Airgas® Inc. – Terms & Conditions of Sale
October 16, 2015 at 1:22 pm in Legal
Except as provided in a separate written agreement, such as a Product Sale Agreement, negotiated by the parties and executed by authorized representatives of Seller and Buyer, each sale of Products or Services by Seller shall be governed by these Terms and Conditions of Sale (“Terms”). “Seller” refers to Airgas® USA, LLC or one of its Affiliates, the name of which will be reflected on the invoice for the Products or Services purchased by Buyer. “Affiliate” refers to an entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with Airgas® USA, LLC. “Buyer” refers to the purchaser of Products or Services from Seller. “Product(s)” refers to any goods or other items of tangible personal property provided by Seller to Buyer. “Services” refers to safety services and/or any other service provided by Seller and charged to Buyer. Seller’s acceptance of any order is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth herein. These Terms represent the entire agreement with respect to the sale or rental of Products and Services and, except as provided in a separate written agreement as set forth above, supersede all prior or contemporaneous written/oral communications between the parties and information in any Seller literature, website or catalog, and override and exclude any other terms and conditions stipulated, incorporated or referred to by Buyer, including without limitation any Buyer purchase order, and any prior course of dealing between the parties.
- AGREEMENT. Buyer shall not purchase any Products or Services on Seller’s website (the “Site”) unless Buyer is an authorized, registered user of the Site. By purchasing any Products or Services on the Site, Buyer accepts, without limitation or qualification, these Terms governing such purchase. If Buyer does not agree and accept, without limitation or qualification, these Terms, Buyer may not purchase from the Site. If these Terms are construed to be an offer, this offer expressly limits acceptance by Buyer to these Terms and notice of objection to any different or additional terms is hereby given. Seller reserves the right to modify and update these Terms at any time by e-mail, the Site or other commercially reasonable methods, and Buyer should carefully review these Terms before each purchase. These Terms, as modified, shall apply to all purchases of Products and/or Services on or after such update.
- TITLE TO PRODUCTS. Until Buyer pays Seller in full, title to the Products shall remain in Seller’s name and Seller shall have a purchase money security interest in the Products. If Buyer shall default in any payments, Seller shall have all the rights as holder of such title or as such secured party under the Uniform Commercial Code and/or any other law then in force; and Seller may, in addition, retain as rental any payments received by Seller on account of the purchase price of the Products, whether Buyer’s default shall have occurred before or after delivery. If Seller repossesses the Products, Seller may resell the Products after ten (10) days’ prior written notice to Buyer. Seller may file one or more financing statements to perfect its security interests. If necessary, Buyer shall execute such financing statements upon request. Buyer shall not cover, modify or remove any identification or other indicia of Seller’s ownership on any rental equipment. Title to all rental equipment shall remain in Seller’s name.
- CYLINDERS. Unless otherwise specified, cylinders, fittings and caps covered by these Terms are rented by Seller to Buyer at Seller’s current daily rates, beginning with the date of delivery. Rental charges are assessed as of the last day of each month or at the start of each annual lease period, as applicable. Buyer shall not permit cylinders or other storage containers furnished hereunder to be filled with any product not furnished by Seller or its authorized agent. Buyer shall return, in a good and non-contaminated condition, all cylinders, with valves closed, complete with caps and fittings and shall pay Seller the replacement value of: (1) any lost or damaged cylinders, caps or fittings and for any loss or damage caused by Buyer contamination; or (2) those cylinders not returned to Seller within three (3) months from date of shipment to the Buyer (other than those subject to an annual lease) or, if damaged and the damage can be repaired, the cost of making such repair. Payment by the Buyer of charges for damaged, lost or destroyed cylinders shall not give any ownership interest in the cylinders to the Buyer.
- REFRIGERANT CYLINDER RETURNS/DEPOSIT. Refillable refrigerant cylinders shall remain the property of Seller or its agent. Such cylinders shall not be used by Buyer for purposes other than the storage of gas products purchased from Seller or the return and reclamation of certain gases (e.g., refrigerants). Each refillable cylinder will be subject to a cylinder deposit fee, as established by Seller from time to time. Seller will refund the deposit fee when the Buyer returns the refrigerant cylinder unless the cylinder’s condition is deemed to be unfit for reuse, as determined by Seller, which determination shall be irrefutable sixty (60) days after the cylinder was returned to Seller.
