1. Scope of Sale. The scope of Archer’s obligation for materials ordered by Archer’s purchasers (“Purchaser”) is limited to the type and quantity specifically identified in Archer’s confirmation to Purchaser respecting Purchaser’s order (“Order”) and those materials (“Materials”). Archer’s confirmation (“Confirmation”) is incorporated by reference in these terms and conditions. The provision of additional Materials is discretionary to Archer, and subject to such additional charges as Archer shall charge Purchaser, which Purchaser agrees to pay within 30 days of Archer’s demand. Purchaser acknowledges that shipping quantities are subject to +/- ten percent (10%) overage or underage.
2. Payment Terms. Unless stated otherwise in Archer’s Confirmation, Purchaser shall make payment of the Purchase Price for Materials, in full, within 30 days of the Materials’ delivery. Archer reserves the right to require payment in advance and to otherwise modify payment terms following 30 days prior notice of such modified terms (published revision to these terms and conditions, including publication by posting on Archer’s website, established such notice). Purchaser agrees to pay a monthly service charge of 1.5% per month on amounts outstanding after the due date. Archer may accept partial payment in an amount less than the full amount, but such acceptance shall not constitute a waiver of Archer’s right to collect the remaining balance, notwithstanding Archer’s endorsement of a check or other negotiable instrument. Purchaser shall be liable for any and all costs and expenses (including attorney’s fees) incurred by Archer to obtain payment or in otherwise enforcing any provision of the Confirmation or these terms and conditions of sale. Purchaser acknowledges the volatility of raw material pricing, and therefore that Archer’s pricing is not guaranteed for any release beyond thirty (30) days of Order, and Purchaser further agrees to pay Archer for any price increases thereafter, with or without prior notice, respecting possible or actual price increase.
3. Cancellation. Purchaser may cancel Orders within 24 hours of Archer’s Confirmation. Cancelation thereafter is at Archer’s sole discretion, and is subject to terms as Archer may require, which terms Purchaser agrees may include, without limitation, a charge of 50% of the Order’s Purchase Price as an agreed minimal liquidated restocking fee. Cancelations, returns or invoice deductions of any type or amount require written authorization by Archer.
4. Delivery, Acceptance, and Risk of Loss. All purchases shall be delivered FOB Archer’s facility, which is currently located at 2860 Lowery Street, Winston-Salem, NC 27101, but is subject to change without notice to Purchasers. Purchaser shall bear the risk of loss once the Materials are so delivered. Acceptance shall be accomplished upon delivery of the Materials. In Archer’s discretion it may coordinate the shipment of the Materials or ship them in accordance with Purchaser’s instructions, but assumes no liability and shall bear no costs in doing so. Regardless, Archer shall not be responsible for damage occurring to the Materials during shipment, or otherwise at any time after delivery. If for any reason Purchaser is not able to take delivery of the Materials, Archer may, at its sole discretion, store the Materials; however, all costs of the storage, including taxes and insurance, shall be immediately payable by Purchaser upon demand by Archer, and Archer assumes no liability and shall bear no costs in doing so.
5. Title. Title to the Materials shall pass from Archer to the Purchaser upon delivery and full payment of the Purchase Price. No transfer, renewal, extension or assignment of any Order or of any interest respecting it shall operate as a payment or transfer of title to the Purchaser or in any manner relieve the Purchaser of its obligations. No title shall pass to Purchaser with respect to Materials furnished on a license basis, regardless of payment. Related manufacturing tools, molds, shapes, etc. (collectively “tools”) are and shall be owned by Archer, and their purchase is not part of the purchase price. If Seller wishes to own any tool, it must contact Archer for separate pricing and terms should Archer be agreeable to selling the same (which Archer shall have no obligation to sell).
6. Security Interest. Archer reserves, and Purchaser grants to Archer, a first priority, purchase money security interest in the Materials until such time as full payment has been received by Archer. Purchaser shall execute and deliver such further documents as reasonably requested by Archer to preserve and perfect such security interests, including but not limited to Uniform Commercial Code (UCC) financing statements, if applicable. Until Materials delivered by Archer are paid for in full by Purchaser, Purchaser shall segregate the Materials and keep them identified as having been furnished by Archer. Archer shall have all rights of a secured creditor under the UCC.
