Appendices
Appendix
IX
Parker Hannifin Corporation
Quick Coupling Division
Minneapolis, MN
www.parker.com/quickcouplings
Offer of Sale
1.
Terms and Conditions.
Seller’s willingness to offer Products, or accept an order for Products,
to or from Buyer is subject to these Terms and Conditions or any newer version of the terms
and conditions found on-line at
www.parker.com/saleterms
/. Seller objects to any contrary or
additional terms or conditions of Buyer’s order or any other document issued by Buyer.
2.
Price Adjustments; Payments.
Prices stated on Seller’s quote or other documentation offered
by Seller are valid for 30 days, and do not include any sales, use, or other taxes unless specifically
stated. Unless otherwise specified by Seller, all prices are F.C.A. Seller’s facility (INCOTERMS
2010).
Payment is subject to credit approval and is due 30 days from the date of invoice or such
other term as required by Seller’s Credit Department, after which 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 placement
of the products with the shipment carrier at Seller’s facility. 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 acts or omissions.
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. 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 DESIGN, 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 30 days after delivery.
Buyer shall notify Seller of any alleged breach of warranty within 30 days after the date 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 an amount due on
any invoice) must be commenced within 12 months from the date of the breach without regard to
the date breach is discovered.
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.
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.
8.
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,
will be considered obsolete and may be destroyed by Seller after two consecutive years have
elapsed without Buyer ordering the items 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.
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.
10.
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.
11.
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.
12.
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 or without notice to Buyer.
13.
Limitation on Assignment.
Buyer may not assign its rights or obligations under this agreement
without the prior written consent of Seller.
14.
Force Majeure
.
Seller does not assume the risk 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, strikes or labor disputes, acts of any government or government agency,
acts of nature, delays or failures in delivery from carriers or suppliers, shortages of materials, or
any other cause beyond Seller’s reasonable control.
15.
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.
16.
Termination.
Seller may terminate this agreement for any reason and at any time by
giving Buyer thirty (30) days written notice of termination. Seller may immediately terminate
this agreement, in writing, if Buyer: (a) commits a breach of any provision of this agreement (b)
appointments a trustee, receiver or custodian for all or any part of Buyer’s property (c) files a
petition for relief in bankruptcy on its own behalf, or by a third party (d) makes an assignment for
the benefit of creditors, or (e) dissolves or liquidates all or a majority of its assets.
17.
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.
18.
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.
19.
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 sale. All prior
or contemporaneous written or oral agreements or negotiations with respect to the subject
matter are herein merged.
20.
Compliance with Law,
U. K. Bribery Act and U.S. Foreign Corrupt Practices Act. Buyer agrees
to comply with all applicable laws and regulations, including both those of the United Kingdom
and the United States of America, and of the country or countries of the Territory in which Buyer
may operate, including without limitation the U. K. Bribery Act, the U.S. Foreign Corrupt Practices
Act (“FCPA”) and the U.S. Anti-Kickback Act (the “Anti-Kickback Act”), and agrees to indemnify
and hold harmless Seller from the consequences of any violation of such provisions by Buyer, its
employees or agents. Buyer acknowledges that they are familiar with the provisions of the U.
K. Bribery Act, the FCPA and the Anti-Kickback Act, and certifies that Buyer will adhere to the
requirements thereof. In particular, Buyer represents and agrees that Buyer shall not make any
payment or give anything of value, directly or indirectly to any governmental official, any foreign
political party or official thereof, any candidate for foreign political office, or any commercial entity
or person, for the purpose of influencing such person to purchase products or otherwise benefit
the business of Seller.