ARBORTECH GENERAL TERMS AND CONDITIONS OF SALE
Rev. Date: 06/2024
1. Order
The Seller’s acceptance (Seller being Stahl/Scott Fetzer Company) of any order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth below. Any additional or different terms and conditions submitted by Buyer shall be deemed objected to by Seller and shall be of no effect nor in any circumstances binding upon Seller unless accepted by Seller in writing. If Buyer objects to any of the terms and conditions said objections must be specifically brought to the attention of Seller by Buyer by a written instrument separate from any purchase order or other printed form of Buyer. Said objections shall be deemed proposals for different terms and conditions and may be accepted only by a writing executed by an authorized representative of Seller at its offices in Wooster, Ohio, U.S.A.
2. Prices & Transportation
Seller’s published prices, quoted prices, terms of payment, including discounts, and transportation terms shall apply.
3. Taxes
Liability for all present or future Federal, State, Municipal or other sales, property, use or excise taxes, license fees or other fees imposed by or payable to any governmental authority, including any department, agency or subdivision
thereof, upon the production, sale, shipment and/or use of the equipment, material or services covered hereby shall be assumed and paid for by Buyer and Buyer shall indemnify the Seller against any such liability. Applicable sales and/or use taxes will be billed by the Seller unless suitable exemption certificate is furnished by Buyer at time of placing order. If Seller pays any such taxes, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
4. Shipment, Risk of Loss, Delivery and Storage
Shipment of the equipment and material shall be made EXW Seller’s facility (Incoterms 2020), and title and risk of loss of the equipment and material shall pass to Buyer EXW Seller’s facility (Incoterms 2020), unless otherwise expressly indicated in a writing signed by Seller. Unless Buyer specifies in writing the desired method of transportation (air express, motor freight, etc.), within a reasonable period of time before the date scheduled for shipment, Seller will use its judgment in selecting the carrier and route. Delivery schedules are estimated, and Seller assumes no responsibility for delays. In the absence of agreed shipping dates, Seller may invoice Buyer and ship the goods once they are ready for shipment. If, because of Buyer’s refusal or inability to take delivery on a mutually agreed delivery date, the goods are not shipped, are not picked up by Buyer, are stopped in transit or are returned, Seller may invoice Buyer for said items, and hold them at Buyer’s risk and expense pending instructions from Buyer, and the date such items are placed into storage shall constitute the date of shipment for purposes of beginning the warranty and payment periods. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Seller shall not be liable for any claim, loss, expense or damage of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damages shall be made solely against the carrier.
5. Performance of Services
Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
6. Terms of Payment
Invoices shall be due and payable within thirty (30) days of the invoice date, expressly indicated in a writing signed by Seller. Payments not made within thirty (30) days are subject to a finance charge of 1-1/2% (or the maximum rate as permitted by law, if lower) of the outstanding balance each month or part thereof until paid.
7. Financial Responsibility of Buyer
If at any time before shipment the financial responsibility of Buyer becomes impaired, or unsatisfactory to the Seller, cash payment or satisfactory security may be required by the Seller before shipment. Buyer will cooperate with the Seller in complying with any applicable conditional sale or security law and will furnish the Seller such other assurances, including financing statements, as the Seller may reasonably request. If Buyer shall fail to make payments in accordance with the terms herein specified, Seller, in addition to its other rights and remedies, may at its option terminate shipment. In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, the Seller shall be entitled to cancel any order then outstanding and shall receive reasonable and proper cancellation charges.
8. Cancellations & Changes
Orders may not be cancelled by the Buyer without the prior written consent of the Seller. Buyer may request a change in (a) the specifications, including drawings and data; (b) method of packing and shipment: (c) date for performance. Any request needs approval from the Seller. If such changes would result in increased costs or time to complete the performance of the contract, Seller shall submit a proposal identifying the price and schedule for which the change can be implemented. Buyer may accept said proposal at any time within the acceptance period specified therein, and if acceptable to Buyer, the contract shall be modified accordingly.
