Terms and Conditions of Sale
Fluid-Air Products Inc. (“Seller”)
WE ACKNOWLEDGE THANK YOU FOR YOUR ORDER. WE ARE PREPARED TO ACCEPT THE ORDER ONLY IF YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. WE REGARD ANY ORDER THAT YOU SEND TO US AS A DOCUMENT THAT IDENTIFIES ONLY THE PRODUCTS AND SERVICES YOU ARE ORDERING FROM US AND NOT AS A DOCUMENT THAT ADDS TO OR MODIFIES THESE TERMS AND CONDITIONS. ALL OTHER TERMS AND CONDITIONS IN YOUR ORDER ARE EXPRESSLY REJECTED. YOU (as the “Buyer”) SHOULD ADVISE US PROMPTLY IF ANY OF THE TERMS AND CONDITIONS BELOW ARE NOT ACCEPTABLE TO YOU. UNLESS YOU GIVE SUCH NOTICE, YOU WILL HAVE ACCEPTED THESE TERMS AND CONDITIONS AND WE WILL PROCEED AS THOUGH THEY ARE MUTUALLY BINDING ON BOTH OF US. DIFFERENT TERMS AND CONDITIONS AT A DIFFERENT PRICE FROM THOSE GENERALLY APPLICABLE CAN BE NEGOTIATED UPON REQUEST, BUT SHALL APPLY ONLY IF SIGNED BY A PRESIDENT OR DIRECTOR OF FLUID-AIR PRODUCTS INC.
1. Ship dates by Fluid-Air Products Inc. for the products ordered by Buyer (“Products”) are approximate and Fluid-Air Products Inc. will not be liable for any delays in delivery for whatever reason unless the parties have expressly agreed in a writing signed by Fluid-Air Products Inc. to specific liquidated damages for late shipments. Fluid-Air Products Inc. ships all orders complete and does not accept or support backorders.
2. Prices indicated by Fluid-Air Products Inc. are based upon the prices in effect as of the date of this document. Unless otherwise agreed to in a writing signed and delivered by Fluid-Air Products Inc.’s authorized representative, prices quoted by Fluid-Air Products Inc. are subject to change without notice at any time, including (without limitation) between the date of Buyer’s order and the date of shipment. Buyer shall be liable for the prices in effect on the date of shipment. Unless expressly stated otherwise on the reverse side hereof, all excise, privilege, occupational, sales, use and other taxes, foreign and domestic, applicable to the sale under the order shall be added to and become part of the purchase price.
3. Fluid-Air Products Inc. may accept subsequent changes in ship dates, purchase prices, and quantities of Products requested by Buyer in a revised ordering document issued by Buyer without having been deemed to have added to or modified any of these terms and conditions.
4. Products that are not in conformance with the description in the order agreed to by Fluid-Air Products Inc. are returnable for credit or replacement, provided Fluid-Air Products Inc. is advised in writing within thirty (30) days of shipment by Fluid-Air Products Inc. of such non-conformance and written authorization therefore is given by Fluid-Air Products Inc.. Approved returns must be shipped freight prepaid and arrive in good condition to qualify for credit or replacement. Buyer must make payment of the purchase price within the time allotted for payment even if Buyer has not completed its inspection of the Products, but such payment shall not constitute acceptance of the Products or impair Buyer’s rights or remedies it may have hereunder for nonconforming Products.
5. Fluid-Air Products Inc. fulfills orders based upon part numbers established and maintained by Fluid-Air Products Inc. for its Products. It is your responsibility to ensure that any part numbers you assign and specify on your order correspond to the correct Fluid-Air Products Inc. part number. If you modify any drawings previously submitted to us, you need to notify us of the change in writing and provide us with the updated drawing. Changes in revision numbers noted on an order are not adequate notice.
6. In the case of Products not specially manufactured for the Buyer, Buyer may cancel shipment of the Products only by notice received by Fluid-Air Products Inc. five (5) or more days prior to the original ship date, subject to a handling/administrative charge of 15%. In the case of Products specially manufactured for the Buyer, and unless explicitly stated otherwise on the quotation, Buyer may cancel shipment of the Products only by notice received by Fluid-Air Products Inc. sixty (60) or more days prior to the original ship date, subject to a charge of 50% of the selling price to fairly compensate Fluid-Air Products Inc. for the estimated material and labor costs incurred.
7. The original ship date may not be rescheduled beyond one year. If shipment is rescheduled by Buyer to more than six months beyond the originally contracted ship date, Fluid-Air Products Inc. reserves the right to cancel the contract created by Fluid-Air Products Inc.’s acceptance of the order and collect cancellation charges. Unless otherwise specified on the reverse side hereof, all shipments shall be made by any mode of transportation deemed suitable to Fluid-Air Products Inc., f.o.b. Fluid-Air Products Inc.’s loading dock, and risk of loss to the Products shall pass to the Buyer upon delivery by Fluid-Air Products Inc. to the carrier for shipment.
