Page 39 - ParkerPVCHose

1. Terms and Conditions of Sale: All descriptions, quotations, proposals,
offers, acknowledgments, acceptances and sales of Seller’s products are
subject to and shall be governed exclusively by the terms and conditions
stated herein. Buyer’s acceptance of any offer to sell is limited to these
terms and conditions. Any terms or conditions in addition to, or
inconsistent with those stated herein, proposed by Buyer in any
acceptance of an offer by Seller, are hereby objected to. No such
additional, different or inconsistent terms and conditions shall become
part of the contract between Buyer and Seller unless expressly accepted
in writing by Seller. Seller’s acceptance of any offer to purchase by Buyer
is expressly conditional upon Buyer’s assent to all the terms and
conditions stated herein, including any terms in addition to, or inconsistent
with those contained in Buyer’s offer. Acceptance of Seller’s products shall
in all events constitute such assent.
2. Payment: Payment shall be made by Buyer net 30 days from the date of
delivery of the items purchased hereunder. Parker reserves the right to
charge interest on all past due amounts. Any claims by Buyer for
omissions or shortages in a shipment shall be waived unless Seller
receives notice thereof within 30 days after Buyer’s receipt of the
shipment.
3. Delivery: Unless otherwise provided on the face hereof, delivery shall be
made F.O.B. Seller’s plant. Regardless of the method of delivery, however,
risk of loss shall pass to Buyer upon Seller’s delivery to a carrier. Any
delivery dates shown are approximate only and Seller shall have no
liability for any delays in delivery.
4. Warranty: Seller warrants that the items sold hereunder shall be free from
defects in material or workmanship for a period of 365 days from the date
of shipment to Buyer, or 2,000 hours of use, whichever expires first. THIS
WARRANTY COMPRISES THE SOLE AND ENTIREWARRANTY
PERTAININGTO ITEMS PROVIDED HEREUNDER. SELLER MAKES
NO OTHERWARRANTY, GUARANTEE, OR REPRESENTATIONS OF
ANY KINDWHATSOEVER. ALL OTHERWARRANTIES, INCLUDING
BUT NOT LIMITEDTO, MERCHANTABILITY AND FITNESS FOR
PURPOSE, WHETHER EXPRESS, IMPLIED, OR ARISING BY
OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEALING
ARE HEREBY DISCLAIMED.
NOTWITHSTANDINGTHE FOREGOING,THERE ARE NO
WARRANTIESWHATSOEVER ON ITEMS BUILT OR ACQUIRED
WHOLLY OR PARTIALLY, TO BUYER’S DESIGNS OR
SPECIFICATIONS.
5. Limitation Of Remedy: SELLER’S LIABILITY ARISING FROM OR IN
ANYWAY CONNECTEDWITHTHE ITEMS SOLD ORTHIS CONTRACT
SHALL BE LIMITED EXCLUSIVELYTO REPAIR OR REPLACEMENT
OF THE ITEMS SOLD, OR REFUND OF THE PURCHASE PRICE PAID
BY BUYER, AT SELLER’S SOLE OPTION. IN NO EVENT SHALL
SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR
SPECIAL DAMAGES OF ANY KIND OR NATUREWHATSOEVER,
INCLUDING BUT NOT LIMITEDTO LOST PROFITS ARISING FROM
OR IN ANYWAY CONNECTEDWITHTHIS AGREEMENT OR ITEMS
SOLD HEREUNDER,WHETHER ALLEGED TO ARISE FROM BREACH
OF CONTRACT, EXPRESS OR IMPLIEDWARRANTY, OR INTORT,
INCLUDINGWITHOUT LIMITATION, NEGLIGENCE, FAILURETO
WARN OR STRICT LIABILITY.
6. Changes, Reschedules and Cancellations: Buyer may request to
modify the designs or specifications for the item sold hereunder as well as
the quantities and delivery dates thereof, or may request to cancel all or
part of this order, however, no such requested modification or cancellation
shall become part of the contract between Buyer and Seller unless
accepted by Seller in a written amendment to this Agreement.
Acceptance of any such requested modification of cancellation shall be at
Seller’s discretion, and shall be upon such terms and conditions as Seller
may require.