- ONLINE PRICING. Online pricing may not be available at all Airgas® retail branch locations. Online pricing may not be valid for Buyers located outside of the contiguous 48 United States, including for Buyers located in Alaska, Hawaii, Guam, American Samoa, Puerto Rico or the U.S. Virgin Islands.
- TERMS OF PAYMENT. Unless otherwise specified, Buyer shall make payment in full within thirty (30) days after the date of Seller’s invoice. If Buyer fails to make any payment when and as due, Seller may charge Buyer interest at the lesser of one-and-one-half percent (1.5%) per month (minimum two dollars ($2.00)) or the highest rate permitted by law calculated from and excluding the due date thereof to and including the date of payment. If Buyer requests payment terms other than cash or cash on delivery (COD), Buyer represents that the purchases are made for business, commercial or agricultural purposes and not for personal, household, or family use. If Buyer has received credit approval from Seller, continued open account credit is subject to Seller’s assessment of Buyer’s financial condition and ability to pay. Buyer represents and warrants that Buyer is and shall remain solvent until Seller receives payment in full for the Products and/or Services. If Seller employs any collection agency or attorney to collect any amount due Seller, and/or to repossess any Products, Buyer shall pay all collection fees, attorneys’ fees, and court costs, in addition to the amount otherwise unpaid.
- SURCHARGES. Following notice from Seller, Buyer shall pay to Seller a surcharge in the event of any extraordinary, emergency or other unanticipated increases in the cost of manufacturing, supplying or distributing Product hereunder.
- DELIVERY. Delivery method for all orders shall be as stated on the Seller’s delivery ticket and/or invoice and, if not stated therein, shall be FOB Seller’s warehouse, or as otherwise determined by Seller. Seller shall have no obligation to arrange for any valuation of the Products over and above the valuation provided in the carrier’s tariffs or other rate schedules at the lowest rates of carriage. Delivery date(s) are determined from the date of each order of Products and are estimates of approximate dates of delivery, not a guarantee of a particular day of delivery. If Buyer delays acceptance of the Products when delivered or ready for shipment, Buyer shall forthwith pay to Seller the full price of the Products and shall also pay Seller such warehousing and pier charges and other expenses as Seller may incur as a result of Buyer’s delay. Seller reserves the right to decline or cancel any order at any time prior to shipment.
- RETURN OF PRODUCTS. No Products shall be returned to Seller without Seller’s written authorization. Buyer shall pay a fifteen percent (15%) restocking charge on all Products returned to Seller, except for returns provided for under Section 12 hereof.
- WARRANTY. Seller warrants that, at the time of delivery, all Products furnished hereunder shall conform to the manufacturer’s or Seller’s specification for the period of time set forth in such specification or, if none, for a period of ninety (90) days. Seller warrants that it will perform Services in a workmanlike manner, in accordance with customary industry standards. SELLER SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE.
