Terms & Conditions
Terms & Conditions
Set forth below are Arclin’s terms and conditions of sale (the “Terms and Conditions”) referred to on the face of the Arclin price list and/or invoice and upon which this sale is made and to which Customer and Arclin agree are as foll
(a) Customer shall order product using purchase orders, all of which are subject to the terms and conditions of these Terms andConditions. Arclin shall indicate plainly the Customer’s purchase order number on all bills of lading, invoices, and freight bills, andshall include in each shipment a record showing Arclin’s name, the contents of the shipment and Customer’s purchase ordernumber.
(b) When shipping, Arclin shall make no declaration of value to carrier except where the shipment is subject to released value ratingor customs requirements.
(c) All shipments are FCA (Incoterms 2010) Arclin’s facility.
(d) Charges will be applicable for short notice order changes.
Title to the product sold hereunder will pass from Arclin to Customer upon loading for transportation at Arclin’s facility, and all risk ofloss or damage in transit shall be borne by Customer.
Customer shall inform Arclin in writing of any shortage in product and of any product found to be defective within seven (7) daysafter receipt of such product in the case of a shortage and within fifteen (15) days after receipt of such product in the case of productalleged to be defective. Customer is prohibited from making any such claim after any part of the product has been changed from itsoriginal condition (except for reasonable test and inspection quantities). If Customer fails to inform Arclin within the specified period,Arclin will be deemed to have satisfactorily performed its obligations. Arclin’s invoice weights, volumes, sizes and rates, establishedin good faith, are to govern unless proved to the satisfaction of the Arclin to be erroneous.
4. PATENT INFRINGEMENT
Arclin shall not be liable for any infringement of patent through the use by Customer or others of the product or articles madetherefrom, either alone or in conjunction with other products.
5. END USE
Any recommendations made by Arclin concerning uses or application of any product are believed reliable, but Arclin makes norepresentation or warranty of results to be obtained. Final determination of the suitability of the product for the use contemplated byCustomer is the sole responsibility of Customer. Customer agrees that it is not relying on Arclin’s skill or judgment to select orfurnish the products covered under these Terms and Conditions. Customer agrees that Arclin has no reason to know of anyparticular purpose for which the products under these Terms and Conditions are to be used.
ARCLIN MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORYOR OTHERWISE, WITH RESPECT TO THE PRODUCTS SUPPLIED TO CUSTOMER UNDER THESE TERMS ANDCONDITIONS EXCEPT THAT (A) SUCH PRODUCTS SHALL NOT INFRINGE OR MISAPPROPRIATE THE INTELLECTUALPROPERTY RIGHTS OF ANY THIRD PARTY, (B) SUCH PRODUCTS SHALL BE FREE OF ANY CLAIM, LIEN ORENCUMBRANCE OF ANY NATURE BY ANY THIRD PERSON/PARTY, (C) ARCLIN HAS AND SHALL CONVEY CLEAN TITLEOF ALL SUCH PRODUCTS TO CUSTOMER, AND (D) ALL SUCH PRODUCTS SHALL BE NEW AND OF MERCHANTABLEQUALITY FREE FROM ALL DEFECTS IN DESIGN, WORKMANSHIP AND MATERIALS AND OF THE QUALITY ANDSPECIFICATIONS STATED ON THE PURCHASE ORDER AND/OR INVOICE.ARCLIN MAKES NO WARRANTY AND OFFERS NO ASSURANCE OR GUARANTEE, EITHER DIRECT OR IMPLIED, AS TOTHE EFFECTIVENESS OR SUITABILITY OF ITS PRODUCTS TO PROTECT FROM FIRE, WATER OR ANY OTHER DAMAGE,WHETHER ANTICIPATED OR FORESEEN. IT IS THE CUSTOMER’S SOLE RESPONSIBILITY TO DETERMINE THE USE OFTHE PRODUCTS THAT IT PURCHASES FROM ARCLIN AND WHETHER SUCH USE IS APPROPRIATE. CUSTOMERAGREES TO ASSUME ALL RISK AND LIABILITY WITH REGARD TO ITS USE OF THE PRODUCTS, AS DETAILED INSECTION 7 BELOW.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER REPRESENTATIONS ANDWARRANTIES, EXPRESS OR IMPLIED. ARCLIN EXPRESSLY DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ARCLIN SHALL NOT BE SUBJECT TO ANY OTHEROBLIGATIONS OR LIABILITIES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR FAULT), STRICTLIABILITY OR ANY OTHER LEGAL THEORY, WITH RESPECT TO THE PRODUCTS SOLD BY ARCLIN.
