IN THE ABSENCE OF AN EXECUTED AGREEMENT WITH YOU, OUR SUPPLY OF PRODUCT IS EXPRESSLY CONDITIONED UPON THE FOLLOWING TERMS AND CONDITIONS. YOUR RECEIPT AND CONSUMPTION OF PRODUCT FROM Linde, INC. OR Linde DISTRIBUTION, INC. OR ANY OTHER Linde BUSINESS IN THE UNITED STATES OF AMERICA CONSTITUTE YOUR EXPRESS ACCEPTANCE OF SUCH TERMS AND CONDITIONS.
TERMS AND CONDITIONS OF SUPPLY
1.
PRICES AND PAYMENT.
Seller will invoice Buyer and Buyer will pay Seller the Prices for Product, equipment, or services supplied hereunder and any charges and surcharges related thereto, including those associated with regulatory and environmental compliance, obtaining power and transportation and, if Seller incurs costs associated with greenhouse gas emissions, in addition to the Prices, Seller will invoice Buyer and Buyer will pay Seller a greenhouse gas emissions reduction charge or surcharge for each delivery of Product to Buyer’s Location(s). Seller will have the right to revise the Prices by giving Buyer not less than fifteen (15) days prior written notice of the effective date of such revision. If Seller provides Buyer with product(s), equipment and/or services not specifically covered by the purchase order to which these terms and conditions apply, the prices, charges and surcharges as are set forth in Seller’s schedule applicable for such product(s), equipment or services will apply, any such product(s) will meet industry standards for purposes of Article 4 and any such product(s), equipment or services will be deemed to be provided hereunder and will be subject to the terms and conditions set forth herein. In addition, Buyer will pay or reimburse Seller for any sales, property, use, excise or other duty, tax, charge or fee now or hereafter imposed by reason of any sale, delivery or furnishing of any Product, equipment or services hereunder. Terms of payment will be net ten (10) days following date of invoice. If Buyer fails to make timely payment in accordance with the terms hereof, or its financial responsibility becomes otherwise impaired, or Buyer is otherwise in default of its obligations hereunder, Seller reserves the right, among other remedies, to refuse to supply Product except for receipt of cash with order and/or payment in full of all outstanding charges, and/or assess and collect from Buyer a monthly late charge on any delinquent balance equal to the lesser of eighteen percent (18%) per annum or the maximum charge permitted by law, and/or enter Buyer’s premises and remove any Supply System or other Seller equipment located thereat with or without notice or legal process, and/or suspend Seller’s performance hereunder and/or terminate the supply of Product, equipment or services hereunder. If any action is required to collect Buyer’s delinquent account or otherwise enforce the terms and conditions hereof, including without limitation the recovery of cylinders provided hereunder, Buyer will pay Seller all fees and costs of such collection, recovery or enforcement including reasonable legal fees and expenses.
2.
DELIVERY.
Seller will deliver to Buyer Buyer’s requirements for Product in accordance with the terms hereof. Product in cylinders will be delivered F.O.B. Seller’s facility. At Seller’s request, Buyer will provide to Seller information relating to Buyer’s pattern of use of Product from each Supply System. Seller may anticipate Buyer’s requirements for Product and deliver Product at such times as are consistent with Seller’s delivery schedule. The delivery of Product by Seller will constitute Buyer’s purchase thereof, and the quantities delivered will be measured by Seller by the method it regularly uses for the type of delivery made. Buyer grants to Seller the right of twenty-four (24) hour access to each Supply System site, and if (a) Buyer fails to grant or delays such access, or (b) Seller is unable to deliver Product at any time consistent with Seller’s delivery schedule or otherwise in accordance with the terms hereof due to any act or omission of Buyer, Buyer will pay Seller any applicable delivery option charge set forth in Seller’s delivery option charge schedule. If Seller is requested by Buyer and is able to make deliveries during a strike or other concerted acts of workers affecting Buyer’s Location(s), then such deliveries will be made at Buyer’s sole risk and, notwithstanding anything herein to the contrary, Buyer will indemnify, defend and hold harmless Seller from and against any and all costs (including reasonable legal fees and expenses), damages, liabilities and claims arising out of or incident to any such deliveries. In addition, Seller reserves the right to request, in its sole discretion, that Buyer provide qualified personnel to deliver Product to any Supply System affected by such strike or concerted acts, and Buyer will provide such personnel.
3.
SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES.
