TERMS AND CONDITIONS FOR CALGAZ “ A DIVISION OF AIRGAS LLC, A COMPANY OF AIR LIQUIDE
Payment. Supplier will invoice Customer for the Products at the Prices and charges set forth . Customer shall make payment in full (without set off, counterclaim or deduction) by the 10th day following the date of invoice. Customer shall also pay all applicable taxes, except Supplier’s income tax. If Customer’s account is not paid in full by such payment day, Supplier may, at Supplier’s option, exercise any one or more of the following (in addition to any other remedies available to Supplier): (i) require Customer, as a condition of receiving Product, to prepay the delivery invoice plus a part of the past due amounts, as specified by Supplier; (ii) collect from Customer on any delinquent balance a charge at the rate of 1.5% per month or, if less, the maximum rate permitted by law; and/or (iii) terminate, in whole or in part, this Agreement.
Deliveries & Miscellaneous Services. a) Unless otherwise specified elsewhere in this Agreement, all Products shall be delivered by Supplier by commercial package delivery service at Customer’s expense. Title and risk of loss or damage shall pass to Customer when Supplier deposits the Product with the delivery service or as provided by the Incoterm mutually agreed to by the parties. Title shall not pass until the earlier of: (i) payment in full for the Products and (ii) (where the Customer resells the Products) immediately before the time at which resale by the Customer occurs. b) Customer shall monitor Product levels and give Supplier reasonable, advance notice when ordering Product. An order constitutes an offer by the Customer to purchase the Products in accordance with this Agreement. Customer is responsible for ensuring that the terms of the order and any applicable specification submitted by the Customer are complete and accurate. An order is only deemed accepted when Calgaz issues an order confirmation. c) It is Customer’s duty to check the condition and labeling of cylinders upon receipt to determine that they are fit for their intended use and report any problems to Supplier immediately. d) Additional services as described on Attachment A are available at Supplier’s then current standard rate. Any and all services provided by Supplier to Customer shall be governed by the terms of this Agreement unless the parties otherwise agree in writing.
Cylinders. Cylinder gas Products will be sold to Customer in cylinders (“Cylinders”), being either cylinders which remain the property of the Supplier (“Rental Cylinders”) or cylinders which become the property of the Customer upon sale (“Customer Cylinders”). Customer will handle, use and (as the case may be) dispose of Cylinders in compliance with all applicable federal, state and local laws, rules, regulations and other legal requirements and shall defend, indemnify and hold Supplier harmless from and against any and all legal proceedings and damages it may suffer if Customer breaches its obligations under this Section 5. Any Rental Cylinders (or, if the Supplier agrees) any Customer Cylinders shall be made available for the Supplier to collect (at such times reasonably requested by the Supplier) at the Customer’s expense.
Non Price Charges; Revision of Prices. a) Customer shall pay Supplier’s scheduled applicable non-price charges, including hazardous materials charge for the handling of hazardous material and for compliance with laws and regulations concerning hazardous materials and delivery charge in effect at the time of delivery, rental Cylinder charges and any other special non-price charges that Supplier may assess. None of these non-price charges shall be subject to Section 6(b) and they may be amended or others may be added at Supplier’s discretion. None of the charges represent a tax or fee paid to or imposed by any governmental authority, and all of the charges are retained by Supplier. b) Supplier may revise any of the Prices up to 5% in a given calendar year for any one or more of the Products by written notice to Customer. Furthermore, Supplier may increase Prices on one or more Products by an amount greater than 5% in a given calendar year by providing a price revision notice to Customer (“Price Revision Notice”). Within 15 days after the date of the Price Revision Notice, Customer may give Supplier a copy of a current written quote to Customer from a responsible manufacturer for the sale to Customer of like quantities of the Products in question on like terms and conditions and at a lower price. If Customer does not submit a quote within 15 days, the new Prices set forth in the Price Revision Notice will take effect on the date specified in such notice. If Customer submits a quote within 15 days, Supplier shall have an additional 15 days to match the quoted price, or to reinstate the Price that preceded Supplier’s increase, or to do neither. If Supplier matches the third party price or reinstates Supplier’s prior Price, the term of this Agreement shall be extended to a new Initial Term of the same length as the original Initial Term or, at Supplier’s option, of the same length as the term quoted by the third party. The third party price, if elected by Supplier, will take effect on the date specified in Supplier’s Price Revision Notice. If Supplier does not match the quoted third party price or reinstate the prior Prices, Customer may cancel this Agreement with regard to the Products in question by giving Supplier written notice by certified mail, return receipt requested within the next 30 days. The scheduled cancellation date stated in Customer’s notice must be no later than 30 days after such notice date.
