Arc3 Gases, Inc. Terms and Conditions of Sale
- Exclusivity of Terms and Conditions: Except as may be provided in a separate agreement signed by both parties, these Terms and Conditions of Sale (“Terms”) shall apply to all sales transactions between Arc3 Gases, Inc. (“Arc3”) and a customer (including a customer’s owners, directors, officers, agents, representatives, employees, contractors, insurers, successors, assigns, and/or any other entity for whom a customer may be legally responsible) (collectively, “Customer”). Arc3 will accept purchase orders, sell Products and Services, and conduct business only on these Terms. Unless otherwise agreed to in a writing signed by Arc3, these Terms are incorporated by reference into any purchase order or other document(s) that evidences a sales transaction between Arc3 and Customer (“Contract”), and Arc3 expressly rejects any terms or conditions contained in any Customer document or Contract that are inconsistent with these Terms.
- Products and Services: “Products” shall mean any and all tangible items that Arc3 provides to Customer, including, without limitation, liquid and gaseous products and welding and cutting machines, accessories, supplies, or apparatus, and cylinders and cryogenic containers, whether purchased, leased or borrowed from Arc3. “Services” shall mean any and all services that Arc3 performs for Customer.
- Ownership of Products: Arc3 shall own and retain a purchase money security interest in Products until Customer has paid the full price for them. If Customer defaults in any payments, Arc3 may exercise any of its rights as a title holder and secured party, including repossessing Products. Customer shall execute whatever financing statements Arc3 may ask Customer to execute. Customer shall not allow any alteration or modification of any Products and shall keep Products free and clear of all levies, liens and encumbrances unless and until Customer has paid the full purchase price for purchased Products and while Customer is renting Products. Customer shall timely pay all federal, state, and local taxes (including property taxes) currently or subsequently assessed upon the Products sold or delivered, and all federal, state, and local taxes measured or determined in whole or in part by sales or deliveries of Products (other than Arc3’s income taxes). If Arc3 pays such taxes, Arc3 will charge such payments to Customer’s account and they will become payable then.
4(a). Customer’s Duty Regarding Unmarked Cylinders or Illegible Labels: Customer shall not accept, handle or use any purchased or rented cylinders that are not marked with legible labels identifying their contents, and shall instead immediately return such cylinders to Arc3 in exchange for replacement cylinders or for identification and proper marking of the returned cylinders, at Arc3’s election. If Customer uses a cylinder that is not marked with a legible label identifying its contents, such use shall void all warranties and release Arc3 from all liability caused in whole or in part by such use, and Customer agrees to defend, indemnify and hold Arc3 harmless for all liability arising from such use.
- Delivery and Installation of Products: Unless otherwise agreed to in writing, delivery shall be FOB Arc3’s point of shipment, and risk of loss and title to Products shall pass to Customer upon delivery of the Products to the carrier for shipment. Arc3 shall use commercially reasonable efforts to fill Customer’s order within the estimated time quoted, but in no event shall Arc3 be liable for any damages associated with Arc3’s inability to meet any estimated timeframes or deadlines. If Customer asks Arc3 to deliver a Product during a strike or other concerted act of workers affecting Customer, then Customer assumes all risk for such a delivery, Customer shall provide for Arc3’s safety during such delivery, and Customer agrees to defend, indemnify and hold Arc3 harmless for any and all liability arising from such delivery, including damages for any personal injury (including death) and any property damage or destruction. If installation is included in the sale of a Product or system, and Customer delays Arc3’s installation process, Customer agrees to pay for the extra installation time at Arc3’s then current rates.
- Payment Terms: Unless otherwise agreed to in writing, Customer shall pay Arc3 in full within thirty (30) days of Arc3’s invoice date. Arc3 shall charge Customer interest on any overdue balance at one and one-half percent (1.5%) per month or the highest rate that the law permits, whichever is greater. If Arc3 incurs any costs or fees to collect any overdue amount Customer owes Arc3 and/or to repossess a Product, then Customer shall reimburse Arc3 for all such costs or fees (including attorneys’ fees and court costs) in addition to the amount Customer owes Arc3. If Arc3 has extended credit to Customer, that credit is subject to Arc3’s assessment
- Customer’s Duty to Inspect and Notify Arc3 of Defects, and to Notify Arc3 of Incidents: Customer shall thoroughly inspect each Product within 24 hours after delivery and immediately notify Arc3 of any defects or unsafe conditions. If Customer continues to use a Product after discovering a defect or unsafe condition, such use shall void all warranties and release Arc3 from all liability caused in whole or in part by such use, and Customer agrees to defend, indemnify and hold Arc3 harmless for all liability arising from such use. Customer further agrees to immediately notify Arc3 of any injury or death to persons and/or destruction or damage to property that occurs during Customer’s use, storage, handling or transporting of a Product so Arc3 can investigate the occurrence.
- Customer’s Duty to Review Safety Information and Warn Others: Customer acknowledges and accepts its duty to review Safety Data Sheets and product-specific safe handling instructions and warnings that describe the Products and how to handle them safely. Customer also acknowledges that it has full knowledge of the potential hazards associated with storing, distributing and using the Products, including the danger of asphyxiation in an Oxygen-deficient environment in connection with CO2 products. Customer also assumes the duty to warn its personnel and all other third parties on its premises of such potential hazards.
