Terms and Conditions of Sale
Deliveries; Inspection and Acceptance
Unless otherwise specified, delivery of the goods by Supplier to the carrier at the shipping point shall constitute delivery to you. In the event that Supplier delivers goods directly, all goods shall be delivered F.O.B. Supplier’s delivery vehicle at your designated facility. Title and risk of loss or damage (for goods being sold) shall pass to you upon delivery of goods to the carrier, or if delivered by Supplier, upon arrival at your facility.
It is your duty to check the condition and labeling of goods immediately upon receipt to determine that they are fit for their intended use and to report any nonconformity to specification or warranty to the Supplier within 15 days. Failure to give timely notice to Supplier shall constitute acceptance of the goods. Goods shall not be returnable to supplier after acceptance without supplier’s written consent.
Deliveries at any time during any labor disturbance affecting you shall be at Supplier’s sole option. If Supplier does deliver during a labor disturbance, then you assume the entire risk and agree to compensate Supplier for any additional costs (including attorneys’ fees), damages and liabilities (including those resulting from the negligence or willful acts of Supplier) related to the disturbance.
Deliveries of goods shall be measured by Supplier using the method regularly used by Supplier for the type of delivery made.
Cylinders and Vessels
All cylinders and other vessels (gas or liquid) are and shall remain Supplier’s sole property, unless otherwise specified in writing as “sale” or “customer owned,” and are merely loaned to you, as buyer of their contents, for your convenience.
You agree to return each cylinder or vessel when empty to the place of business from which it was delivered at your expense. Until cylinders or vessels are returned to Supplier, you agree to pay Supplier’s then current monthly rental or yearly lease charge on each cylinder or vessel, or such other rates as may be agreed upon between you and Supplier.
You agree that all cylinders or vessels and all fittings or attachments to them shall be returned in the same condition (except for contents) as received, and that you shall pay current market price for any loss, damage, or repair to them, from whatever cause.
You agree not to loan or deliver cylinders or vessels to anyone other than Supplier or to have loaned cylinders or vessels refilled, modified or otherwise worked on by anyone other than Supplier, and to keep cylinders and vessels free of any lien, seizure, or other claim by any third-party.
If any cylinders or vessels are not returned to Supplier, for any reason, you agree to pay Supplier’s then current loss-of-use charge for the cylinder or vessel. If any unreturned cylinder or vessel later comes into your possession, you agree to return it to Supplier, and Supplier will make an appropriate credit to your account.
Payment and Invoice Charges
You agree to pay Supplier within thirty (30) days of the date of invoice all charges for products sold, rented and leased cylinders, equipment rental, loss or damage to leased or rented equipment, repair work and other goods and services received. You also agree to pay all applicable taxes, except Supplier’s income tax.
You agree to pay all invoices in accordance with the stated terms. You agree that any past due amounts may bear interest from the date due until paid at the rate of 18% per annum but in no event in excess of the maximum rate or amount allowed by applicable law. You agree to pay (regardless whether litigation is commenced) Supplier’s attorneys’ fees, court costs, and all other costs of collection that Supplier may incur in the enforcement and collection of your obligations.
You agree that a returned check charge of $25.00 may be assessed on any check returned to Supplier unpaid by your bank, as well as any other relief provided by the law, but in no event in excess of the maximum allowed by applicable law.
No part of this Agreement, nor any charge or receipt by Supplier, is supposed to permit Supplier to impose interest or other amounts in excess of lawful amounts, and shall be deemed automatically constrained by this provision. If an excess occurs, Supplier will apply it as a credit or otherwise refund it and the rate or amount involved will automatically be reduced to the maximum lawful rate or amount. To the extent permitted by law, for purposes of determining Supplier’s compliance with the applicable law, Supplier may calculate charges by amortizing, prorating, allocating and spreading.
Default and Repossession
You agree that if you fail in any way to perform in accordance with the terms and conditions of this sale and to the extent permitted under applicable law, Supplier may enter your premises where the loaned cylinders or vessels and attachments to them and any other rented equipment belonging to Supplier may be located, retake possession of them, and that Supplier or Supplier’s agents shall not be held liable in any way to you by reason of such retaking and removal. You shall be liable for the cost of repossession.
You further agree that if you fail to pay for products in accordance with these terms and conditions, you will return such products to Supplier immediately upon demand. You further agree that any deposits held by Supplier from or any credits on your account may be applied to outstanding balances owed by you. You also agree that you shall remain liable for any unpaid charges until paid in full.
Limited Warranty
Supplier warrants that gas products manufactured by Supplier will comply with Compressed Gas Association (CGA) guidelines. Any other goods manufactured by Supplier or services provided by Supplier will conform to Supplier’s standards specifications. Supplier makes no warranty with respect to goods manufactured by others, but will, on request, to the extent permitted, pass on to you any applicable manufacturer’s warranty. Supplier makes no other warranty or representation of any kind, expressed or implied, and expressly disclaims any warranty, implied or expressed, of merchantability or fitness for particular purpose.
Supplier’s goods and services are intended only for purchase by persons skillful in the maintenance and use of such goods and services. You represent that you are so skilled. To the extent permitted by law, Supplier’s limited warranties shall not extend to any person or entity other than Supplier’s original customer.
Indemnity
If there is any injury (including death), loss or damage to the person or property of any third-party (including employees of either party), then, subject to any limitations set forth in this Agreement, each party agrees to indemnify the other party to the extent of the indemnifying party’s negligence.
Damage Limitations
Supplier shall not be liable to you for incidental, consequential, or punitive damages. Supplier’s sole liability and your sole remedy for any damages, including but not limited to damages resulting from the goods, supplier’s failure to deliver such goods, the cylinders or the maintenance of the cylinders, shall be limited to, at supplier’s option, the refund of the purchase price or replacement of the product, cylinder or service or service in question. Supplier shall have no liability for any damages resulting from products not manufactured by Supplier, and your sole remedy shall be against the manufacturer and shall be limited to the remedies contained in the manufacturer’s warranty.
You must notify supplier of any claim within 15 days of the event giving rise to such claim or such claim is waived. The limitations contained in this section shall apply regardless of whether the claim for damages is based on breach of contract, breach of warranty, tort or otherwise, and shall apply even where such damages are caused in whole or in part, by the negligence, gross negligence or acts and/or omissions of the party claiming damages or the party from whom damages are sought.
Warning Concerning Hazardous Nature of Products and Training Obligations
You acknowledge that: a) the gas products and related equipment are hazardous and must be handled accordingly; b) those goods are classified by the US Occupational Safety and Health Administration (“OSHA”) as hazardous chemicals, and that there are hazards associated with the possession and use of the goods; and c) you must take proper account of those hazards and deal with them appropriately.
You shall warn all persons who may be exposed to any hazards relating to any of the goods and equipment and shall train them in the proper use of the goods and equipment. You acknowledge that Supplier has supplied you with all relevant Material Safety Data Sheets (“MSDS”) relating to the goods, and that more MSDS are available from Supplier on request. You are also aware that OSHA regulations require you to develop and implement a written chemical hazard communications program for your employees regarding all hazardous chemical goods.
You understand that the goods must not be used without consulting the MSDS and will ensure that all employees, customers and others who may be exposed to the goods receive and refer to the MSDS.
Applicable Laws and Severability
The laws of the state of customer’s address shall govern this agreement. The invalidity or unenforceability of any other provision of this agreement under any applicable laws shall not affect the validity or enforceability of any other provision of this agreement.
Entire Agreement
This agreement constitutes the parties’ entire agreement with respect to the subject matter hereof. No provision of any purchase order or similar document shall alter or add to their agreement.
Notices
Notices given in connection with this agreement must be in writing and sent to the parties’ addresses above or any substitute address that either party may provide to the other by notice hereunder. Notice shall be considered to be given on the date it is sent by prepaid mail or, if otherwise delivered, on the date of delivery.
Compliance with Laws
You shall conform to all laws, ordinances, rules and regulations now in force or hereafter adopted which relate to and/or have jurisdiction over the purchase, storage or use of the goods and/or related equipment and all other aspects of your business and operations, including any applicable licensing, permitting and registration obligations and environmental laws.
Equipment Sales
If any equipment or similar item of a unit cost is sold by Supplier to you, you hereby grant Supplier a security interest lien in that item to secure your payment for the purchase price, and you authorize Supplier to prepare, sign and record a financing statement for both parties in order to protect Supplier’s security interest lien.
Excuse of Performance
Supplier shall not be liable for failure to perform if prevented by circumstances beyond its reasonable control.
Assignment; Resale
You must receive Supplier’s consent to assign this Agreement. This Agreement shall be binding on and inure to the benefit of the parties and their permitted successors and assigns.
The goods shall be for your own use, and not for resale, unless you enter into written resale addendum with Supplier.