1. AR RACKING INC.: GENERAL TERMS AND CONDITIONS

1.1. GENERAL TERMS AND CONDITIONS OF SALES

1. This document and its acceptance constitute the GENERAL TERMS AND CONDITIONS OF SALES of the product, excluding any other documents, such as brochures, sales catalogues, etc., and also excluding any prior and/or current negotiation, undertakings or agreements between the parties, either in writing or verbally, related to the product to which these GENERAL TERMS AND CONDITIONS OF SALES apply, except if shown on the order confirmation. In the event disagreement with the Buyer’s terms and conditions of purchase, these GENERAL TERMS AND CONDITIONS OF SALES will always prevail.
2. The order placed by the customer under this quotation will not be considered final until the approval by AR RACKING in writing with the issuing of the order confirmation.
3. Only orders for Standard product (included in our price list) can be cancelled. Every order cancelled by the Customer [after acceptance by AR RACKING based on the appropriate order confirmation] must be notified in writing to AR RACKING and also be accepted in writing by AR RACKING, and shall be subject to a cancellation fee of 30% of the order amount (excluding VAT), provided that it is notified with a prior notice of at least 10 calendar days from the order date. AR RACKING shall be entitled to compensate any amounts received in advance from the Customer with this cancellation fee. AR RACKING may withhold any amounts received in advance from the customer, offsetting the amounts that the customer owes it under this clause, under any other clause contained in these GENERAL TERMS AND CONDITIONS OF SALES, or by virtue of any other commercial relationship established with the customer.
4. For non-standard product, any cancellation or suspension of the order shall be subject to payment of all costs arising from such cancellation or suspension, plus a 5% allowance. Suspension shall include any delays caused by Customer or third parties that prevent AR RACKING from performing the order on agreed dates.
5. Any changes to an order requested by Customer shall be subject to AR RACKING´s written acceptance. Changes in laws, regulations or other legal requirements affecting the work, issued after the order, shall entitle AR RACKING to a reasonable price adjustment.
6. The delivery of products manufactured by AR RACKING and the transfer of risk shall take place in accordance with the terms and conditions agreed on the order (Incoterms) and, if not otherwise explicitly agreed, at the place of loading or delivery to the first carrier.
7. Delivery dates shall be calculated from the latest of: the [order/order confirmation], or the receipt of the initial down payment.
8. Delivery dates shall be as specified on the order confirmation. Delivery dates can be modified due to reasonable causes preventing the delivery of the product..
9. Any delay in delivery shall not entitle the Customer to terminate the contract or claim damages, except for cases of negligence or gross negligence by AR RACKING. For partial deliveries, the delivery date shall be the date when the goods are ready to be loaded by the Customer, and AR RACKING shall not be liable for any delay caused by and during transportation. In any case, loading can only take place if the customer is up to date with its financial obligations or any other type of obligation with AR RACKING The transport risk will always be assumed by the customer.
10. If delivery is delayed by Customer, it must notify an alternative delivery place for storage, at its cost and risk. If Customer does not arrange storage, AR RACKING shall be entitled to do so, and charge all storage costs.
11. The price is net, and not inclusive of any taxes (such as VAT, sales tax or others). If after the order, new tariffs or charges apply to the scope of work, such tariffs or charges shall be on account of the Customer.
12. Declarations on product information in manuals, websites, price references or other information related to the product will only be binding on AR RACKING when an agreement or order confirmation contains an express referral to them. The purchaser will be solely responsible for defining the specifications, as well as any special feature required by the order. AR RACKING will not be responsible for the suitability of the product for specific purposes that have not been previously communicated to it.
13. AR RACKING shall not be liable for the delay in performing or fulfilling its obligations if such a delay or non-fulfilment is due to events or circumstances beyond its reasonable control, including, but not limited to, wars, fire, industrial disputes or problems that can be attributed to third-parties (such as suppliers, carriers, material shortages power failures and other interference impacting production, etc), or Customer (delays, changes in specifications, site conditions, etc.). Such delays or non- fulfilment shall not constitute a breach of this agreement and the period for performance shall be extended by a period equal to the period in which performance was so prevented. AR RACKING shall be entitled to the extra-cost generated by the delay (including Plant Rental, lost days, etc.). If the delay or non-compliance should persist for longer than six (6) months, either party shall have the right to terminate this agreement with respect to the unperformed portion of the Contract. In such event, AR RACKING shall be entitled to compensation for all costs resulting from such termination.
14. Warranty: The material sold by AR RACKING is guaranteed against any manufacturing defect and/or hidden defect, for a period of five (5) years from the invoice date. This warranty is strictly limited to the free supply of the parts recognized as defective by the company AR RACKING or to the payment of the amount equivalent to the defective material, at the sole discretion of AR RACKING, not giving rise to any other type of claim by the customer. If the customer alleges any defect and/or hidden defect in the product, it shall immediately stop using the product until its inspection by AR RACKING or any company designated by AR RACKING for this purpose. AR RACKING shall not be liable for non-approved changes or installation, accidents, misuse, inappropriate maintenance or overload of the product.
15. AR RACKING EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
16. IN NO EVENT SHALL AR RACKING BE LIABLE FOR INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR LOSS OF PRODUCTION, ARISING FROM A DELAY, DEFECTIVE PERFORMANCE OR TERMINATION..
17. AR RACKING ‘S MAXIMUM LIABILITY ARISING FROM THIS AGREEMENT IS LIMITED TO 50% OF THE ORDER AMOUNT.
18. These terms and conditions shall be construed and governed in accordance with the laws of the state of North Carolina.
19. Any and all claims and disputes arising from or relating to the order shall be submitted to mandatory and binding arbitration in the [[*] Tribunal of the American Arbitration Association in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association]. The arbitration proceedings shall be held at a mutually agreeable location in Charlotte, North Carolina.