7. LIMITATION OF LIABILITY
(a) Customer assumes all risk and liability for loss, damage or injury to persons or property of Customer or others arising out of theuse or possession of any product sold hereunder. Customer and Arclin shall each use its reasonable best efforts to mitigate anysituation causing a breach of these Terms and Conditions so as to minimize the damages of the other party hereto.
(b) ARCLIN EXPRESSLY DISCLAIMS LIABILITY FOR, AND IN NO EVENT SHALL ARCLIN BE LIABLE HEREUNDER OROTHERWISE FOR PERSONAL INJURY DAMAGES, PENALTIES, COST OF CAPITAL, LOST PROFITS OR REVENUES, LOSTSAVINGS, DOWNTIME COSTS, COST OF CAPITAL, LOSS OF REPUTATION OR GOODWILL, LOSS OF USE OF A PLANT,CLAIMS RESULTING FROM CONTRACTS BETWEEN CUSTOMER AND ITS CUSTOMER AND/OR SUPPLIERS, EQUIPMENTOR ANY OTHER ECONOMIC LOSS OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IFARCLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL RECOVERY OF ANY KIND AGAINSTARCLIN BE GREATER IN AMOUNT THAN, AND CUSTOMER AGREES THAT IT IS LIMITED TO THE SOLE AND EXCLUSIVEREMEDY AND MEASURE OF DAMAGES OF REPAYMENT OF, THE PURCHASE PRICE OF THE SPECIFIC PRODUCT SOLDAND ALLEGED TO HAVE CAUSED DAMAGE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORMOF ACTION AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR FAULT), STRICT LIABILITY ORANY OTHER LEGAL THEORY. ARCLIN AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THE EXCLUSIONS OFREMEDIES AND LIMITATIONS OF LIABILITY AND DAMAGES HEREIN REFLECT A BARGAINED-FOR ALLOCATION ANDLIMITATION OF RISK, LIABILITY AND DAMAGES.
(c) CUSTOMER COVENANTS AND AGREES THAT IT SHALL DEFEND, INDEMNIFY AND HOLD ARCLIN AND ITS OFFICERS,DIRECTORS, MANAGERS, EMPLOYEES, OWNERS, AFFILIATES, AGENTS AND OTHER REPRESENTATIVES(COLLECTIVELY THE "INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, CLAIMS, LOSSES,EXPENSES, COSTS, OBLIGATIONS, AND/OR LIABILITIES, INCLUDING ATTORNEY'S FEES AND EXPENSES, SUFFEREDBY AN INDEMNITEE BY REASON OF, OR ARISING OUT OF (I) ANY FAILURE BY CUSTOMER OR ANY CUSTOMERAFFILIATES TO PERFORM OR FULFILL ANY OF ITS COVENANTS OR AGREEMENTS SET FORTH IN THESE TERMS ANDCONDITIONS, (II) ANY LITIGATION, PROCEEDING OR CLAIM BY ANY THIRD PARTY RELATING IN ANY WAY TO THEOBLIGATIONS OF CUSTOMER OR ANY CUSTOMER AFFILIATE UNDER THESE TERMS AND CONDITIONS, OR (III) ANYBREACH OF ANY APPLICABLE LAW, WILLFUL MISCONDUCT OR NEGLIGENT ACT OR OMISSION BY CUSTOMER, ANYCUSTOMER AFFILIATE, ANY SUBCONTRACTOR OF THE CUSTOMER OR A CUSTOMER AFFILIATE, AND ANY OF THEIRRESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PERSONS FOR WHOM THEY ARE AT LAWRESPONSIBLE.