8. In the case of Products not specially manufactured for the Buyer, Fluid-Air Products Inc. may consider returns contingent upon reference to the original invoice and subject to a 25% restocking charge. No items will be accepted for return without written authorization, which if approved will then be assigned a corresponding Return Goods Authorization (RGA) number. Product must be in original packaging and resealable condition, with the RGA number clearly affixed. Shipping charges on all Products to be returned must be prepaid.
9. In order to maintain consistently high service, marketing and support for its products, Fluid-Air Products Inc. permits resale of its products into the aftermarket only by authorized resellers. Accordingly, Buyer states that all of the ordered products are solely for Buyer’s use. Buyer further agrees not to resell Fluid-Air Products Inc.’s products unless Buyer receives express written permission from Fluid-Air Products Inc..
10. All intellectual property and all tooling and other tangible manufacturing assets of Fluid-Air Products Inc. used to fulfill Buyer’s order shall remain the property of Fluid-Air Products Inc. and no right or interest of any kind whatsoever in any of the foregoing shall be construed or interpreted as having been granted or otherwise conveyed to Buyer, either expressly, or by implication, estoppel or otherwise. Any tooling sold to Buyer will be limited to that which is separately quoted by Fluid-Air Products Inc., which quote expressly states that the price indicated therein by Fluid-Air Products Inc. is “for purchase” or “for sale” of the tooling described therein rather than as an additional charge to defray, whether whole or in part, Fluid-Air Products Inc.’s tooling costs. Buyer represents and warrants that it has title to any material, specification or design it may provide to Fluid-Air Products Inc., and that Fluid-Air Products Inc.’s possession and reliance upon the same in connection with the manufacture, sale or use of the Products shall not constitute infringement of any patent, trade secret or other third party interest.
11. For 1 year from the date of shipment, Products manufactured and/or sold by Fluid-Air Products Inc. shall, when properly installed, maintained and operated in accordance with the recommendation of Fluid-Air Products Inc. and the manual of instructions, be free of defects in material and workmanship at time of shipment. In no event shall Fluid-Air Products Inc. be obligated under this warranty or otherwise in any way whatsoever for normal wear and tear or for any Product which, in Fluid-Air Products Inc.’s sole and exclusive determination, has been subjected to accident, abuse, misapplication, improper repair or alteration, improper installation or maintenance, excessive operating conditions or for defects or failures resulting from Buyer’s specifications or designs, or otherwise caused by Buyer, including without limitation defects or failures resulting from Buyer’s manufacture, distribution, sale or promotion of its own products. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE IN THIS PARAGRAPH, FLUID-AIR PRODUCTS INC. MAKES NO OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, WHICH ARE HEREBY DISCLAIMED, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Fluid-Air Products Inc.’s sole liability and Buyer’s sole and exclusive remedy for Fluid-Air Products Inc.’s breach of warranty or otherwise is expressly limited to the replacement of any Products sold hereunder, which Fluid-Air Products Inc. determines are not in conformance with the limited warranty of Fluid-Air Products Inc. expressly stated herein, provided Fluid-Air Products Inc. is advised in writing of such non-conformance within thirty (30) days of the date of discovery thereof and said non-conforming Products are returned F.O.B. Fluid-Air Products Inc.’s warehouse promptly thereafter but not later than three (3) months from the date of return goods authorization issued thereof by Fluid-Air Products Inc.. Anything contained herein to the contrary notwithstanding, Fluid-Air Products Inc. retains the right, at Fluid-Air Products Inc.’s sole and exclusive option, to render credit for or refund of the purchase price in lieu of furnishing a replacement product.
13. IN NO EVENT SHALL FLUID-AIR PRODUCTS INC. BE LIABLE HEREUNDER OR OTHERWISE FOR LOSS OF PROFITS, OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR IN ANY AMOUNT, ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE PRODUCTS AND RELATED SERVICES PROVIDED BY FLUID-AIR PRODUCTS INC. HEREUNDER, EVEN IF FLUID-AIR PRODUCTS INC. HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. FLUID-AIR PRODUCTS INC.’S TOTAL AND EXCLUSIVE LIABILITY FOR NONPERFORMANCE UNDER THIS AGREEMENT, INCLUDING NONPERFORMANCE CAUSED BY FLUID-AIR PRODUCTS INC.’S GROSS OR ORDINARY NEGLIGENCE, SHALL BE STRICTLY LIMITED TO THE COST OF REPLACEMENT OF THE PRODUCTS PROVIDED HEREUNDER. IN NO EVENT SHALL DAMAGES EXCEED THE AMOUNT EQUAL TO THE PRICE OF THE PRODUCTS PAID TO FLUID-AIR PRODUCTS INC. PURSUANT TO THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT SUCH EVENT WAS FORE-SEEABLE BY EITHER OR BOTH PARTIES. BUYER SHALL LOOK ONLY TO FLUID-AIR PRODUCTS INC. FOR REDRESS OF ITS DAMAGES CAUSED BY ANY DEFECT IN THE PRODUCTS, IN ANY RELATED SERVICES, OR BY FLUID-AIR PRODUCTS INC.’S FAILURE TO FULLY PERFORM AS REQUIRED HEREUNDER, AND SHALL NOT LOOK TO ANY AFFILIATE OF FLUID-AIR PRODUCTS INC. FOR THE SAME.