For each Supply System, Buyer, at its expense, will provide and maintain a suitable site and suitable access as mutually agreed upon by the parties, construct a suitable foundation as specified by Seller, install fencing adequate to prevent tampering and install isolation barriers all as specified by Seller, obtain any necessary permits and licenses, install and maintain a properly designed system for the distribution of Product from each Supply System to Buyer’s points of use, and furnish utilities as required by Seller, such as electric power, lighting, telephone lines, internet connections, water and/or steam, and the facilities to deliver such utilities to the point(s) on each Supply System site designated by Seller. Each Supply System site furnished by Buyer hereunder will be free from toxic and hazardous materials (including corrosives) or other debris which would prevent or increase the cost of the installation or operation of the Supply System, or which could cause injury or death of Seller’s employees or any other persons on or at the Supply System site, or which could cause damage to any adjoining property. If the atmospheric or other environmental conditions or the operations at Buyer’s Location(s) affect the safe or reliable operation, or result in the imposition of any additional fees, costs or expenses relating to the maintenance, repair or operation of the Supply System, Buyer will promptly correct such conditions and reimburse Seller for any fees, costs and expenses incurred by Seller attributable to such conditions. Notwithstanding anything herein to the contrary, Buyer will indemnify, defend and hold harmless Seller from and against any and all costs, fees (including reasonable legal fees and expenses), damages, liabilities, claims, penalties and fines that result from any toxic or hazardous materials now or hereafter in, on or under the Supply System site and do not occur or result directly from Seller’s performance pursuant hereto. If any Supply System or cylinder is damaged by Buyer, its agents, employees, contractors or invitees, the cost of repairing such Supply System or cylinder will be borne by Buyer. Buyer will prevent persons other than those authorized by Seller from entering any Supply System site, delaying delivery of Product, or altering, repairing, adjusting or otherwise tampering with any Supply System. Buyer will comply with all laws, rules and regulations applicable to Buyer’s Location relating to a safe and secure operation and Seller will have the right, without any liability hereunder, to refuse to deliver Product to Buyer’s Location if Seller reasonably determines that Buyer is not in compliance with any such law, rule or regulation or that Buyer is not providing a workplace at Buyer’s Location that is free from known hazards that will result or are likely to result in death or serious harm. Seller will install each Supply System and make the connection to Buyer’s Product distribution system. The costs associated with installing each Supply System and connecting it to Buyer’s Product distribution system, including, transportation and rigging costs, will be borne by Buyer. Seller will not be responsible for connecting any cylinder to Buyer’s Product distribution system. Seller will, at Buyer’s expense, remove each Supply System within a reasonable time after the fulfillment of Seller’s Product supply obligations pursuant to the purchase order to which these terms and conditions apply. Seller may at its expense remove any Supply System or part thereof, and replace it with another Supply System or part thereof, as Seller may deem appropriate for the supply of Buyer’s requirements of Product. Seller will have the right from time to time to shut down each Supply System for such period of time as may be necessary for repairs and maintenance consistent with proper operation. Each Supply System or cylinder will remain the property of Seller at all times. Buyer will indemnify, defend and hold harmless Seller from and against costs, fees (including reasonable legal fees and expenses), damages, liabilities and claims arising in connection with any liens filed against any Supply System or cylinder due to its location on Buyer’s premises. If Seller relocates, modifies or replaces all or part of any Supply System, due to a change in Buyer’s requirements, method of supply, pressure specifications, Buyer’s Location or Buyer’s facilities Seller may charge Buyer the cost of such relocation, modification or replacement, and adjust the Monthly Service Charge therefor.
Each cylinder furnished by Seller will remain the property of Seller at all times. Buyer will return each such cylinder to Seller in a non-contaminated condition with the cap and any valves and dust plugs tightly closed and with sufficient residual pressure to prevent contamination to the Cylinder. Buyer will pay Seller for cleaning any Cylinder if such cylinder is contaminated when returned to Seller. Buyer will return each Cylinder to Seller within thirty (30) days following the fulfillment of the purchase order or pay Seller the replacement value thereof. Buyer will maintain records adequate to account for each cylinder that is furnished to Buyer. On Seller’s request, Buyer will make such records available to Seller during normal business hours to enable Seller to audit such records and other pertinent data as may be necessary to locate its cylinders and to confirm Buyer’s records. Buyer will cooperate with Seller to protect, locate and recover each cylinder furnished to Buyer hereunder. Buyer’s obligations under this paragraph will survive the termination or expiration of the purchase order to which these terms and conditions apply.
If Buyer provides a Product storage system for the supply of any Product, the provisions of this Article 3 set forth above will not apply to such Product storage system and Buyer, at its expense, will maintain such Product storage system and the site on which such Product storage system is located. Seller will have the right, without any liability hereunder, to refuse to deliver Product into such Product storage system if Seller reasonably determines that such Product storage system or Product storage system site is unfit for the storage or delivery of Product or the site on which such Product storage system is located is not safe as determined by Seller for the delivery of Product. Buyer will indemnify, defend and hold harmless Seller from and against any and all costs, fees (including reasonable legal fees and expenses), damages, liabilities and claims arising out of Buyer’s failure to properly install, maintain or operate such Product storage system or the Product storage system site.
4.
SPECIFICATIONS.