LIMITATION OF LIABILITY. NEITHER SELLER NOR SELLER’S SUPPLIERS OF GAS PRODUCTS (“SELLER’S SUPPLIERS”) SHALL BE LIABLE TO BUYER FOR ANY DIRECT DAMAGES (EXCEPT AS EXPRESSLY PROVIDED HEREIN). NEITHER SELLER NOR SELLER’S SUPPLIERS SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, ARISING OR ALLEGED TO ARISE OUT OF OR IN CONNECTION WITH ITS PERFORMANCE OF SERVICES HEREUNDER OR WITH ANY PRODUCT OR EQUIPMENT SOLD OR LEASED HEREUNDER, WHETHER SUCH DAMAGE RESULTS FROM ANY NEGLIGENT ACT OR OMISSION OR IS RELATED TO STRICT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL SELLER’S LIABILITY ARISING OUT OF THESE TERMS EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE APPLICABLE PRODUCT OR SERVICE UNDER THESE TERMS DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
REMEDIES. BUYER’S EXCLUSIVE REMEDY FOR EACH UNEXCUSED FAILURE OF PRODUCT TO MEET SPECIFICATION SHALL BE, AT SELLER’S OPTION, TO RECEIVE A REFUND OF THE PRICE OF SUCH NON-CONFORMING PRODUCT OR REPLACEMENT THEREOF WITH PRODUCT THAT MEETS SUCH SPECIFICATION. BUYER’S EXCLUSIVE REMEDY FOR THE UNEXCUSED FAILURE BY SELLER TO DELIVER PRODUCT AS SPECIFIED, REGARDLESS OF THE CAUSE OF SUCH FAILURE, INCLUDING NEGLIGENCE, SHALL BE TO RECOVER THE DIFFERENCE BETWEEN THE COST TO BUYER OF ANY SUBSTITUTE FOR PRODUCT NOT DELIVERED AND THE LESSER PRICE OF SUCH QUANTITY OF PRODUCT HEREUNDER. WITH RESPECT TO THE FOREGOING REMEDIES, BUYER HEREBY RELEASES SELLER’S SUPPLIERS FROM ANY AND ALL CLAIMS, COSTS, FEES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES), DAMAGES AND LIABILITIES, WHETHER IN CONTRACT OR TORT (INCLUDING THOSE ARISING FROM SELLER’S SUPPLIERS’ NEGLIGENCE OR STRICT LIABILITY), ARISING FROM OR RELATING TO (I) SELLER’S FAILURE TO SUPPLY GAS PRODUCTS HEREUNDER OR (II) THE FAILURE OF GAS PRODUCTS TO MEET THE SPECIFICATIONS IN THE WARRANTY SET FORTH ABOVE. BUYER’S EXCLUSIVE REMEDY FOR THE FAILURE OF SERVICES TO MEET THE WARRANTY SET FORTH ABOVE SHALL BE, AT SELLER’S OPTION, TO HAVE SELLER RE-PERFORM SUCH SERVICES AT NO ADDITIONAL CHARGE OR TO RECEIVE A REFUND FOR THE PURCHASE PRICE OF THE DEFECTIVE PORTION OF THE SERVICES.
- REPRESENTATIONS OF BUYER. Buyer represents, warrants and covenants that (i) Buyer will use the Products and/or Services in accordance with all applicable laws and regulations and in conformance with recognized industry and professional standards; (ii) Buyer has used its own independent skill and expertise in connection with the selection and use of the Products; (iii) Buyer possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the Products; (iv) Buyer will ensure that the Products are safe for the intended use and that the Products are handled in a safe and professional manner; and (v) Buyer is a registered user of the Site and an authorized purchaser of the Products and/or Services. BUYER ACKNOWLEDGES THAT THERE MAY BE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS, THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF BUYER TO WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS. BUYER SHALL HAVE THE SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF ANY OF SELLER’S PRODUCTS FOR THE USE CONTEMPLATED BY BUYER.
INDEMNIFICATION BY BUYER. Buyer’s use of the Products and/or Services are at Buyer’s own risk, and Buyer shall defend, indemnify and hold harmless Seller from all liability and costs (including court costs and attorneys’ fees) resulting from claims, demands or actions brought against Seller by anyone (including without limitation any injuries or property damage) caused directly or indirectly by (i) Buyer’s breach of these Terms; (ii) Buyer’s negligence or willful misconduct related to any Products or Services; or (iii) Buyer’s violation of any applicable law related to any Products or Services.
- FORCE MAJEURE. Seller’s performance hereunder is subject to floods, strikes or other labor disturbances, fire, accidents, war, delays of carriers, inability to obtain raw materials, failure or allocation of normal sources of supply, terrorist act, machinery or equipment breakdown, plant shutdown, restraints of government, (whether or not it later proves to be invalid), or any other similar or dissimilar cause beyond Seller’s reasonable control (“Force Majeure Event”). Seller shall not be liable for any damages resulting from a Force Majeure Event, and Buyer waives any right to assert a claim against Seller in respect thereof.
- TAXES. Prices are exclusive of any amount of federal, state and/or local excise, sales, use, property, retailer’s occupation, gross receipts or similar taxes which may be imposed in connection with a transaction. If any such excluded tax is determined to be applicable, prices shall be increased by the amount of such tax. In the event that Buyer claims exemption, full or partial, from such taxes, a properly completed exemption certificate with a list of the applicable exempt purchases, which will be acceptable to the appropriate taxing authorities, must be provided. Buyer will provide the applicable exemption certificate for each Buyer location. Should such certificate be found invalid, Buyer agrees to bear the burden of any interest and penalties assessed.
