall be limited to either the delivered cost of the materials or a credit in that amount. Except as provided in this paragraph, the warranties made by Seller do not cover consequential damages, and the liability of Seller is specifically limited as set forth in this paragraph.

3. Seller disclaims any liability resulting from improper cleaning of product. Recommended cleaning procedures are available upon request from the Seller. Further, Seller is not responsible for faulty specifications provided by Buyer or the improper use of its products with non-compatible materials.

4. When Buyer acknowledges receipt of material in good condition, no claim for shortage or damage or other patent defects will be accepted; otherwise, claims for shortage or damage must be presented within 48 hours after unloading of material, or such claims shall be deemed waived by Buyer. Claims for shortages or damages or other patent defects must be in writing and postmarked within 48 hours after unloading and must be accompanied by supporting evidence. Once units are fastened, modified, or cut, Seller is not responsible for color variation, chips, distortion of units, or any other defect.

5. Seller will not be responsible for delays in delivery due to inability to secure fuel or materials used in manufacture, strikes, lockouts, labor shortages, fires, floods, accidents, transportation conditions, wars, acts of God, or other causes beyond its control.

VI. MANUFACTURED MATERIAL

1. Fabrication of patterns or other materials to be specially manufactured shall not commence, nor can a delivery schedule be fixed, until Buyer has furnished approved drawings, written specifications and other information as required by Seller. Contracts for such materials shall be for an exact number, specified in writing, and Seller shall have no obligation to furnish materials in excess of such number.

2. All production and charges related thereto, including but not limited to non-stock orders, are the responsibility of Buyer once fabricated or molded. A specific availability date will be acknowledged by Seller; upon notification that product is available, shipment of all available units must occur within a reasonable amount of time determined solely by Seller, after which time an invoice for the acknowledged price of any unshipped material will be rendered. Buyer is responsible for payment whether material is taken or not.

3. The warranties, disclaimers and limitations provisions of this contract as set forth in Section V hereof, apply to all manufactured materials.

VII. LIENS

1. Whether or not payments are due or deliveries made, Seller, in addition to its other remedies, may file one or more liens and take all steps incident thereto, including filing of notices of intention to file a lien.

VIII. ACKNOWLEDGMENT

1. Buyer acknowledges that he has received, read, and accepted this contract when an order is acknowledged.

REVISED 1/2019 Arcitell, LLC