9. Buyer’s Acts or Omissions
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Returned Goods
Buyer shall inspect the goods upon receipt and services upon performance, and Buyer shall immediately notify Seller in writing of any claims that the goods or services are different than identified in Buyer’s purchase order whereupon Seller shall determine the remedy pursuant to Section 13. Failure to give such written notice upon receipt will constitute irrevocable acceptance by Buyer of all equipment, material and services. Seller will guarantee acceptance of returned goods if Seller shipped a defective or incorrect good. Seller will only accept returns accompanied by a Returned Goods Authorization (RGA) number. RGA numbers are issued by Seller’s RGA Coordinator. The RGA number must be clearly marked on the outside of the packaging, and a copy of the RGA form must be included with the returned item. RGA numbers are valid for 30 days from date of issue – no credit will be issued after 30 days. Seller will accept the return of standard “like new” goods within 30 days of invoicing with prior approval and authorization. A 25% restocking charge will be applied to all returned items. RGA numbers can be requested from Seller’s RGA Coordinator by contacting Sales (or Parts) for assistance. Freight is the responsibility of Buyer. Credit amount, if any, will be determined based on Seller’s inspection of returned items. Seller will not accept returns of special, obsolete, or damaged items. With respect to the returned goods, Seller shall not be liable for any claim, loss, expense or damage of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damage to the returned goods in transit shall be made solely against the carrier.
11. Catalog and Illustrations; Tooling
The illustrations and descriptions in Seller’s catalogs and specification sheets are intended to show general features of the equipment, however, Seller reserves the right to supply equipment of the latest design and construction. Unless otherwise agreed in a writing signed by Seller, Buyer shall have no interest in any tools, jigs, dies, patterns, etc. (collectively, “Tooling”) which is made or obtained for the production of the Deliverables, and any such Tooling shall remain the property of Seller.
12. Termination
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (d) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to performance and Buyer is unable to provide Seller with adequate assurance within 10 days after written request therefor by Seller. Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.
13. Warranty
See applicable warranty supplied by Seller under Seller’s General Warranty Terms Stahl / Arbortech Warranty Policy or specific to the equipment purchased by Buyer. THESE ARE SELLER’S ONLY WARRANTIES. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINEGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. If during the warranty period, Buyer notifies Seller in writing that the goods or services are not in conformity with the warranty and Seller agrees, after Seller’s inspection (at its option), then: (a) for goods, Seller will repair, replace or refund the total amount received by Seller therefor, at its sole option, provided Buyer returns such goods to Seller’s plant for inspection; and (b) for services, Buyer’s sole remedy is for Seller, at its sole option, to re-perform the Services or credit Buyer’s account therefor. These shall be Buyer’s exclusive remedies for Seller’s liability. Any claims not made during the warranty period are deemed waived.
14. Limitation of Liability
SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE RECEIVED BY SELLER FOR THE GOODS AND/OR SERVICES WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED. Any contract created between Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer, and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract.
15. Confidentiality
All non-public or proprietary information of Seller, including all IP (as defined below), quotations and pricing information, is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized by Seller in writing.
16. Assignment
Buyer shall not have the right to assign any right or interest in any contract between Seller and Buyer without prior written consent of Seller.
17. Tender
In the event of failure or refusal of Buyer to accept delivery, no physical tender of the equipment or material by the Seller shall be necessary, but written notice of the Seller’s readiness and willingness to deliver any quantity of the equipment or material at any time specified shall be equivalent to physical tender thereof.
18. Proprietary Data
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other information or intellectual property disclosed or otherwise provided to Buyer by Seller and all rights therein (collectively, “IP”) are and will remain the property of Seller. Buyer shall have no claim to, nor ownership interest in, any IP and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any IP, other than the limited right to use the Deliverables purchased from Seller.
