Parker Hannifin Corporation
Fluid System Connectors
Otsego, Michigan
30
Offer of Sale
1/09
The items described in this document and other documents and descriptions provided by Parker Hannifin Corporation, its
subsidiaries and its authorized distributors (“Seller”) are hereby offered for sale at prices to be established by Seller. This offer
and its acceptance by any customer (“Buyer”) shall be governed by all of the following Terms and Conditions. Buyer’s order for
any item described in its document, when communicated to Seller verbally, or in writing, shall constitute acceptance of this offer.
All goods or work described will be referred to as “Products”.
1.
Terms and Conditions.
Seller’s willingness to offer Products, or accept an order
for Products, to or from Buyer is expressly conditioned on Buyer’s assent to these
Terms and Conditions and to the terms and conditions found on-line at
www.parker
.
com/saleterms/. Seller objects to any contrary or additional term or condition of Buyer’s
order or any other document issued by Buyer.
2.
Price Adjustments; Payments.
Prices stated on the reverse side or preceding
pages of this document are valid for 30 days. After 30 days, Seller may change prices
to reflect any increase in its costs resulting from state, federal or local legislation, price
increases from its suppliers, or any change in the rate, charge, or classification of any
carrier. The prices stated on the reverse or preceding pages of this document do not
include any sales, use, or other taxes unless so stated specifically. Unless otherwise
specified by Seller, all prices are F.O.B. Seller’s facility, and payment is due 30 days
from the date of invoice. After 30 days, Buyer shall pay interest on any unpaid invoices
at the rate of 1.5% per month or the maximum allowable rate under applicable law.
3.
Delivery Dates; Title and Risk; Shipment.
All delivery dates are approximate and
Seller shall not be responsible for any damages resulting from any delay. Regardless of
the manner of shipment, title to any products and risk of loss or damage shall pass to
Buyer upon tender to the carrier at Seller’s facility (i.e., when it’s on the truck, it’s yours).
Unless otherwise stated, Seller may exercise its judgment in choosing the carrier and
means of delivery. No deferment of shipment at Buyers’ request beyond the respective
dates indicated will be made except on terms that will indemnify, defend and hold
Seller harmless against all loss and additional expense. Buyer shall be responsible for
any additional shipping charges incurred by Seller due to Buyer’s changes in shipping,
product specifications or in accordance with Section 13, herein.
4.
Warranty.
Seller warrants that the Products sold hereunder shall be free from
defects in material or workmanship for a period of twelve months from the date of
delivery to Buyer or 2,000 hours of normal use, whichever occurs first. This warranty
is made only to Buyer and does not extend to anyone to whom Products are sold after
purchased from Seller. The prices charged for Seller’s products are based upon the
exclusive limited warranty stated above, and upon the following disclaimer:
DISCLAIMER OF WARRANTY: THIS WARRANTY COMPRISES THE SOLE AND
ENTIRE WARRANTY PERTAINING TO PRODUCTS PROVIDED HEREUNDER.
SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.
Claims; Commencement of Actions.
Buyer shall promptly inspect all Products
upon delivery. No claims for shortages will be allowed unless reported to the Seller
within 10 days of delivery. No other claims against Seller will be allowed unless
asserted in writing within 60 days after delivery or, in the case of an alleged breach of
warranty, within 30 days after the date within the warranty period on which the defect
is or should have been discovered by Buyer. Any action based upon breach of this
agreement or upon any other claim arising out of this sale (other than an action by
Seller for any amount due to Seller from Buyer) must be commenced within thirteen
months from the date of tender of delivery by Seller or, for a cause of action based
upon an alleged breach of warranty, within thirteen months from the date within the
warranty period on which the defect is or should have been discovered by Buyer.
6.
LIMITATION OF LIABILITY.
UPON NOTIFICATION, SELLER WILL, AT ITS
OPTION, REPAIR OR REPLACE A DEFECTIVE PRODUCT, OR REFUND THE
PURCHASE PRICE.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON-
DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY
PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE
INCURRED WITHOUT SELLER’S WRITTEN CONSENT, EVEN IF SELLER
HAS BEEN NEGLIGENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL
THEORY. IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM MADE
BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
7.
Contingencies.
Seller shall not be liable for any default or delay in performance
if caused by circumstances beyond the reasonable control of Seller.
8.
User Responsibility.
The user, through its own analysis and testing, is solely
responsible for making the final selection of the system and Product and assuring
that all performance, endurance, maintenance, safety and warning requirements of
the application are met. The user must analyze all aspects of the application and follow
applicable industry standards and Product information. If Seller provides Product or
system options, the user is responsible for determining that such data and specifications
are suitable and sufficient for all applications and reasonably foreseeable uses of the
Products or systems.