(d) CUSTOMER AGREES THAT IT IS A SOPHISTICATED PURCHASER AND USER OF THE PRODUCTS COVEREDUNDER THESE TERMS AND CONDITIONS. CUSTOMER FURTHER AGREES THAT ARCLIN IS SUPPLYING THE PRODUCTSCOVERED BY THESE TERMS AND CONDITIONS IN BULK AND IT IS IMPRACTICABLE FOR ARCLIN TO SUPPLY ANYWARNING INFORMATION ABOUT THE POTENTIAL RISKS OF THE PRODUCTS TO ANYONE OTHER THAN CUSTOMER.
8. DISPUTE RESOLUTION
(a) The parties hereto agree that the exclusive means to resolve any dispute, controversy or claim, whether directly or indirectlyrelated to these Terms and Conditions or any past or future business relationship between the parties hereto, shall be as follows:(1) The parties hereto will attempt in good faith to resolve any controversy or claim by promptly conferring in negotiations betweenrepresentatives of the parties hereto who have authority to settle the controversy. The parties hereto agree to exchange memorandastating (i) the issues in dispute and their positions, and (ii) the name and title of the representative of the party hereto. If the matter isnot resolved by conference of the representatives, either party hereto may initiate arbitration as set forth below.(2) Any dispute, controversy or claim which cannot be resolved amicably by the parties hereto in accordance with the proceduresdescribed in paragraph (1) above shall be solely and finally settled by arbitration administered by the American ArbitrationAssociation (“AAA”) under its commercial arbitration rules, or in the case of customers located outside the United States,administered by the International Centre for Dispute Resolution (“ICDR”) under its International Arbitration Rules, and judgment onthe award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Except as may be required by law,neither party hereto nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the priorwritten consent of both parties hereto. The arbitration shall take place before a panel of three arbitrators sitting in New York City,New York. The parties hereto each will select one arbitrator within 30 days of the receipt by respondent of a copy of the demand forarbitration. The two arbitrators so appointed shall nominate the third and presiding arbitrator (the “Chair”) within 30 days of theappointment of the second arbitrator. If either party hereto fails to appoint an arbitrator, or if the two-party appointed arbitrators fail toappoint the Chair, within the time periods specified herein, such arbitrator shall, at the request of either party hereto, be appointedby the AAA. The decision of the arbitrators shall be in writing and shall be final and binding on the parties hereto. The arbitratorsshall be empowered to award money damages, but shall not be empowered to award punitive damages, exemplary damages,consequential damages, incidental damages or specific performance.
(b) Either party hereto shall be entitled to recover any reasonable attorney’s fees and costs incurred in enforcing this Section 8.Otherwise, each party hereto shall bear all of its own costs relating to the arbitration proceeding irrespective of its outcome.
(c) The parties hereto expressly agree that these Terms and Conditions, including section 8, involves and concerns interstatecommerce and its interpretation shall be governed by the Federal Arbitration Act (9 U.S.C. § 1, et seq.) (“FAA”), to the exclusion ofany different or inconsistent state or local law, ordinance or judicial rule. This section 8 is self-executing. Any disputes concerningthe interpretation or enforceability of this section 8, including without limitation, its revocability or voidability for any cause, the scopeof the arbitrable issues, and any defense based upon waiver, estoppel or laches, shall be decided by the arbitrator.
(d) This section 8 provides the sole recourse for the resolution of any dispute, controversy or claim now in existence or that mayarise in the future. Pursuant to this section 8, both parties hereto expressly waive their right to a jury trial, class action orconsolidation, and neither party hereto shall be entitled to join or consolidate disputes by or against others in any arbitration, or toinclude in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of thegeneral public or in a private attorney general capacity.