14. Shipments shall be at all times subject to the approval of Fluid-Air Products Inc.’s credit department. Fluid-Air Products Inc.’s remedies with respect to any breach of the agreement made between Buyer and Fluid-Air Products Inc. shall be cumulative, and, without limiting the generality of the foregoing, Fluid-Air Products Inc. shall have the right to suspend its performance or terminate the agreement in the event of Buyer’s non-payment of the purchase price for any delivery of Products even though the agreement may provide for the delivery of Products in more than one installment.
15. These terms and conditions constitute the final, complete and exclusive agreement between Buyer and Fluid-Air Products Inc. No reference herein to Buyer’s inquiry or order shall in any way incorporate different or additional terms or conditions, which are hereby objected to. No rescission, waiver, discharge, or modification of the agreement shall be binding upon Fluid-Air Products Inc. unless made in writing signed and delivered by Fluid-Air Products Inc.’s authorized representative. No prior course of dealing or usage of trade not expressly set forth herein shall be admissible to explain, modify or contradict the agreement. Buyer acknowledges and agrees that any and all representations, promises, warranties or statements by Fluid-Air Products Inc.’s salesperson or agent that differ in any way from the terms of this writing shall be given no force or effect. The invalidity of any one provision constituting part of the agreement between Buyer and Fluid-Air Products Inc. shall not affect the validity of the remainder of such provision or the remaining provisions of the agreement.
16. The agreement between Fluid-Air Products Inc. and Buyer shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the laws of the State of Missouri, U.S.A. without reference to the conflicts of laws principles thereof. Any action for breach of the agreement shall be commenced within one (1) year after the cause of the action has accrued. THE EXCLUSIVE FORUM FOR CLAIMS AGAINST FLUID-AIR PRODUCTS INC. SHALL BE ST. LOUIS, MISSOURI, OR THE U.S. DISTRICT COURT FOR MISSOURI. Fluid-Air Products Inc. and Buyer irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of the venue in such courts and their rights to jury trial.
17. Buyer agrees to indemnify and hold Fluid-Air Products Inc. harmless for any and all damages caused by Buyer’s breach of these Terms and Conditions.
18. Payment terms on all invoices rendered by Fluid-Air Products Inc. under the Agreement, except as expressly provided herein shall be net thirty (30) days from invoice date. Fluid-Air Products Inc. shall be entitled to charge a finance charge of two percent (2%) per month, i.e., twenty-four percent (24%) annually, on any account past due over thirty (30) days. Buyer agrees that if its account hereunder is referred for collection to an attorney or agency, Buyer will pay all of Fluid-Air Products Inc.’s attorneys’ fees and other costs of collection, which other costs include, but are not limited to, courts costs, expert witness fees, execution costs and filing fees. Interest shall accrue on all sums outstanding at the rate specified above notwithstanding the entry of judgment. In the event any finance charge is determined to be excessive by a court or other tribunal, such charge shall be reduced to the maximum allowable under the law. Buyer pays all invoices rendered by Fluid-Air Products Inc. for reimbursement of Fluid-Air Products Inc.’s expenses and for the services provided to Buyer by Fluid-Air Products Inc.’s representative(s) for work performed. In addition, Buyer shall pay all invoices rendered by Fluid-Air Products Inc. for the delivery of the Products to Buyer at the purchase price for the Products indicated by Fluid-Air Products Inc. in its quotation to Buyer for the period of time, if any, as specified therein and as well the fair and reasonable value of all replacement parts provided by Fluid-Air Products Inc. for the proper repair and maintenance of any equipment covered by Buyer’s order as accepted by Fluid-Air Products Inc.. Prices for the Products indicated by Fluid-Air Products Inc. on or before the date the Agreement is made between Buyer and Fluid-Air Products Inc. are based upon the prices in effect as of such date. Unless otherwise indicated in Fluid-Air Products Inc.’s quotation or otherwise agreed to in a writing signed by Fluid-Air Products Inc.’s authorized representative, Product prices quoted by Fluid-Air Products Inc. are subject to change without notice at any time.