9.
Loss to 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 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.
10.
Special Tooling.
A tooling charge may be imposed for any special tooling,
including without limitation, dies, fixtures, molds and patterns, acquired to manufacture
Products. 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 Products, 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.
11.
Buyer’s Obligation; Rights of Seller.
To secure payment of all sums due or
otherwise, Seller shall retain a security interest in the goods delivered and this
agreement shall be deemed a Security Agreement under the Uniform Commercial
Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all
documents Seller deems necessary to perfect its security interest. Seller shall have
a security interest in, and lien upon, any property of Buyer in Seller’s possession as
security for the payment of any amounts owed to Seller by Buyer.
12.
Improper use and Indemnity.
Buyer shall indemnify, defend, and hold Seller
harmless from any claim, liability, damages, lawsuits, and costs (including attorney
fees), whether for personal injury, property damage, patent, trademark or copyright
infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees,
or any other person, arising out of: (a) improper selection, improper application or other
misuse of Products purchased by Buyer from Seller; (b) any act or omission, negligent
or otherwise, of Buyer; (c) Seller’s use of patterns, plans, drawings, or specifications
furnished by Buyer to manufacture Product; or (d) Buyer’s failure to comply with these
terms and conditions. Seller shall not indemnify Buyer under any circumstance except
as otherwise provided.
13.
Cancellations and Changes.
Orders shall not be subject to cancellation or
change by Buyer for any reason, except with Seller’s written consent and upon terms
that will indemnify, defend and hold Seller harmless against all direct, incidental and
consequential loss or damage. Seller may change product features, specifications,
designs and availability with notice to Buyer.
14.
Limitation on Assignment.
Buyer may not assign its rights or obligations under
this agreement without the prior written consent of Seller.
15.
Entire Agreement.
This agreement contains the entire agreement between the
Buyer and Seller and constitutes the final, complete and exclusive expression of the
terms of the agreement. All prior or contemporaneous written or oral agreements or
negotiations with respect to the subject matter are herein merged.
16.
Waiver and Severability.
Failure to enforce any provision of this agreement will
not waive that provision nor will any such failure prejudice Seller’s right to enforce that
provision in the future. Invalidation of any provision of this agreement by legislation
or other rule of law shall not invalidate any other provision herein. The remaining
provisions of this agreement will remain in full force and effect.
17.
Termination.
This agreement may be terminated by Seller for any reason and
at any time by giving Buyer thirty (30) days written notice of termination. In addition,
Seller may by written notice immediately terminate this agreement for the following:
(
a) Buyer commits a breach of any provision of this agreement (b) the appointment of
a trustee, receiver or custodian for all or any part of Buyer’s property (c) the filing of a
petition for relief in bankruptcy of the other Party on its own behalf, or by a third party
(
d) an assignment for the benefit of creditors, or (e) the dissolution or liquidation of
the Buyer.
18.
Governing Law.
This agreement and the sale and delivery of all Products
hereunder shall be deemed to have taken place in and shall be governed and
construed in accordance with the laws of the State of Ohio, as applicable to contracts
executed and wholly performed therein and without regard to conflicts of laws
principles. Buyer irrevocably agrees and consents to the exclusive jurisdiction and
venue of the courts of Cuyahoga County, Ohio with respect to any dispute, controversy
or claim arising out of or relating to this agreement. Disputes between the parties shall
not be settled by arbitration unless, after a dispute has arisen, both parties expressly
agree in writing to arbitrate the dispute.
19.
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 Section. Seller will defend and
indemnify Buyer against allegations of infringement of U.S. patents, U.S. trademarks,
copyrights, trade dress and trade secrets (“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 a Product sold pursuant
to this Agreement infringes 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 a Product 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 the Product, replace or modify
the Product so as to make it noninfringing, or offer to accept return of the Product 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 Products 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 Product sold hereunder. The foregoing provisions
of this Section shall constitute Seller’s sole and exclusive liability and Buyer’s sole and
exclusive remedy for infringement of Intellectual Property Rights.
20.
Taxes.
Unless otherwise indicated, 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 Products.
21.
Equal Opportunity Clause.
For the performance of government contracts and
where dollar value of the Products exceed $10,000, the equal employment opportunity
clauses in Executive Order 11246, VEVRAA, and 41 C.F.R. §§ 60-1.4(a), 60-741.5(a),
and 60-250.4, are hereby incorporated.