(e) By agreeing to arbitration, the parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, prearbitralattachment, or other order in aid of arbitration proceedings. In any such action: (1) each of the parties hereto irrevocably andunconditionally consents and submits to the exclusive jurisdiction and venue of the Courts of the State of New York and the FederalCourts of the United States of America located within the Southern District of the State of New York (the “New York Courts”); (2)each party irrevocably waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying ofvenue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place ofincorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceedings in any New YorkCourts; and (3) each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested,postage prepaid. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitraltribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate anytemporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitraltribunal’s orders to that effect.
9. DELAY/FORCE MAJEURE EVENTS
(a) At the outset of any delay from any cause, including but not limited to force majeure events, Arclin shall promptly notifyCustomer’s designated representatives by telephone or email of the delay or anticipated delay and shall undertake to shorten thedelay by all commercially reasonable means.
(b) Arclin shall not be liable for non-performance or delay in performance outside of its exclusive or whole control (including, but notlimited to, acts of God, severe weather (e.g., hurricanes, floods, tornadoes, etc.), delays in transportation, shortages of materials,plant shutdown due to lack of supplies, equipment failure, regulatory or other forced the curtailment of all business, strikes, lockouts,work stoppages or other labor curtailment of all business, governmental action, acts of war or civil unrest and embargoes orany other event not wholly or exclusively in Arclin’s control). Upon the occurrence of any such contingency, Arclin may, at its option,suspend or reduce deliveries under these Terms and Conditions during the period of such contingency, with the total quantitydeliverable under these Terms and Conditions being reduced by the quantities so omitted.
10. QUALITY AND STANDARDS
(a) Arclin shall furnish products under these Terms and Conditions in conformance with the agreed upon specifications. If Customerdoes not provide written specifications regarding the quality of a product, the product furnished by Arclin will conform in materialrespects to applicable industry standards.
(b) In furnishing the product hereunder, Arclin shall comply in all material respects with all U.S. and Canadian standards (includingbut not limited to federal, state, provincial, local or international standards with U.S. or Canadian application) applicable to Arclin atthe time of delivery.
11. SAFETY INFORMATION
(a) Arclin shall provide Safety Data Sheets for each of the products sold hereunder and shall label each of the products as requiredby applicable government regulations or standards. Customer acknowledges receipt of any applicable Safety Data Sheets andacknowledges that there are hazards associated with the products to be delivered pursuant hereto.
(b) Arclin shall provide available health and safety related information, such as toxicological data, that Customer may reasonablyrequest to enable the Customer to comply with all applicable federal, provincial, and municipal statutes, regulations, rules andordinances relating to Customer’s use of the products.
(c) Customer assumes the responsibility of warning and training its employees, representatives, independent contractors and anyother person in any way connected with, using or handling the products to be delivered pursuant hereto of all hazards of whichCustomer is, reasonably should be or may become, aware, including those which are or may in the future be disclosed in theMaterial Safety Data Sheets.
12. PAYMENT/CUSTOMER’S CREDIT
(a) Payment terms are Net Thirty (30) days from the date of the invoice from Arclin. If Customer fails to make any payment duehereunder within ten (10) days of due date of such payment, a written notice of default will be provided to Customer. If Customerfails to remedy the situation within five (5) days, then Arclin shall have the exclusive right to withhold or cancel any order orshipment.
(b) If the financial position of Customer becomes impaired or unsatisfactory to Arclin, or Customer is in default to Arclin under theseTerms and Conditions or any other agreement, (1) Customer shall, at Arclin’s election and specification, give advance cash paymentor satisfactory security to Arclin; (2) Arclin may withhold any shipment of product until Arclin receives the specified payment orsecurity; and (3) Customer shall not make any deductions (including but not limited to those for alleged damages) from paymentsthen due Arclin under these Terms and Conditions.
Unless specifically stated on the face of the Arclin price sheet and/or invoice to which these Terms and Conditions are attached,prices set out exclude customs duties, sales taxes or other charges levied directly upon the production, sale or transportation of thegoods sold hereunder. Any prices that include such customs duties, sales tax and charges will be based on rates in effect on thedate hereof and may from time to time be increased or decreased by any increase or decrease in such rates after such date.