19. Assistance
Seller may, but shall have no obligation to furnish Buyer with recommendations, engineering and technical information and advice and other assistance. All such assistance is furnished without charge solely as an accommodation to Buyer and the Seller shall have no liability for inaccurate, incomplete or faulty recommendations, information, advice and assistance, whether or not negligent.
20. Force Majeure
The Seller shall not be liable for any delay in or failure to perform caused by fires, floods, acts of God, strikes, labor disputes, labor shortages, lack of or reasonable inability to obtain materials, fuel, supplies, or other equipment, riots, thefts, accidents, transportation delays, acts or failure to act of government or Buyer, delay in obtaining licenses or required permits, unusually severe weather, or any other cause whatsoever, whether similar or dissimilar so those enumerated above, beyond the reasonable control of the Seller. In the event of any delay arising by reason of the foregoing, the time for performance shall be extended by a period of time equal to the time lost by reason of such delay. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of goods among itself and its purchasers in such manner as Seller, in its sole judgement, deems fair and equitable.
21. Non-Waiver; Severability
The failure or delay by Seller in exercising any right, power or privilege hereunder shall not operate as a waiver thereof, preclude any other or further exercise thereof, nor preclude the exercise of any right, power or privilege hereunder. All waivers by Seller shall be in writing. The unenforceability or invalidity of any clause in these Terms shall not have an impact on the enforceability or validity any other clause in these Terms. Any unenforceable or invalid clause shall be regarded as removed from these Terms to the extent of its unenforceability and invalidity.
22. Sale Export Taxes
Liability for all present or future taxes, license or other fees imposed by or payable so any country other than the U.S.A., including any department, agency or subdivision thereof, upon the production, sale, shipment and/or use of equipment, material or services shall be assumed and paid for by Buyer and Buyer shall indemnify the Seller against any such liability.
23. Governmental Limitations & Licenses; Export Control and Sanction Laws
This contract is subject in part to applicable governmental laws, regulations and rules of the Government of the United States, including departments, agencies and subdivisions thereof, and of the country in which the equipment, material and/or services so be sold will be installed, used, or performed. Should any governmental authority prohibit the performance of this contract, in whole or in part, or if the exportation or importation of the equipment and material which are the subject of this contract be precluded because of the inability, within a reasonable time, to obtain an export or import license therefore, as appropriate, then the Seller’s obligations under this contract shall be expunged, at the Seller’s option, and the Seller shall be entitled to reasonable termination charges for the cancellation of this contract. It shall be the Buyer’s responsibility to provide any required applications, documentation, or other similar action which may be necessary on the part of the Buyer to obtain any required license(s) to export from the United States or import into the Buyer’s country. These documents as applicable may include but not necessarily be limited to, U.S. Government Form ITA629, International Import Certificate, Country End User Certificate and Import License. Buyer will comply with all applicable export controls and sanctions laws of the United States and other countries and jurisdictions (including, but not limited to, the Export Administration Regulations, 15 C.F.R. §§730-774, the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, and sanctions programs implemented by OFAC) while conducting activities under this Agreement and will not engage in any activities or transactions that would violate or cause the Seller to violate applicable export controls and sanctions laws.
24. Governing Law; Arbitration
Regardless of the place of contracting, place of performance or otherwise, the rights and obligations of Seller and Buyer with respect so this contract and all amendments, modifications, alterations or supplements thereto, shall be governed by the laws of the State of Ohio, U.S.A., excluding any such law(s) which direct the application of the laws of any other jurisdiction. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, which cannot be settled within ninety (90) days of first arising shall be finally settled by binding arbitration in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association before three (3) arbitrators appointed in accordance with said rules. Arbitration shall be held in Cleveland, Ohio, U.S.A. and shall be conducted in the English language. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof or application may be made to such court for judicial acceptance thereof and an order for enforcement, as the case may be.
STAHL
3201 W. Old Lincoln Way • Wooster, OH 44691 • P: 1.800.277.8245
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