- Arc3’s Warranty Disclaimer, Customer’s Exclusive Remedies and Agreement to Not Bring Suit, and Arc3’s Damages Limitation.The only warranty that applies to a Product is the Product manufacturer’s warranty, if any, and Arc3’s warranty that, at the time of delivery, the Product will conform to Arc3’s specifications for the period of time specified, if any, or for ninety (90) days. The only warranty that applies to a Service is that Arc3 will perform the Service in a workmanlike manner in accordance with specifications. EXCEPT WHERE THE LAW FORBIDS DISCLAIMING SUCH WARRANTIES, ARC3 DOES NOT OFFER ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPOSED BY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER AGREES NOT TO CLAIM OR COMMENCE SUIT AGAINST ARC3 BASED ON ANY SUCH DISCLAIMED WARRANTIES. Customer’s remedies with respect to Products, or with respect to any alleged breach of or default under these Terms and Conditions (including any breach of warranty), shall be limited exclusively to those remedies a Product’s manufacturer provides, if any, OR, IF ARC3 SELLS CUSTOMER A NONCONFORMING PRODUCT, ARC3 WILL REPLACE THE PRODUCT WITH A CONFORMING PRODUCT AT NO COST TO CUSTOMER OR REFUND CUSTOMER THE PURCHASE PRICE, AT ARC3’S ELECTION. IF ARC3 PERFORMS A SERVICE THAT DOES NOT CONFORM TO SPECIFICATIONS, ARC3 WILL RE-PERFORM THE SERVICE AT NO COST TO CUSTOMER OR REFUND CUSTOMER THE PURCHASE PRICE OF THE NONCONFORMING PORTION OF THE SERVICES, AT ARC3’S ELECTION. THESE ARE CUSTOMER’S EXCLUSIVE REMEDIES. EXCEPT WHERE THE LAW FORBIDS SUCH DISCLAIMERS OR LIMITATIONS, IN NO EVENT SHALL ARC3 BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR COLLATERAL DAMAGES, LOST PROFITS, LOST REVENUE, ECONOMIC LOSSES, OR SPECIAL DAMAGES OF ANY NATURE WHICH MAY ARISE IN CONNECTION WITH PRODUCTS OR SERVICES OR ANY BREACH OF OR DEFAULT UNDER THESE TERMS AND CONDITIONS. IN NO EVENT BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHER GROUNDS, SHALL ARC3’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCT WITH RESPECT TO SUCH CLAIM IS MADE.
- Arc3’s Disclaimer Regarding Technical Advice: Unless otherwise agreed to in writing, Arc3 does not charge for its technical advice, Customer is solely responsible for selecting the most appropriate Products and Services for Customer’s specific applications, AND ARC3 DOES NOT WARRANT OR ASSUME ANY OBLIGATION OR LIABILITY FOR ANY TECHNICAL ADVICE OR FOR ANY RESULTS OCCURING AS A RESULT OF CUSTOMER USING A PRODUCT, SERVICE, OR ARC3’S ADVICE.
- Customer’s Agreement to Defend, Indemnify and Hold Arc3 Harmless: To the fullest extent the law allows, Customer agrees to defend, indemnify and hold Arc3 harmless from and against any and all claims, suits, losses, damages, liabilities, judgments, awards, costs, and expenses (including, without limitation, attorneys’ fees) resulting from any injury (including death) to any entity, person, or property which arises out of or relates in any way to Customer’s possession or use of Products where the claim’s basis is anything other than Arc3’s sole negligence.
- Force Majeure: Arc3 shall not be liable for any delay in performance by reason of strike, shortage, riot, insurrection, fire, flood, storm, explosion, earthquake, telecommunications outage, act of God, war, act of terrorism, governmental action or any other cause which is beyond Arc3’s reasonable control. In the event of any such delay, Arc3’s performance shall be postponed by such length of time as may be reasonably necessary to compensate for the delay. If such a force majeure event affects only a part of Arc3’s ability to provide Products, Arc3 may allocate sales or rental of Products between all of Arc3’s Customers and Arc3’s own needs in a fair and reasonable manner. Customer agrees to pay or reimburse Arc3 for any additional costs Arc3 incurs relating to the supply of Products to Customer during a force majeure event.
- Confidentiality: All documents and computer screen shots provided to either party in connection with a sales transaction, and the information contained in such documents and screen shots are proprietary and confidential to the disclosing party and may constitute trade secrets. The receiving party therefore agrees to not reproduce or distribute such materials to third parties unless legally required. Unless otherwise agreed in writing, the receiving party shall keep all such information confidential for five (5) years from the date it received the information.
- Modifications, Waivers, and Severability: No modification of any of these Terms shall bind either party unless the parties both sign and date the modification and it references modifying one or more of these Terms. Arc3’s waiver of any of these Terms shall not be deemed a continuing waiver and shall only apply to specific waivers. If any of these terms is determined to be invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other terms, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable term shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties.
- Updating of These Terms: Arc3 may change these Terms at any time in its sole discretion. Customer therefore agrees to regularly review these Terms. Those Terms in effect at the time of each new order or delivery shall be those contained on this website http://www.arc3gases.com/terms at the time of such order or delivery.