Excuse of Performance. Supplier shall not be liable for failure to perform if prevented by circumstances beyond its reasonable control.
Allocation. If sufficient Product is not available from Supplier’s normal source of supply for any reason, Supplier may: (i) allocate Product among its customers; and/or (ii) make reasonable efforts to obtain additional Product from other sources provided Customer shall pay all additional costs associated with such Product. Allocation in regard to this section will completely satisfy and discharge Supplier’s supply obligations and Supplier will, therefore, not be deemed to be in breach of such obligations.
Warranties. Supplier warrants that gas Products manufactured by Supplier will comply with Supplier’s standard specifications. Any other Products manufactured by Supplier will conform to Supplier’s standard specifications. Supplier makes no warranty with respect to Products manufactured by others, but will, on request, to the extent permitted, pass on to Customer any applicable manufacturer’s warranty. Supplier warrants that any services performed pursuant to this Agreement will be performed in a good and workmanlike manner. SUPPLIER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Damage Limitations. SUPPLIER SHALL NOT BE LIABLE TO CUSTOMER FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. SUPPLIER’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM THE PRODUCTS, SUPPLIER’S FAILURE TO DELIVER SUCH PRODUCTS, 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 IN QUESTION, SUPPLIER SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM PRODUCTS NOT MANUFACTURED BY SUPPLIER AND CUSTOMER’S SOLE REMEDY SHALL BE AGAINST THE MANUFACTURER AND SHALL BE LIMITED TO THE REMEDIES CONTAINED IN THE MANUFACTURER’S WARRANTY. CUSTOMER 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 OMISSIONS OF THE PARTY CLAIMING DAMAGES OR THE PARTY FROM WHOM DAMAGES ARE SOUGHT. AS USED IN THIS SECTION, THE TERM “CUSTOMER” AND “SUPPLIER” SHALL INCLUDE NOT ONLY THE PARTY TO THIS AGREEMENT BUT ALSO ALL OF ITS AFFILIATES. THE PROVISIONS GOVERNING DAMAGE LIMITATIONS AND INDEMNITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE EXPIRATION, TERMINATION, OR CANCELLATION OF THIS AGREEMENT.
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 and defend the other party to the extent of the indemnifying party’s negligence.
Warning Concerning Hazardous Nature of Products and Training Obligations. Customer acknowledges: a) that the Products and related equipment are hazardous and must be handled accordingly; b) the Products are classified by the U.S. Occupational Safety and Health Administration (“OSHA”) as hazardous chemicals, and that there are hazards associated with the possession and use of the Products, and that Customer must take proper account of those hazards and deal with them appropriately; c) it will warn all persons who may be exposed to any hazards relating to any of the Products and equipment and shall train them in the proper use of the Products and equipment; d) that Supplier has supplied Customer with all relevant Safety Data Sheets (“SDS”) relating to the Products, and that more SDS are available from Supplier on request; e) the Customer is obliged to develop and implement a written chemical hazard communications program for its employees regarding all hazardous chemical Products; and f) the Products must not be used without consulting the SDS, and Customer will ensure that all employees, customers and others who may be exposed to the Products receive and refer to the SDS. After delivery of Products to Customer pursuant to this Agreement, Customer assumes all risk and liability arising out of the presence, storage, transport or use of the Products.