7. Special Tooling: A tooling charge may be imposed for any special tooling,
including without limitation, dies, fixtures, molds and patterns, acquired to
manufacture items sold pursuant to this contract. Such special tooling
shall be and remain Seller’s property notwithstanding payment of any
charges by Buyer. In no event will Buyer acquire any interest in apparatus
belonging to Seller which is utilized in the manufacture of the items sold
hereunder, even if such apparatus has been specially converted or
adapted for such manufacture and notwithstanding any charges paid by
Buyer. Unless otherwise agreed, Seller shall have the right to alter,
discard or otherwise dispose of any special tooling or other property in its
sole discretion at any time.
8. Buyer’s Property: Any designs, tools, patterns, materials, drawings,
confidential information or equipment furnished by Buyer, or any other
items which become Buyer’s property, may be considered obsolete and
may be destroyed by Seller after two (2) consecutive years have elapsed
without Buyer placing an order for the items which are manufactured using
such property. Seller shall not be responsible for any loss or damage to
such property while it is in Seller’s possession or control.
9. Taxes: Unless otherwise indicated on the face hereof, all prices and
charges are exclusive of excise, sales, use, property, occupational or like
taxes which may be imposed by any taxing authority upon the
manufacture, sale or delivery of the items sold hereunder. If any such
taxes must be paid by Seller, or if Seller is liable for the collection of such
tax, the amount thereof shall be in addition to the amounts for the items
sold. Buyer agrees to pay all such taxes or to reimburse Seller therefor
upon receipt of its invoice. If Buyer claims exemption from any sales, use
or other tax imposed by any taxing authority, Buyer shall save Seller
harmless from and against any such tax, together with any interest or
penalties thereon which may be assessed if the items are held to be
taxable.
10. Indemnity For Infringement of Intellectual Property Rights: Seller
shall have no liability for infringement of any patents, trademarks,
copyrights, trade dress, trade secrets or similar rights except as provided
in this Part 10. Seller will defend and indemnify Buyer against allegations
of infringement of U.S. patents, U.S. trademarks, copyrights, trade dress
and trade secrets (hereinafter ‘Intellectual Property Rights’). Seller will
defend at its expense and will pay the cost of any settlement or damages
awarded in an action brought against Buyer based on an allegation that
an item sold pursuant to this contract infringes in the Intellectual Property
Rights of a third party. Seller’s obligation to defend and indemnify Buyer is
contingent on Buyer notifying Seller within ten (10) days after Buyer
becomes aware of such allegations of infringement, and Seller having
sole control over the defense of any allegations or actions, including all
negotiations for settlement or compromise. If an item sold hereunder is
subject to a claim that it infringes the Intellectual Property Rights of a third
party, Seller may, at its sole expense and option, procure for Buyer the
right to continue using said item, replace or modify said item so as to
make it noninfringing, or offer to accept return of said item and return the
purchase price less a reasonable allowance for depreciation.
Notwithstanding the foregoing, Seller shall have no liability for claims of
infringement based on information provided by Buyer, or directed to items
delivered hereunder for which the designs are specified in whole or part
by Buyer, or infringements resulting from the modification, combination or
use in a system of any item sold hereunder. The foregoing provisions of
this Part 10 shall constitute Seller’s sole and exclusive liability and Buyer’s
sole and exclusive remedy for infringement of Intellectual Property Rights.
If a claim is based on information provided by Buyer or if the design for an
item delivered hereunder is specified in whole or in part by Buyer, Buyer
shall defend and indemnify Seller for all costs, expenses or judgements
resulting from any claim that such item infringes any patent, trademark,
copyright, trade dress, trade secret or any similar right.
11. Force Majeure: Seller does not assume the risk of and shall not be liable
for delay or failure to perform any of Seller’s obligations by reason of
circumstances beyond the reasonable control of Seller (hereinafter
‘Events of Force Majeure’). Events of Force Majeure shall include without
limitation, accidents, acts of God, strikes or labor disputes, acts, laws,
rules or regulations of any government or government agency, fires,
floods, delays or failures in delivery of carriers or suppliers, shortages of
materials and any other cause beyond Seller’s control.
12. Entire Agreement/Governing Law: The terms and conditions set forth
herein, together with any amendments, modifications and any different
terms or conditions expressly accepted by Seller in writing, shall
constitute the entire Agreement concerning the items sold, and there are
no oral or other representations or agreements which pertain thereto. This
Agreement shall be governed in all respects by the law of the State of
Ohio. No actions arising out of the sale of the items sold hereunder or this
Agreement may be brought by either party more than two (2) years after
the cause of action accrues.
Offer of Sale