7. Warranty and Disclaimers. Archer warrants its Materials to be free of material defects for a limited period of one year from delivery. Archer’s warranty obligation is limited to Archer, at its option, replacing, repairing or giving credit for any of Materials that, within the warranty period, fail because of material defect. In no event shall Archer’s warranty obligation exceed the price Purchaser paid for the specific Materials in question. Purchaser acknowledges and agrees that the provisions above constitute the sole and exclusive remedy available to it with regard to defective materials, and that all other warranties, express and/or implied are disclaimed by Archer and waived by Purchaser, including but not limited to any warranties of merchantability or fitness for any particular purposes. ARCHER FURTHER EXPRESSLY DISCLAIMS ANY LIABILITY FOR DAMAGES OR LOSSES, OR CLAIMS FOR THE SAME, RESULTING FROM OR RELATING TO ANY INFORMATION, SUGGESTIONS, ESTIMATES OR MATERIALS IN CONNECTION ANY WAY WITH PURCHASER’S ORDER. ALL PRODUCTS SOLD ARE SOLD “AS IS” AND WITH NO GUARANTY OF RESULTS, AND SHALL BE USED OR FURTHER SOLD BY PURCHASER AT PURCHASER’S SOLE RISK. ARCHER FURTHER EXPRESSLY DISCLAIMS ANY DESIGN RESPONSIBILTY REGARDING ANY MATERIALS.
8. Confidentiality. To the greatest extent permitted by law, Purchaser shall consider all information, including these terms and conditions, furnished by Archer to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than fulfillment of Purchaser’s obligations respecting Orders to Archer unless Purchaser obtains written permission from Archer to do so. This confidentiality requirement shall apply but is not limited to drawings, specifications, or other documents prepared by Archer for Purchaser. Purchaser shall provide confidential information only to those of its agents, servants and employees who have been informed of the requirements of this paragraph and have agreed to be bound by them. The provisions of this paragraph shall survive delivery and payment.
9. Use of Image. Purchaser agrees and consents to allow Archer to make reference to the Materials, the Purchaser or the equipment or other products for which the Materials are being used by Purchaser, and to use their respective logos, trademarks or any other graphical representations of such equipment or products, or use photographs of them or Archer’s Materials, without the prior written consent of the Purchaser; provided, however, that Archer may not, without prior written consent do any of the foregoing in a manner which implies endorsement by Purchaser.
10. Default. Archer reserves the right to terminate any Order and accelerate all amounts due and payable if Purchaser fails to make payment to Archer within 10 days of payment (or any part thereof) being due or otherwise fails to comply with these terms and conditions, or any proceeding is filed by or against Purchaser in bankruptcy. Archer reserves all its rights (both legal and equitable, and whether arising by statute or common law) against Purchaser relating to the Order or these terms and conditions. Selection of a remedy by Archer shall in no way be construed as a waiver of other remedies available to Archer. If Purchaser fails to perform any covenant or obligation under the order or these terms and conditions or any other agreement that Purchaser has with Archer, including without limitation the failure to pay when due any amounts owed to Archer under any and all agreements between the parties, Archer shall be excused from the performance of any of its obligations until such time as said default is cured, if ever. Archer shall be entitled to recover its attorney’s fees and costs, including any arbitration or arbitrator fees or costs, in event of any default by Purchaser, in addition to any other relief sought or awarded to Archer by any court, panel or tribunal.