Compliance with Laws. Customer shall comply with all laws, ordinances, rules and regulations now in force or hereafter adopted which relate to and/or have jurisdiction over the purchase, storage, use, transportation or resale of the Products, use of the cylinders, and all other aspects of Customer’s operations, including all anti-bribery and anticorruption laws and regulations such as the U.S. Foreign Corrupt Practices Act of 1977, as amended (collectively, “Anticorruption Laws”), and any applicable licensing, permitting and registration obligations and environmental laws. Customer shall obtain all permits, licenses and consents required by such laws, ordinances, rules and regulations. Further, it is the responsibility of the Customer, as stated above, to warn and protect its employees and others exposed to the hazards posed by Customer’s storage and use of the Product and the Cylinders. Customer represents that it has instituted and maintained policies to ensure and are reasonably expected to continue to ensure, compliance with Anticorruption Laws. Customer represents that it is not and its officers, directors, senior managers, partners, owners, principals, or subcontractors (collectively, “Related Parties”) are not an executive, official, employee or agent of: (i) a governmental department, agency or instrumentality, (ii) a political party, or (iii) a public international organization (collectively, “Government Officials”). Customer agrees that if Customer or its Related Parties become a Government Official, the Customer will promptly notify Supplier.
Resale. If Customer resells the Products: a) Customer is fully aware of the limitations and exclusions of Supplier’s warranty, compliance with law, liability and damages obligations as set forth herein; and Customer agrees to clearly communicate those obligations, limitations and exclusions to Customer’s own customers and to obtain from each of its customers, and provided to Supplier in advance, in form and content acceptable to Supplier, the customer’s agreement to abide by those obligations, limitations and exclusions, including but not limited to the exclusion of Supplier’s liability for punitive, consequential and incidental damages. Customer will also indemnify Supplier against any claims by any of Customer’s customers against Supplier that are covered by such limitations and/or exclusions of Supplier’s warranty, liability or damages; b) Customer is not an agent of Supplier but is an independent contractor acting on its own with no right to bind Supplier in any way. Customer shall not, for any purpose, use any of Supplier’s (or its affiliates’) trademarks or names or any other mark incorporating such trademarks or names without Supplier’s prior written consent, which consent may be revoked at any time. Customer shall at all times provide Supplier with a current certificate of exemption for resale of Product, in form and content acceptable to Supplier and valid under the laws of the state(s) having jurisdiction over the resale; c) Customer shall purchase and maintain, at its expense, adequate liability insurance, including contractual and product liability coverage, covering all claims against and all liability of Customer and Supplier for injury to persons (including death) or damage to property. The amount of such insurance shall be at least $3 million combined single limit per occurrence, shall be in form and substance satisfactory to Supplier, and shall provide for 30-days prior written notice to be given to Supplier before the insurance is cancelled or materially changed. The insurance shall include Supplier as an additional insured, with primary coverage to all other insurance and waiver of subrogation in favor of Supplier. Customer shall also at all times maintain, at its expense, Worker’s Compensation insurance in amounts as required by law. Customer shall cause all rights of subrogation against Supplier to be waived under any insurance contract insuring Customer’s property. Customer shall also provide to Supplier certificates of such insurance referred to above, and current updates thereof shall be provided to Supplier at all times.
Export Control Laws. Customer will at all times comply with, and all shipments of Product hereunder will at all times be subject to, U.S., U.K. and/or E.U. export control laws applicable to the re-export of U.S. and/or U.K. goods or technology. Customer will not make any transfer, disposition or re-export of U.S. and/or U.K origin Products or technical data, including Customer’s products incorporating Product sold hereunder (if applicable), which could violate U.S., U.K. and/or E.U export control laws, rules or regulations, as applicable.