Terms and Conditions for Sales and Service
All Sales of products and services by Arku, Inc. ("ARKU") are mode on the following terms and conditions. The products and services being sold by ARKU are referred to below as the "Goods" and the purchasers is referred to as the "Buyer".
1. Agreement
If Buyer has not otherwise agreed to these Terms and Conditions, then Buyer’s acceptance of delivery of, or payment for, the Goods shall constitute Buyer’s agreement to these Terms.
2. Orders
ARKU is not bound by an order until ARKU accepts it in writing. If ARKU is performing a service for the Buyer, acceptance between the parties will occur once ARKU begins performing the requested service even if ARKU had not yet accepted the service order in writing. ARKU may elect not to accept an order if, in ARKU’s judgment, ARKU will be unable to meet the requested delivery date or to fill the requested quantity or type of products ordered. ARKU may also elect not to accept an order, or may delay shipment or cancel an accepted order, if Buyer is in default in obligation to ARKU or if the sale or shipment would cause Buyer to exceed Buyer’s credit limit.
3. Payment Terms
The payment terms shall solely be in accordance with the terms of ARKU’s Quote.
4. Delivery and Risk of Loss
Delivery shall be F.O.B. ARKU’s place of business or other point of origin as stated on ARKU’s Quote. The time and place at which the risk of damage to or loss of the Goods shall pass to Buyer shall be ARKU’s place of business or other point of origin from where the Goods are released for shipment. Shipping, delivery and performance dates are estimates only, and time is not of the essence. ARKU may ship all the Goods at one time or in portions from time to time. ARKU shall have the right to determine the method of shipment and routing for Goods, unless otherwise specified by Buyer and Buyer shall be responsible for any insurance, fees and applicable taxes.
5. Unavoidable Delay
If ARKU is unable to finish and ship the Goods to Buyer on time or perform the services because of anything ARKU cannot reasonably control (such as acts of God, casualty, labor trouble, accidents, delays resulting from global supply chain bottlenecks/disruptions, Covid 19 government restrictions, Buyer’s actions or unavailability of supplies or transportation), the estimated delivery time shall be extended accordingly, and ARKU shall not be liable to Buyer for any damages caused by the delay.
6. Taxes
ARKU’s Quote may include import/export costs under certain scenarios but does not include any value-added, sales, excise, use, customs or other duties or other taxes, and Buyer shall be liable for all such taxes, whether or not invoiced by ARKU.
7. Changes
ARKU shall have the right to make design or engineering changes in its parts, equipment processes or methods of manufacturing.
8. Limited Warranty
All Goods carry the following limited warranty: (i) a One (1) year limited warranty for services performed by ARKU on Buyer’s material beginning from the date the service is completed, (ii) a limited warranty extending One (1) year or Three Thousand Five Hundred (3,500) operating hours, whichever occurs first, for a new ARKU product purchased by Buyer and (iii) a limited warranty extending Sixty (60) days for a used ARKU product purchased by Buyer. The limited warranty coverage for Goods other than services begins on the date of final buy-off at Buyer’s place of business or acceptance by Buyer, whichever occurs first.
The limited warranty covers defects in materials or workmanship and excludes (i) normal wear and tear or environmental conditions, (ii) misuse, abuse, neglect, accidents, collision, fire, theft, freezing, vandalism, riot, explosion or objects striking the Good, (iii) altering, disassembling or modifying the Good or any of its parts, (iv) adding non-ARKU approved components to the Good, (v) defects caused by or induced by failures, breakdowns or damage by other machines in the same facility, and (vi) acts of God, natural disasters and other similar causes.
9. Remedy
As Buyer’s sole and exclusive remedy for the breach of the limited warrantydescribed above, ARKU will either repair or replace the Goods at its discretion and cost if theGoods are found by ARKU to be defective in either material or workmanship. In no case will arefund be issued for Goods covered by the limited warranty.
10. Limitations/Exclusions of Liability
(A) EXCEPT AS STATED IN PARAGRAPH 8, ARKU MAKES NO WARRANTIES, EXPRESSOR IMPLIED, AS TO THE GOODS, WHETHER NEW OR USED, AND IN PARTICULAR,MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULARPURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPERAPPLICATION AND USE OF GOODS. ARKU SHALL HAVE NO TORT LIABILITY TO BUYERWITH RESPECT TO ANY OF THE GOODS, WHETHER NEW OR USED, AND SHALL NOTBE LIABLE FOR CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGESARISING FROM ANY PRODUCT DEFECT, DELAY, NON-DELIVERY, RECALL OR OTHERBREACH. BUYER SHALL HAVE NO RIGHT OF REJECTION OR REVOCATION AFTERACCEPTANCE OF THE GOODS.
(B) IN PERFORMING SERVICES, ARKU SHALL NOT BE LIABLE FOR ANY DAMAGE TOBUYER’S PART OR MATERIALPROVIDED TO ARKU DURING ARKU’S PERFORMANCE OFSERVICES ON SAID PART OR MATERIAL IF SUCH DAMAGE IS DUE TO THE PHYSICALCONSTITUTION, DENSITY OF THE PART OR MATERIAL OR OTHER CHARACTERISTICSOF THE PART OR MATERIAL ARKU’S WORK IS PERFORMED ON. TO ILLUSTRATE THISEXCLUSION OF LIABILITY, IF ARKU IS RETAINED TO LEVEL A PIECE OF METAL WHICHHAS A LOW DENSITY, THERE IS A POTENTIAL, DURING THE LEVELING PROCESS, TOSCRATCH, IMPRESS OR CAUSE TRACES ON THE METAL. BUYER RECOGNIZES THISPOTENTIAL RISK OF DAMAGE AND ACKNOWEDGES THAT ARKU IS NOT LIABLETHEREFOR.