All proprietary and confidential information exchanged between Arclin and Customer in connection with the activities contemplatedherein, whether in oral, written or other form (including allowing the other party to observe its operations), including but not limited topricing information, data, trade secrets or know how, processes, methods, concepts, ideas, programs, equipment, technology,apparatus, prototypes, business plans and sales information shall be treated as confidential information of the disclosing party, andthe receiving party shall not, during the term of these Terms and Conditions, or for a period of five (5) years after termination ofTerms and Conditions, use such information for any purpose other than in furtherance of Terms and Conditions, or disclose suchinformation to any third party without the prior written approval of the disclosing party, unless such information: (i) has become publicknowledge through no fault of the party receiving such information; (ii) comes to such party from a third party under no obligation ofconfidentiality with respect to such information; (iii) was in the possession of the receiving party prior to the date of disclosure; (iv)was independently developed by the receiving party, without reference to any information or materials disclosed by the disclosingparty, as evidenced by the receiving party’s written records; or (v) is required to be disclosed by law, regulation or legal process,provided that the party so required to disclose information shall give the other party sufficient notice of the proposed disclosure toseek a protective order for such information. The parties agree that a violation by either party of the provisions of this section 14would cause irreparable injury to the other party, and there is no adequate remedy at law for such violation. Accordingly, the partieshereto agree that, notwithstanding anything to the contrary herein, each party shall have the right in addition to any and all otherremedies available at law or in equity, to equitable relief, including but not limited to the right to specific performance and to enjointhe other party in a court of equity from violating such provisions (without the necessity of the posting of any bond or similarrequirement), and the parties hereto hereby waive any and all defenses they may have on the ground of damages as an adequateremedy at law. The existence of this right shall not preclude any other rights and remedies at law or in equity which the parties mayhave.
15. DOMESTIC SALE OF GOODS LAWS
Domestic sale of goods laws, and not the United Nations Convention on Contracts for the International Sale of Goods, shall apply tothese Terms and Conditions.
16. CHOICE OF LAWTHESE TERMS AND CONDITIONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OFTHE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT-OF-LAWS PRINCIPLES.
If either party hereto waives any default by the other under these Terms and Conditions or waives the performance of any provisionhereof, such waiver will not constitute a waiver of any other default or of the performance of any other provision of these Terms andConditions by the other, nor a continuing waiver of the same default or of the subsequent performance of the same provision ofthese Terms and Conditions, unless the waiver states specifically that it will continue to the completion of these Terms andConditions.
18. RIGHTS CUMULATIVE
All rights and remedies of Arclin and Customer under these Terms and Conditions are in addition to other rights and remedies andare cumulative, not alternative.
19. TRANSFER AND ASSIGNMENT
Customer may not transfer or assign these Terms and Conditions without Arclin’s written consent (which consent shall not beunreasonably withheld).
All headings in these Terms and Conditions are for convenience of reference only and shall not be deemed part of the content ofthese Terms and Conditions or affect the meaning or interpretation of these Terms and Conditions.
21. TOTAL UNDERSTANDING
These Terms and Conditions and any price sheets and/or invoices constitute the entire understanding between the Customer andArclin with respect to the subject matter hereof. Except as set forth in Section 22, these Terms and Conditions will be consideredthe final agreement between Customer and Arclin, and no other document will supersede, modify or supplement these Terms andConditions, including but not limited to, a Customer purchase order or other document issued by Customer regarding a purchasefrom Arclin, unless Customer and Arclin specifically agree in writing that such document supersedes, modifies and/or supplementsthe terms of these Terms and Conditions.
These Terms and Conditions may be modified, superseded or otherwise altered by Arclin at any time, notwithstanding any terms orconditions that may be contained in any purchase order, supply agreement, acknowledgment or other document or instrumentreceived, and such amended terms shall apply to all future orders of products once the amended Terms and Conditions areprovided to Customer.
The parties hereto have expressly required that these Terms and Conditions and all documents, agreements and notices relatedhereto be drafted in the English language.
Effective: July 2017