Ark Fabrication – Terms and Conditions of Sale
1. Acceptance.
Ark Fabrication (“Ark”) sells products (“Products”) and/or services (“Services”) to its customers (“Purchaser”) under the following Terms and Conditions (“Terms”). These Terms, along with any quotation, acknowledgment, invoice, or other documents issued by Ark (collectively, the “Agreement”), represent the full and exclusive agreement between the parties. Ark expressly rejects any additional or conflicting terms proposed by Purchaser, whether included in business forms, websites, or otherwise. Commencement of work by Ark or acceptance of Products/Services by Purchaser constitutes acceptance of these Terms. In case of conflict, the following order of precedence applies: (a) written terms signed by an authorized Ark officer; (b) documents issued by Ark; (c) these Terms.
2. Quotations.
Written quotations are valid for 30 days unless otherwise stated and are subject to change or withdrawal at any time. Orders are subject to credit approval, and Ark reserves the right to refuse any order until acknowledged or fulfilled by shipment or commencement of Services.
3. Prices and Payment Terms.
All prices are in U.S. Dollars and may change without notice. Orders are billed at prices in effect at the time of order acceptance. Prices exclude taxes, duties, licenses, and similar fees (“Fees”), which are the Purchaser’s responsibility. If Ark pays any Fees on Purchaser’s behalf, Purchaser agrees to reimburse Ark in full. Payment terms are net 30 days from invoice date. Late payments incur a 1.5% monthly interest or the maximum legal rate. Purchaser may not withhold payments or apply set-offs. In the event of default, Purchaser agrees to pay all recovery costs, including attorney fees. Minimum order value is $50. Non-standard products may have minimum order quantities and longer lead times.
4. Credit Approval.
All shipments are subject to Ark’s credit approval. Ark may require prepayment or other security if Purchaser’s financial condition is deemed unsatisfactory, and may cancel any outstanding orders at its discretion.
5. Cancellation or Modification.
Orders may not be canceled or modified without Ark’s written consent. If approved, Purchaser agrees to pay all applicable cancellation/modification fees and costs. Sales items are non-cancellable.
6. Inspection / Non-Conforming Shipments.
Purchaser has 15 business days from delivery to inspect Products and notify Ark in writing of any non-conformities. Failure to notify within this period constitutes acceptance. Returns require Ark’s written authorization and must follow return procedures. Purchaser bears return costs and risk unless Ark confirms a defect. Over/under shipments of up to 10% of the ordered quantity are allowable.
7. Delivery.
Unless otherwise agreed in writing, all shipments are FOB Ark Fabrication’s facility (Incoterms 2010). Shipping dates are estimates. Risk of loss transfers to Purchaser upon shipment. Purchaser must notify Ark and the carrier of any damage or shortage within 5 business days. Ark is not liable for losses during transit.
8. Product Warranty.
Ark provides warranty information specific to its Products upon request. Standard warranty covers workmanship and materials under normal use.
9. Service Warranty.
Ark warrants that Services will conform to any agreed specifications. Remedies are limited to re-performing the Services or issuing a credit, at Ark’s discretion.
10. Limitation of Liability.
Ark is not liable for indirect, incidental, special, punitive, or consequential damages, including downtime or lost profits. Total liability is limited to the purchase price of the affected Products or Services.
11. Training.
It is Purchaser’s responsibility to ensure that Products are used by properly trained individuals. Ark may provide training upon request. Purchaser assumes liability for any misuse or untrained use of the Products.
12. Product Use.
Purchaser is solely responsible for determining the suitability of Products for specific applications. Ark is not liable for improper selection or misuse of its Products.
13. Intellectual Property.
All intellectual property provided by Ark remains its exclusive property. Purchaser agrees to maintain confidentiality and return any such materials upon request. No licenses are granted other than for intended use.
14. Use of Trademarks.
Purchaser may not use Ark’s name, trademarks, or trade names without prior written approval. Use must comply with Ark’s guidelines, and all trademark rights remain with Ark.
15. Confidentiality.
All information shared by Ark must be kept confidential and used only for the purposes intended. This obligation excludes information that is public, already known to Purchaser, or lawfully obtained from a third party.
16. Audit.
Purchaser may not audit or examine Ark’s financial or operational records unless expressly permitted in writing by an authorized officer of Ark.
17. Infringement and Indemnification.
Ark agrees to defend and indemnify Purchaser against intellectual property claims related to Ark’s proprietary Products, provided Purchaser gives prompt notice and cooperates fully. Ark is not liable for claims arising from Purchaser’s design specifications or third-party combinations.
18. Employee Authority.
Ark employees are not authorized to enter into legal agreements or make commitments regarding intellectual property or legal liability unless expressly authorized in writing.
19. On-Site Service Terms.
Services will be billed at Ark’s current rates.
Purchaser must prepare the site in advance.
Delays caused by unprepared sites will be billed.
Purchaser is responsible for providing all required local permits or regulatory compliance.
Ark reserves the right to delay or decline service at unsafe sites.
Purchaser is responsible for any site-related damages, except those caused by Ark’s gross negligence.
20. Compliance.
Purchaser agrees to comply with all applicable laws, including export, labor, safety, and anti-corruption regulations.
21. Relationship of Parties.
Nothing in this Agreement constitutes a partnership, joint venture, or agency between Ark and Purchaser.
22. Force Majeure.
Ark is not liable for delays or failures caused by events beyond its reasonable control, including natural disasters, labor disputes, or supply shortages. Performance deadlines will be extended accordingly.
23. Assignment.
Purchaser may not assign this Agreement without Ark’s written consent. Ark may assign its rights or obligations at its discretion.
24. Waiver.
Failure by Ark to enforce any part of this Agreement does not constitute a waiver of its rights.
25. Bankruptcy.
Either party may terminate outstanding obligations if the other becomes insolvent or files for bankruptcy.
26. Governing Law and Dispute Resolution.
This Agreement is governed by the laws of the State of Colorado. Any legal disputes shall be resolved exclusively in state or federal courts located in Colorado. Both parties waive any right to a jury trial. The prevailing party in any legal action is entitled to recover reasonable attorney’s fees and court costs.
27. Survival.
Provisions that by nature extend beyond the term of the Agreement will remain in effect after termination.
28. Severability.
If any part of these Terms is found to be unenforceable, the remaining provisions remain in full force and effect.
29. Entire Agreement.
This Agreement constitutes the full and exclusive agreement between Ark and Purchaser and supersedes all prior communications. Any modifications must be in writing and signed by both parties.