(C) IN ADDITION, ARKU SHALL NOT BE LIABLE TO BUYER, THE END USER OR ANYOTHER THIRD PARTY FOR ANY INJURIES, DAMAGE OR OTHER CLAIMS, OF WHATEVERKIND AND NATURE, ARISING OUT OF OR CAUSED IN CONNECTION WITH THE USE OFBUYER’S PART OR MATERIAL AFTER IT HAS BEEN SERVICED BY ARKU ANDRETURNED TO BUYER AND BUYER SHALL INDEMNIFY AND HOLD ARKU HARMLESSFOR ANY SUCH CLAIMS.
(D) ARKU’S LIABILITY FOR ANY CAUSE OF ACTION, OF WHATEVER KIND AND NATURE,SHALL NOT EXCEED, AND BE LIMITED TO, THE AMOUNT OF MONEY
PAID BY BUYER UNDER THE PURCHASE ORDER OUT OF WHICH THE LIABILITY AROSE.
11. Permits and Compliance
ARKU is not responsible for obtaining any permits, inspections or licenses required for delivery, installation or operation of the Goods. ARKU makes no promise or representation that the Goods will conform to any federal, state, local, foreign or other laws, ordinances, regulations, codes or standards unless specifically stated in ARKU’s Quote.
12. Components of Another Product
If any of the Goods constitute parts or components to be incorporated or installed in a product manufactured or assembled by or for Buyer, then (i) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product, (ii) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (iii) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions, that shall be necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
13. Safety Features
Buyer shall itself, or cause the end-user, to install and operate the Goods properly and in accordance with any written instructions that ARKU provides, and Buyer shall not, and shall cause the end-user to not, remove or change any safety devices, warnings or operating instructions placed on the Goods by ARKU.
14. Indemnity
Buyer shall indemnify and hold ARKU harmless with respect to all damages, losses, claims and expenses, including court costs and reasonable attorney fees, that ARKU incurs as a result of any alleged or actual breach by Buyer of any of its obligations under these Terms and Conditions or any claimed patent, trademark or copyright infringement or any other claim resulting from ARKU’s manufacture of the Goods to Buyer’s specifications.
15. Grant of Security Interest
(i) Buyer, as security for payment of all amounts now owing or which may hereafter be owing to ARKU by the Buyer and for the observation and performance of all other obligations of the Buyer to ARKU, hereby grants to ARKU a security interest, including, without limitation, a purchase money security interest in all Goods sold to Buyer by ARKU, including without limitation, all Goods intended to be sold hereunder, now or in the future, together with all parts, accessories, attachments thereto and substitutions therefor, and all proceeds in whatever form, or any sale, transfer of or other disposition of the Goods sold to Buyer and without limiting the generality of the foregoing, all debts, accounts, claims and money or property that the Buyer received in respect of such Goods, including insurance monies of any and all of which shall be received and held by Buyer in trust for ARKU and paid over to ARKU promptly upon receipt. ARKU is authorized without prior notice to Buyer, to file UCC financing statements with the proper authorities or take such other actions ARKU deems necessary to perfect its security interest hereunder. (ii) Buyer further acknowledges that all Goods, without limitation, intended to be sold by ARKU to Buyer and which are sold by it to Buyer after the coming into effect of these Terms and Conditions are sold pursuant to these Terms and Conditions and subject to the security interest granted herein. (iii) Buyer may not pledge or assign as security the Goods delivered by ARKU. Buyer shall notify ARKU immediately in the event of attachment, confiscation or other acquisition of the Goods by a third party.
16. Intellectual Property and Confidentiality
All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that ARKU creates or develops in the course of ARKU’s design, development or manufacture of the Goods or performance of the services and all drawings and specifications that ARKU provides to Buyer (“Intellectual Property”) shall be and remain ARKU’s sole property. Buyer shall not disclose or use any of the Intellectual Property or any information about ARKU’s business, operations or activities, except to the extent necessary for Buyer to use the Goods or services. Buyer agrees that such information is confidential and proprietary, and that Buyer’s subcontractors must be bound by a corresponding undertaking. Buyer shall not use or incorporate into any other product any of ARKU’s logos, trademarks, trade names or part numbers.
17. ARKU's Rights
In addition to the rights and remedies under these terms and conditions, ARKU has all the rights and remedies given to ARKU by applicable law and ARKU’s rights and remedies are cumulative and may be exercised from time to time. No waiver by ARKU of any right on one occasion shall be a waiver of any future exercise of that right.
18. Time for Bringing Action
Any action by Buyer against ARKU for breach of any obligation of ARKU to Buyer or for any other claim arising out of or relating to the Goods of their design, manufacture, sale or delivery must be brought within One (1) year after the cause of action accrues.
19. Applicable Law
This agreement between ARKU and Buyer shall be considered to have been made in the State of Ohio, and it shall be governed by and interpreted according to Ohio law, without reference to its conflicts of law rules. Any action arising out of or relating to this agreement shall be brought in any state or federal court in or for Hamilton County, Ohio and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that these courts are an inconvenient forum.
20. Complete Agreement; Amendment
The terms on the face of ARKU’s Quote and these Terms and Conditions contain the entire agreement between Buyer and ARKU. Any change in this agreement must be by written instrument signed by an authorized ARKU officer.