Product delivered hereunder will meet the Specifications set forth herein. Buyer may reject any Product which does not meet such Specifications and no charge will be made for Product so rejected. Since Buyer may obtain devices which have the capability of testing whether Product meets such Specifications, no claim of any kind with respect to the conformance of Product to the foregoing Specifications, whether or not based on negligence, warranty, strict liability or any other theory of law, will be greater than the price of the quantity of nonconforming Product in respect to which such claim is made. The foregoing constitutes Buyer’s exclusive remedy and Seller’s sole obligation with respect to any such claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS ARTICLE 4. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS PROVIDED IN THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5.
CONTINGENCIES.
Neither party hereto will be liable to the other for default or delay in the performance of any of its obligations hereunder (except any obligation to make payments when due) due to act of God, accident, fire, flood, storm, riot, war, act of terrorism, sabotage, explosion, strike, concerted acts of workers, national defense requirements, governmental law, ordinance, rule or regulation, whether valid or invalid, extraordinary failure of equipment or apparatus, inability to obtain electricity or other type of energy, feedstock, raw or finished material from normal sources of supply, labor, equipment or transportation, or any similar or different contingency beyond its reasonable control which would prevent or delay performance or make performance commercially impracticable whether or not the contingency is of the same class as those enumerated above, it being expressly agreed that such enumeration is non-exclusive; provided, however, that neither business downturn nor economic conditions will qualify as a contingency within the meaning of this Article 5. In the event any such contingency affects only a part of Seller’s capability to produce and/or deliver Product, Seller will allocate production and/or deliveries among the requirements of all its affected customers and Seller’s own requirements in a fair and reasonable manner. Buyer will pay or reimburse Seller for any additional costs due to a contingency and related to the supply of Product to Buyer during a contingency.
6.
HEALTH AND SAFETY.
Buyer acknowledges that there are hazards associated with Product, including the storage, use and handling thereof, and Buyer agrees that its employees, agents, contractors and others concerned with Product are aware of such hazards. Buyer assumes all responsibility for the suitability and the results of using Product alone or in combination with other articles or substances and in any manufacturing, medical, or other process or procedures. Buyer will notify Seller of any hazards and safety procedures at Buyer’s Location(s) and Buyer will notify Seller in advance of any anticipated construction, renovation, or change in operations in the area of any Supply System site so that any hazards associated with same can be minimized. Buyer will be responsible for complying with (i) all relevant reporting obligations under all applicable laws, including the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11049 (EPCRA, also commonly known as Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA Title III)), and (ii) process safety management and risk management programs that in either case result from the presence at Buyer’s Location(s) of Product supplied hereunder. Buyer will warn and protect its employees, contractors and others exposed to the hazards posed by Buyer’s storage, use and handling of Product. Seller will provide documents to Buyer containing Seller’s safety and health information pertaining to Product, including Seller’s Safety Data Sheet(s), and Buyer will incorporate such information into Buyer’s safety program. Buyer hereby waives any right of subrogation that Buyer, any insurer of Buyer or any third party making a claim through Buyer may have in connection with the transactions to which these terms and conditions apply.
7.
LIABILITY.
SELLER WILL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, SALES OR OTHER SIMILAR DAMAGES) ARISING IN CONNECTION WITH THE TRANSACTIONS TO WHICH THESE TERMS AND CONDITIONS APPLY WITHOUT REGARD TO THE NATURE OF THE CLAIM OR THE UNDERLYING THEORY OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY OR ANY OTHER THEORY OF LAW) ON WHICH SUCH DAMAGES ARE BASED.
EACH PARTY WILL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY FROM AND AGAINST ANY AND ALL COSTS, FEES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES), DAMAGES, LIABILITIES AND CLAIMS ARISING FROM THE INJURY, ILLNESS OR DEATH OF THE INDEMNIFYING PARTY’S EMPLOYEES IN ANY WAY RELATED TO ANY ACTIVITIES PERFORMED IN CONNECTION WITH OR PRODUCT SUPPLIED BY SELLER HEREUNDER, WHETHER OR NOT SUCH INJURY, ILLNESS, OR DEATH IS CLAIMED TO HAVE BEEN CAUSED BY, RESULTED FROM, OR WAS IN ANY WAY CONNECTED WITH THE NEGLIGENCE OF THE PARTY TO BE INDEMNIFIED.
8.
GENERAL.
The entire agreement with respect to the subject matter hereof is contained herein. There are no other promises, representations or warranties affecting this agreement, and any additional or different terms or conditions in any purchase orders or other documents issued or accepted in connection herewith will be deemed null and void. No modification or waiver of any term or condition hereof will bind either party unless expressly set forth in writing and signed and accepted by an authorized representative of the party sought to be bound by such writing. The parties obligations hereunder and any claim, controversy or dispute arising out of or related hereto will be governed by the laws of the State of Connecticut, without reference to its conflict of laws provisions which would render applicable the laws of any other jurisdiction. BUYER AND SELLER HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING HERETO.
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