- COMPLIANCE/ MSDS. Buyer, its employees and agents shall comply with all applicable federal, state and local laws regarding the safe handling, transportation and use of the Products, including without limitation under the Emergency Planning and Community Right-To-Know Act and the Occupational Safety and Health Act. Buyer acknowledges and agrees that Seller has provided Buyer with access to all relevant Material Safety Data Sheets (MSDS). Additional MSDSs and copies are available: (i) at the local Airgas® branch; (ii) by calling 919-368-8518; or (iii) by logging on to www.airgas.com. Buyer understands that the Products must not be used without first consulting the MSDS. Buyer will familiarize itself with and instruct its employees regarding all information and precautions disclosed in the safety and health information, including without limitation any MSDS, transmitted to Buyer by Seller or otherwise available to Buyer from Seller at any other time.
- TECHNICAL ASSISTANCE. Unless otherwise expressly agreed: (i) any technical advice provided by Seller with respect to the use of Products or Services furnished to Buyer shall be without charge; (ii) Buyer shall have sole responsibility for selection and specification of the Products or Services appropriate for the end use of such Products or Services; and (iii) SELLER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ASSUMES NO OBLIGATION OR LIABILITY FOR ANY TECHNICAL ADVICE, OR FOR ANY RESULTS OCCURRING AS A RESULT OF THE APPLICATION OF SUCH ADVICE. Examples of such complimentary technical advice include, without limitation, brochures, literature, website or catalog descriptions, MSDSs / SDSs, free on-line training resources, and similar information materials.
- CLAIMS. All claims by Buyer having anything to do with any Products or Services furnished by Seller shall be made in writing within ten (10) days after the delivery of the Products or completion of the Services and failure of Buyer to give such notice shall constitute a complete waiver by Buyer of any such claims and defense for Seller against any such claims.
- ITEMIZED CHARGES. The total amount due from Buyer may include various itemized charges, including: charges for the handling of hazardous materials and for compliance with laws and regulations concerning hazardous materials; charges for handling, delivery, and shipping; and/or charges for energy or fuel. None of the charges represents a tax or fee paid to or imposed by any governmental authority and all of the charges are retained by Seller. Seller has not specifically quantified the relationship between the charges and the actual costs associated with the charges, which can vary by product, service, time and place, among other things.
- ASSIGNMENT. Buyer shall not assign these Terms, in whole or in part, without Seller’s prior written consent, and any prohibited assignment shall be null and void.
- SEVERABILITY. If any provision of these Terms is or becomes invalid under any applicable law, then such provision shall be deemed reformed or deleted, but only to the extent necessary to comply with any such applicable law, and the remaining provisions of these Terms shall remain in full force and effect.
- ATTORNEYS’ FEES. In the event any action or legal proceeding is brought by Seller to enforce, interpret, protect or establish any provision of these Terms or right or remedy, Seller shall be entitled to recover as part of such action or proceeding, in addition to any other relief granted, reasonable attorneys’ fees and costs.
GOVERNING LAW; CLASS ACTION AND TRIAL BY JURY WAIVER. These Terms shall be governed by and construed in accordance with the substantive law of the State of Delaware, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Products and The Uniform Computer Information Transactions Act will not, for any purpose, govern or apply to these Terms or any transactions, performance or disputes hereunder. Both parties hereto hereby waive all right or entitlement to trial by jury in connection with any dispute that arises out of or relates in any way hereto or to Product or Services supplied hereunder. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum.
- AMENDMENT; BENEFICIARIES. These Terms may be amended or supplemented only in a writing executed by authorized representatives of Buyer and Seller. No person other than an authorized representative of Seller has any authority to agree on Seller’s behalf to any terms not set forth herein. As a part of the consideration for these Terms, the applicable provisions of Section 11 (Limitation of Liability) and Section 12 (Remedies) shall extend to and be enforceable by and for the benefit of Seller’s Suppliers.