 

1.2. General conditions applicable in case of the resale of the product

This section will apply to all those customers (Resellers) who do not acquire the products for themselves, but rather for subsequent resale to a third party; Resellers must comply with:

1. Undertake to always comply with the rules, standards and guidelines established by AR RACKING on the product, quality, use and warranty.
2. Must sell the products in their original presentation, without modification or alteration, unless expressly authorized in writing by AR RACKING.
3. Will only use the documentation and complementary items provided by AR RACKING and undertake to send them with the product to their customer. Will not have the right to modify and adapt the documentation, without the prior written consent of AR RACKING.
4. Must inform AR RACKING of any modification they deem necessary to adapt said documentation to the particularities, legal or commercial, of the territory in which the products will be resold. AR RACKING will not be responsible for any lack of adaptation that has not been previously communicated to it and be accepted in writing by AR RACKING.
5. Failure to comply with any of these conditions exempts AR RACKING from any claim made by the Reseller or its customers, derived from said breach. AR RACKING will not in any case be responsible for the installation, assembly or other ancillary obligations other than those derived from its status as a manufacturer.
6. AR RACKING will not be liable beyond the limits established in the GENERAL TERMS AND CONDITIONS OF SALE, so, in case of the resale of the product, AR RACKING specifically excludes any damages that the end customer may claim from its seller based on the agreement signed between them both.

 

1.3. General supply conditions

1. The goods will be delivered in the conditions agreed in each case with the customer.
2. In carriage paid cases, AR RACKING reserves the right to choose the freight forwarder it considers most appropriate.
3. If the customer receives the material in poor condition or erroneously, it must record this on the carrier’s delivery note, indicating the damage observed. If for any reason the customer cannot upon reception inspect the material delivered to it, it must indicate on it: “Goods awaiting inspection”.
4. In either of the cases in the above point, the Customer must communicate to AR RACKING any anomalies found within a period not exceeding 7 days from the date of reception.
5. Failure to comply with these conditions (points 3 and 4) will imply acceptance of having received the material in perfect condition and will therefore not give rise to any claim. Both in shipping error and delivery of damaged material cases, AR RACKING will inform you that the Freight Forwarder will make the return. Do not return the goods without the written acceptance of our AR RACKING .
6. The Customer will be responsible providing the necessary technical and human resources for the delivery of the shipments, with their cost always being borne by the Customer.