11. Indemnity. To the greatest extent permitted by law, the Purchaser shall exonerate, indemnify, defend and hold harmless (including for Archer’s attorney’s fees, costs and expenses whatsoever related) Archer and Archer’s subsidiaries, officers, directors, shareholders, partners, representatives, employees, agents, insurers, successors and assigns of, from, or with respect to any and all claims, demands, damages and causes of action whatsoever arising out of or in any way related to: (i) Purchaser’s breach of any order or any of these terms or conditions; (ii) any negligent act or omission by or of the Purchaser or its personnel, agents, subcontractors, or other person or entity engaged by the Purchaser or under their control (other than Archer or its personnel, agents, subcontractors, or other engaged by Archer or under Archer’s control), (iii) instructions, directions and/or designs given to Archer by Purchaser respecting the Materials; (iv) intellectual property disputes regarding the Materials (Purchaser expressly warrants that it has intellectual property rights necessary for Archer to make the Materials, and assigns such rights to Archer to the extent necessary for Archer to make them); and/or (v) any claim against Archer otherwise relating to any Order, including relating to Purchaser’s use of the Materials.
12. Limitation of Liability. Archer’s liability shall be limited solely to the repair or replacement of the Materials in question for the specific Order, or giving credit for the Materials, at Archer’s sole option, under the warranty clause herein, if the applicable warranty period described in that clause has not expired. Archer shall in no event be liable for special, incidental, consequential or indirect damages, regardless of cause. The damage limitation provided in these terms and conditions and the remedies stated herein shall be exclusive and shall be Purchaser’s sole remedies. In no event shall Archer’s liability exceed the purchase price for subject Materials in question under the specific Order. Purchaser explicitly accepts the provisions of this paragraph in return for the prices granted for the Materials. Purchaser understands and agrees that the prices agreed to by Archer in any order would be higher in the absence of this limitation of liability. No action against Archer shall be commenced more than one year after the accrual of the cause of action. Archer shall have no liability with respect to claims relating to or arising from use of third-party products and services, or otherwise not relating to Archer responsible act or omission.
13. Force Majeure. Archer shall be excused from any obligation or liability for any delay in performance or failure to perform which delay or failure to perform is caused by circumstances which are beyond the reasonable control of Archer, including without limitation acts of God, natural disaster, labor or material shortages, war, earthquakes, acts of terrorism, etc.
14. Assignment. No rights or obligations of Purchaser respecting any Order or otherwise respecting Archer may be assigned without Archer’s written consent, which Archer may withhold in its discretion.
15. Acceptance of Terms. Archer’s acceptance of any Order from Purchaser is on the express condition that only the terms and conditions set forth herein shall apply to the sale. Purchaser’s purchase of Materials from Archer or acceptance of Materials delivered by Archer constitutes Purchaser’s agreement to these terms and conditions. Any term, provision or condition in conflict with, in addition to or in modification of any of the terms and conditions herein (including as may be set forth in Purchaser’s Order) shall not be binding upon Archer unless an authorized representative of Archer accepts such term, provision or condition in writing. Archer’s failure to object to any term or condition contained in any communication from Purchaser shall not be deemed acceptance thereof or waiver of the terms and conditions herein.
16.Taxes. Unless otherwise stated, Archer’s prices are exclusive of federal, state and local taxes, including without limitation sales, use, excise, privilege, transactional, gross receipts, ad valorem or any other transactional tax or customs and duties (“Tax” or “Taxes”) paid or payable by Archer, however designated, levied or based on amounts payable to Archer under or in connection with any Order. Purchaser shall immediately pay upon demand the full amount of any such applicable Tax and shall hold harmless and indemnify Archer from the claims of any governmental authority asserting that any such Tax is due and payable. Purchaser must present an exemption certificate if it claims any exemption from Tax. Absent presentation of an exemption certificate, all applicable Taxes shall be added to the purchase price of Materials.
17. Miscellaneous. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of law principles. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. The parties consent to the jurisdiction and venue of the courts of Winston Salem, NC for any action, suit or proceeding. Purchaser waives right to trial by jury. In Archer’s sole discretion any dispute shall be mediated and/or resolved by binding arbitration. Archer shall be entitled to recover from Purchaser all of Archer’s attorney’s fees, costs and expenses whatsoever as incurred by Archer in any dispute resolution action. If any part of these terms and conditions is in any manner held to be invalid, illegal, void or to be in conflict with any law, the validity of the terms and conditions shall not be affected, and such part, term, paragraph or provision shall be construed and enforced in a manner designed to effectuate the intent expressed in these terms and conditions to the maximum extent permitted by law.