TERMS AND CONDITIONS OF SALE
1. FORMATION OF CONTRACT. Acceptance of any order from you for purchase of products from us is expressly made conditional on your assent to these Terms and Conditions of Sale, and we agree to furnish products only upon these terms and conditions. Any terms or conditions in any associated purchase order, Acknowledgement, Invoice or any other writing pertaining to any such order, regardless of its wording or when received by you or us, which are in conflict or inconsistent with or add to these terms and conditions, are not acceptable and will not become a part of any resulting Contract. Neither our Acknowledgement, Invoice, or return of a copy of your purchase order or other form, regardless of its wording, nor the filling and shipment of such order, shall constitute acceptance on our part of any such conflicting, inconsistent, or additional terms, nor shall they in any way operate to modify or change the full effect of these Terms and Conditions. Acceptance by you of any products from us shall be deemed to be your assent to these terms and conditions. We reserve the right to refuse any order.
2. TERMS OF PAYMENT. Terms of payment shall be set forth on the face of the Acknowledgement and Invoice. Buyer shall not be entitled to deduct from the price invoiced to it by Arling Lumber the amount of any claim asserted by Buyer against Arling Lumber, unless such claim shall have been allowed, in writing, by Arling Lumber. If Buyer fails to pay any sum owed when due, interest shall accrue to Arling Lumber’s credit on such sum at the rate of 1 ½ percent per month or the highest rate allowed by law, whichever is greater. If Arling Lumber, in its sole discretion, finds it necessary to employ an attorney to collect any past due sum owed, it may collect in addition to any other sum owed reasonable attorneys’ fees and costs, whether or not litigation is commenced.
3. TAXES. All sales tax, excise taxes or other forms of taxes levied against this transaction shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay. You shall hold us harmless from all such taxes.
4. WARRANTIES, WARRANTY LIMITATIONS AND CONSEQUENTIAL DAMAGES. Arling Lumber warrants only that the goods to be supplied will conform to the description, grade and condition of the goods indicated on the face of Arling Lumber’s Invoice or Acknowledgement; that Arling Lumber will convey good title thereto; that such goods will be delivered free from any lawful security interest or other lien or encumbrance unknown to the Buyer. We shall have no obligation to ensure that any product purchased from us meets any special quality assurance specifications and/or other requirements unless such specifications and/or other requirements are set forth in writing as part of our Quotation or Acknowledgement or are otherwise expressly accepted in writing by us. Our sole obligation under these warranties shall be to issue credit, repair, or replace any materials that we determine to be defective at the time of shipment. We have the sole right to determine whether such material shall be repaired or replaced or whether credit shall be issued. No allowance shall be made for any labor charges of you for replacement of materials, adjustments or repairs, or any other work unless advance written authorization for such allowance is given by us. THE WARRANTIES SET FORTH IN THIS SECTION ARE EXPRESSLY IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AND THERE ARE NOT EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. OUR WARRANTY AND REMEDIES AS SPECIFIED HEREIN ARE YOUR SOLE REMEDIES, WHETHER UNDER THEORIES OF BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.
5. LIMITATION OF LIABILITY. Our liability for any claim of any kind for any loss or damage resulting from, arising out of, or connected with this Contract, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair, or use of any material covered by or furnished under this Contract shall in no case exceed the price allocable to the product, material or part thereof which gives rise to the claim. IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES.
6. DELIVERY AND RISK OF LOSS. Every effort will be made to effect delivery at the desired time, but delivery dates are not guaranteed. Shipping dates are approximate and are based upon prompt receipt of all necessary information. WE SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY DAMAGES DUE TO DELAYS IN SHIPMENTS, REGARDLESS OF THE CAUSE OF SUCH DELAYS, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Risk of loss, theft, destruction, or damage to products sold by us shall pass to you upon acceptance of such products by you, regardless of who bears the cost of freight. We assume no risk of loss, theft, damage, or destruction to materials that are owned by you or others upon which we perform work, either prior to the delivery of the products to our place of business or subsequent to the delivery by us to a shipper or carrier for delivery to you.
7. CLAIMS AND ARBITRATION. Claims for shortages or incorrect or damaged goods must be made in writing to Arling Lumber within 5 days after receipt of shipment. All claims shall be handled in conformity with the current standard grading and dressing rules of the applicable grading association. We may, at our discretion, settle any claim or controversy arising out of or relating to this Contract, or the breach or non-performance of any provision hereof, by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect at the time such claim or controversy arises. You agree that any arbitration shall be administered and conducted in Cincinnati, Ohio.
8. FORCE MAJEURE. We shall not be liable for any actions or any failure to act due to causes beyond our reasonable control, including but not limited to acts of God, your acts, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, car shortages, and inability due to causes beyond our reasonable control to obtain necessary labor, materials, or processing facilities.
9. INDEMNITY. You hereby agree to indemnify, defend, and hold us harmless, and our officers, directors, agents, employees, from and against all claims, damages, liability and costs (including attorney’s fees) relating to (a) your breach or non-performance of any provision of this Contract; (b) your possession, repair, maintenance, use, or installation of the material; or (c) injury, death, or sickness to persons or damage to property resulting from any act or omission of you.
10. GOVERNING LAW. This Contract shall be governed by, construed, and enforced in accordance with the laws of the State of Ohio. You hereby submit exclusively to the jurisdiction of the Hamilton County, Ohio Common Pleas Court with respect to any claim or controversy arising out of or relating to this Contract, or the breach or non-performance of any provision hereof, subject to the arbitration clause as set forth herein.
11. SEVERABILITY. In the event any provision of these terms and conditions is held or determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect.