1. Product Warranty and Specification. Seller warrants that the product delivered to Buyer shall conform to Seller's standard specifications for the product purchased hereunder, or to the custom product specification stipulated by the parties in a signed writing, and that at the time of delivery, Seller shall have good title and right to transfer the same and that the same shall be delivered free of encumbrances. Any services performed by Seller will be performed in a good and workmanlike manner. Seller will modify or correct any such services which have not been so performed if written notice of any such failure is given to Seller within 30 days of the date such service is performed. THE FOREGOING WARRANTY IS THE SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. From time to time, Seller may, pursuant to its change management procedures, make changes to such product, or such product’s source, raw materials, documentation, analytical procedures, packaging, method of manufacture or offering (“Product Changes”), provided however, except in the case of a force majeure or unforeseen event, Seller shall give Buyer at least three (3) months’ written notice before (i) stopping or interrupting the manufacture of the product, (ii) discontinuing the product as a general market offering in the applicable region, or (iii) making Product Changes that are found by Seller to cause statistically significant changes to the product specification based on audits and analytical results conducted pursuant to Seller’s change management procedures. Seller shall provide supporting data and test samples upon Buyer’s request.
2. Delivery & Stocking Requirements. The “Seller” shall be identified on the products and documents delivered to Buyer. Delivery shall be FCA Seller’s manufacturing or distribution facility, or where applicable, Seller’s delivery vehicle. All risk of loss shall pass to Buyer upon delivery. Title to equipment sold hereunder, including all accessories, other equipment and parts hereinafter attached or submitted, shall not pass to Buyer, and Seller shall have a security interest therein, until all unpaid sums are fully paid in cash. Title to other products shall pass to Buyer upon delivery. Transportation companies assume all liability for damage to goods from the time a shipment is received by them until the time it is delivered to the consignee. Seller’s liability for such damage ceases at the time of shipment. All shipments leaving Seller’s plant have been carefully inspected. Promptly upon receipt of goods, Buyer should inspect the shipment. If a shipment arrives with the crating or packaging damaged, Buyer shall have the carrier note the condition on the receipt. Shipments damaged in transit should not be returned to Seller; rather Buyer shall notify and file a claim with the carrier at once. Failure to follow this procedure will result in refusal by the carrier to honor any claims with a consequent loss to Buyer.
Non-standard local deliveries (e.g., evening, weekend or holiday) and expedited deliveries are subject to additional charges based on Seller’s actual costs plus handling fees. Products should not be returned for credit or warranty of claims unless authorized by Seller. Products in unused, saleable condition, with >75% of shelf life remaining, may be returned to Seller at Seller’s sole discretion only after specific written authorization by Seller. Authorized returns will be subject to a minimum thirty percent (30%) restocking and handling charge and must be returned to Seller by the delivering carrier, freight prepaid by Buyer, in accordance with Seller’s instructions.
If Buyer requires the stocking by Seller of (i) non-standard product or (ii) quantities of product in excess of Seller’s ordinary stocking levels, Buyer will be liable for, and agrees to pay Seller the Price for, all such product that expires before use by Buyer or that Buyer does not use by the expiration or termination of the Agreement. Seller reserves the right to so charge Buyer earlier if Buyer’s demand for such product declines and Seller reasonably believes that Buyer will not timely consume such product. Buyer shall have the right to receive any product for which Buyer is required to pay pursuant to this provision, provided however that such product is sold and accepted strictly “AS IS,” AND SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO SUCH PRODUCT, WHETHER EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, AND SELLER SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO BUYER’S ACCEPTANCE OR USE OF ANY SUCH PRODUCT.
3. Price and Charges for Product(s). The "Price" for product delivered to Buyer by Seller may include a Unit Price (when product is supplied in liquid or bulk form) and a Monthly Charge. The Price is subject to adjustment. If Seller provides replacement or additional equipment to a designated location, the Monthly Charge shall be adjusted and any applicable Unit Price shall vary in accordance with Seller's then prevailing prices. Seller, in its sole discretion, shall charge and Buyer hereby agrees to pay to Seller, surcharges for increases in Seller’s production and delivery costs caused by changes in law or increases in fuel, energy or feedstock costs (including but not limited to diesel fuel, natural gas and/or electric power affecting Seller’s producing facility(ies) (“Surcharges”). These Surcharges shall be in addition to the Unit Price and Monthly Charge. Any tax, assessment or excise levied or imposed by any present or future law of any governmental authority, if paid by Seller as the result of the sale and delivery of the products or any services described herein, shall be added to the price and paid by Buyer.
4. Maximum Requirements. If the basis of Seller’s commitment to supply is Buyer’s requirements for product rather than a stated quantity of product, regardless of whether a force majeure event has been or may be declared, Seller reserves the right not to supply to Buyer quantities of product in excess of one-hundred twenty percent (120%) of the lesser of (i) Buyer’s stated monthly forecast quantities of product, (ii) Buyer’s stated monthly estimated quantities of product, or (iii) the monthly average volume of product purchased by Buyer from Seller in the immediately previous calendar year. If Seller does supply such excess quantities, upon notice to Buyer, Seller may do so at a different unit price for the product, may collect from Buyer additional fees and expenses relating to supplying such excess quantities, may substitute other product meeting the product specification (notwithstanding any change management provision to the contrary), and may discontinue the supply of such excess quantities to Buyer.
5. Seller’s Equipment; Seller’s Cylinders. Title, possession and control of equipment supplied by Seller for purposes of delivering product shall at all times remain in Seller, and Seller shall have the right to remove the equipment upon expiration or termination of this Agreement. Upon any termination of this Agreement, or upon permanent cessation of Buyer’s requirements for product, Seller may remove applicable equipment from Buyer’s premises and Buyer’s applicable Monthly Charge shall cease effective upon the payment by Buyer of Seller’s unamortized installation costs plus removal expenses. With respect to cylinders and other containers furnished by Seller to deliver product, such cylinders are the property of Seller and are loaned to Buyer subject to the terms and conditions hereof. Unless otherwise agreed to in writing, Buyer agrees to return said cylinders in good condition, at Buyer’s risk and expense, with valves tightly closed, to Seller. Buyer further agrees to pay Seller, as demurrage, an amount payable monthly for so long thereafter as the said cylinders shall be detained by the Buyer, which demurrage shall be computed in accordance with Seller’s prevailing demurrage billing system. Buyer agrees to pay Seller, at Seller’s then prevailing cost, for the loss, destruction or damage beyond repair of said cylinders or fittings resulting from any cause while such cylinders are on loan to Buyer. In the case of damage permitting repair, Buyer agrees to pay the actual cost of repair incurred by Seller, plus cost of necessary transportation. Demurrage will apply until the cylinder is returned or, if the cylinder cannot be returned, until Seller is reimbursed its prevailing cost to replace said cylinder. Until such cylinders are returned, or until Buyer states in writing that Buyer is unable for any reason whatsoever to return such cylinders, Buyer shall be conclusively presumed to have possession or control of such cylinders. No claim that cylinders have been returned by Buyer will be honored unless Buyer holds a valid signed receipt on the form provided by Seller evidencing such return. The refilling of cylinders without Seller’s consent in writing is prohibited.
6. Invoicing and Payment. Seller may invoice Buyer as each delivery of product is made, as service is provided, monthly, or at Seller’s discretion. All payments due Seller hereunder shall be made to Seller at the location indicated on the invoice. All invoices shall be payable net 10 days or upon demand. Overdue amounts shall bear interest at the rate of 1 ½% per month or the prevailing legal rate, whichever is lower. The timely payment by Buyer of all amounts due and owing to Seller hereunder, including the Unit Price, Monthly Charge, Surcharges and any other charges contractually provided for hereunder, is an express condition to the continued performance by Seller of its obligations hereunder. Failure to make such payments in a timely fashion shall entitle Seller to discontinue deliveries without penalty, breach or default of any kind under this Agreement, and Seller may also impose new payment terms, including, but not limited to cash on delivery or auto pay or otherwise. All claims of Buyer relating to any invoice hereunder shall be made in writing within 30 days of receipt of invoice. Failure to give such written notice shall constitute a waiver of all claims related to such invoice. If, in Seller's discretion, the financial responsibility of Buyer becomes impaired, advance cash payment or satisfactory security shall be given by Buyer upon demand by Seller, and shipments may be withheld until such payment or security is received; and such action by Seller shall not constitute a change of payment terms hereunder. With respect to any monetary obligations of Buyer or Buyer's affiliates to Seller, Seller may (a) set off such obligations against any sums owing to Buyer or Buyer's affiliates; and/or (b) recoup such obligations from any amounts paid to Buyer or Buyer's affiliates by Seller. Title to any products sold hereunder, including all accessories, shall not pass to Buyer, and Seller shall have a security interest therein, until all unpaid sums are fully paid in accordance with Seller's pre-approved credit terms.
7. Limitation of Liability. Buyer acknowledges that there are hazards associated with the use of the product, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect its employees and others exposed to such hazards through Buyer's storage and use of the product. Seller shall provide Buyer with copies of Material Safety Data Sheets relating to the product for Buyer to make such warnings, and BUYER SHALL HOLD HARMLESS, INDEMNIFY AND DEFEND SELLER FROM AND AGAINST ANY LIABILITY INCURRED BY SELLER BECAUSE SUCH WARNINGS WERE NOT MADE. Buyer acknowledges that it can obtain and install devices to sample the product delivered to determine its compliance with specifications prior to use. Buyer assumes all risk and liability for loss, damages or injury to persons or to property of Buyer or others arising out of the presence or use of the product. BUYER SHALL DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM OR RELATING TO THE PRESENCE OR USE OF THE PRODUCT AFTER DELIVERY BY SELLER, WHETHER BEFORE OR AFTER ANY TRANSFER BY BUYER OF ANY PRODUCTS SOLD HEREUNDER TO ANY OTHER PARTY OR LOCATION, WHETHER BY WAY OF RESALE, DISPOSAL OR OTHERWISE, AND WHETHER SINGLY OR IN COMBINATION WITH OTHER PRODUCTS, REGARDLESS OF WHETHER BASED ON THE ALLEGED OR ACTUAL NEGLIGENCE OR STRICT LIABILITY OF SELLER.
No claim of any kind with respect to nondelivery of product shall be greater than the Unit Price payable hereunder for the product in respect to which such claim is made and Buyer's sole and exclusive remedy (except for the remedy of cancellation for material default) for delivery of nonconforming product shall be replacement by Seller of a like quantity of conforming product at no additional cost to Buyer. Seller shall not be liable in contract or tort (including negligence and strict liability) for any other direct, or any indirect, special, incidental or consequential damages arising out of its performance or non performance hereunder.
In providing services hereunder, Seller does not accept or assume liability for any defect in material or workmanship of equipment not manufactured by Seller or its affiliates, or for any condition or occurrence affecting the proper operation of equipment resulting from accident, negligence, abuse or misuse of the equipment, or any other cause whether or not similar to those described above.
8. Technical Assistance. Buyer agrees to assume full responsibility for making its own independent evaluation whether to use any technical assistance or advice furnished by Seller in connection with this Agreement, and Buyer agrees to assume all risk and liability for results obtained in reliance thereon.
9. Special Terms Relating to Sale of Equipment. For a period of one (1) year from the date of delivery of Seller’s equipment sold to Buyer hereunder, Seller warrants that at the time of shipment the equipment shall be free from defects in material and workmanship. THE FOREGOING WARRANTY IS THE SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The liability of Seller for sale of equipment is limited solely to replacing, repairing or issuing credit for, at the discretion of Seller, the parts that are found during the warranty period to have been damaged or defective upon shipment; provided that, Seller will not be liable under this warranty unless (i) Seller is promptly notified in writing by Buyer upon discovery of such damage or defect; (ii) the defective unit or part is returned to Seller, transportation charges prepaid by Buyer; (iii) the defective unit or part is received by Seller for adjustment no later than four (4) weeks following the last day of the warranty period; and (iv) Seller’s examination of such unit or part shall disclose, to its satisfaction, that such defects or failures have not been caused by misuse, neglect, improper installation, unauthorized repair or alteration or accident. If the equipment manufactured by Seller consists primarily of parts manufactured by others, Seller will only make available for the Buyer’s benefit those warranties which Seller has received from third party manufacturers. Any authorization of Seller for repair or alteration by the Buyer must be in writing to prevent voiding this warranty.
Notwithstanding any other provision hereof, to the extent permitted by law, with respect to equipment, title to any such products intended to be sold hereunder, including all accessories, other equipment and parts hereinafter attached or substituted, shall not pass to Buyer, and Seller shall have a security interest therein, until all unpaid sums are fully paid in accordance with Seller's pre-approved credit terms.
10. Force Majeure. Neither party hereto shall be considered in default in the performance of its obligations hereunder (other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, accident, act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with act of government and government regulations (whether or not valid), embargo, machinery or equipment breakdown, or any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of the party claiming excuse hereunder. Neither party hereto shall be required to make any concession or grant any demand or request to bring to an end any strike or other concerted act of workers. Either party affected by such event shall, promptly upon learning of such event and ascertaining that it has or will affect its performance hereunder, give notice to the other party, stating the nature of the event, its anticipated duration and any action being taken to avoid or minimize its effect. Regardless of the occurrence or non-occurrence of any of the causes as set forth in this section above, if for any reason, supplies of any product deliverable hereunder, or of feedstock for such product, from any of Seller's existing sources are curtailed or inadequate to meet Seller's own requirements and its obligations to its customers, Seller's obligation to deliver product during such period shall be reduced to the extent necessary, in Seller's sole judgment, to apportion fairly among Seller's own requirements and its customers (whether under contract or not), such product as received and as may be available in the ordinary and usual course of Seller's business from any such existing sources of supply at the location(s) from which deliveries hereunder are normally shipped. Seller shall not be obligated to purchase or otherwise obtain product, or feedstock to make product, to replace deliveries omitted or curtailed hereunder, and any such deficiencies in deliveries shall be canceled from this Agreement with no liability to either party therefor.
11. Dispute Resolution. Any dispute between the parties relating to this Agreement which cannot be resolved with reasonable promptness shall be referred to each party’s senior manager in an effort to obtain prompt resolution. Neither party shall commence any action or arbitration against the other until the expiration of 60 days from the date of referral to such senior managers. Nothing in this section shall preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.
12. Seller's Methods of Conducting Transactions. The prices of Seller’s products are predicated upon Seller’s prevailing methods for conducting transactions, including ordering, quality control, delivery, invoicing, payment collection and electronic business protocols, and such methods shall apply to transactions governed by these General Conditions. All requests from Buyer for Seller to use Buyer’s browser-based or other electronic systems are subject to Seller’s approval, and Seller will not pay fees to use Buyer’s systems. The parties agree to receive electronic documents and accept electronic signatures relating to transactions contemplated by this Agreement, including releases, purchase orders, purchase order acknowledgments, invoices and other transactions as may be agreed by the parties from time to time. Notwithstanding a choice of law that would dictate a different result, electronic documents and electronic signatures shall be a substitute for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not in writing.
13. Waiver. A waiver by Seller of strict performance with any of the terms and conditions of this Agreement shall not be a waiver of any subsequent failure to comply with such terms and conditions.
14. Assignment. This Agreement is not assignable or transferable by Buyer, in whole or in part, except with the prior written consent of Seller.
15. Governing Law. This Agreement shall be construed and governed by the law of the Commonwealth of Pennsylvania, United States of America, without regard to any applicable conflicts of law provisions. The terms of the Uniform Commercial Code, rather than the United Nations Convention on Contracts or the International Sale of Goods, shall apply.
16. Buyer acknowledge that products, software, and technical information (including, but not limited to, Service, technical assistance and training) provided under this agreement may be subject to export laws and regulations of the USA and other countries, and any use or transfer of the products, software, and technical information must be in compliance with all applicable regulations. Buyer will not use, distribute, transfer, or transmit the products, software or technical information (even if incorporated into other products) except in compliance with all applicable export regulations. If requested, Buyer also agrees to sign written assurances (e.g. End User Declaration) and other export-related documents as may be required to comply with all applicable export regulations.
17. Conflicts in Terms. In the event of any conflict between these terms and the terms of any purchase order or other terms presented by Buyer, these terms shall prevail. Notwithstanding any provisions therein to the contrary, no terms in Buyer’s purchase order or presented by other means which conflict with the conditions herein, or increase Seller’s obligation hereunder, shall be binding on Seller unless specifically identified and accepted in writing by an executive officer of Seller and until such acceptance is granted, Seller hereby objects to any such terms.