Terms of Sale
Airgas, Inc., on behalf of its subsidiaries and affiliates
Terms of Sale
Terms of Sale refers to the terms and conditions contained herein. "Seller" refers to Airgas, Inc., on behalf of its subsidiary and affiliate companies. "Buyer" refers to the purchaser of Goods or services from an Airgas company. Each sale of Goods or services by an Airgas company shall be governed by the Terms of Sale. Each contract for the sale of Goods or services between Seller and Buyer ("Contract") shall include these Terms of Sale, together with any other terms describing the Goods or services being sold, their price, delivery terms, and all other special provisions. "Goods" refers to any items of tangible personal property described in any Contract or otherwise provided by Seller to Buyer.
Delivery. Seller may deliver the Goods or ship the Goods by a carrier of Seller's selection, F.O.B. shipping point to the Buyer's address in the Contract, unless the Contract provides otherwise. Unless otherwise specifically provided in a Contract, Seller shall have no obligation to arrange for any valuation of the Goods over and above the valuation provided in the carrier's tariffs or other rate schedules at the lowest rates of carriage.
Delivery Date(s). Delivery date(s) are determined from the date of each Contract and are estimates of approximate dates of delivery, not a guarantee of a particular day of delivery.
Buyer’s Delay of Acceptance. If Buyer delays acceptance of the Goods when delivered or ready for shipment, Buyer shall forthwith pay to Seller the full price of the Goods and shall also pay Seller such warehousing and pier charges and other expenses as Seller may incur as a result of Buyer's delay.
Claims for Shortages, Non-conformity, and Damage in Transit; Returns. Seller shall have no obligation with respect to any shortages, failure of Goods to conform to a Contract, or damage in transit, unless Buyer gives Seller written notice of the same within 10 days after such Goods arrive at the point of delivery and Seller is given a reasonable opportunity to investigate.
Returns. No Goods shall be returned to Seller without Seller's written authorization. Buyer shall pay a 15% restocking charge on all Goods returned to Seller, except for returns provided for under Section 10 hereof.
Terms of Payment. Unless otherwise specified in a Contract, Buyer shall make payment in full within 30 days after the date of Seller’s invoice. A late payment charge of 1.5% on the unpaid, past due balance, will be assessed monthly (minimum two dollars ($2.00) or the maximum lawful rate allowable in the state where the Goods are delivered, whichever is less. If a contract provides for payment other than cash immediately or cash on delivery (COD), Buyer represents that the goods are being purchased for business, commercial or agricultural purposes and not for personal, household, or family use. Buyer represents and warrants that Buyer is and shall remain solvent until Seller receives payment in full for the goods. Buyer shall be in default hereunder and Seller may cancel any Contract without liability to Buyer upon Buyer’s failure to make payment as required herein or upon Buyer’s failure to comply with any of the terms and conditions contained herein or upon the institution of any voluntary or involuntary bankruptcy, insolvency, receivership or debtor relief processing by or against Buyer or upon Buyer’s making of an assignment for the benefit of creditors. If Seller employs any collection agency or attorney to collect any amount due Seller, and/or to repossess any goods, Buyer shall pay all collection fees, attorneys' fees, and court costs, in addition to the amount otherwise unpaid. Seller may bring suit for the collection of any such amount in any jurisdiction or venue Seller may select.
Taxes. Any taxes imposed by federal, state, or other governmental authority on the sale, use or possession of Goods or the sale or performance of services by an Airgas company shall be paid by Buyer in addition to the purchase price.
Security for Goods. Until Buyer pays Seller in full for any Goods purchased, title to the Goods shall remain in Seller's name and Seller shall have a purchase money security interest in the Goods. 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 Goods, whether Buyer's default shall have occurred before or after delivery. If Seller repossesses the Goods, Seller may resell the Goods after 10 days' prior written notice to Buyer. Seller may file one or more financing statements to perfect such security interests. If necessary, Buyer shall execute such financing statements upon the request of Seller. Buyer shall not cover, modify or remove any identification or other indicia of Seller’s ownership on any rental equipment.
Warranty. All products, other items of sale, cylinders and other containers furnished by an Airgas company shall conform to the description thereof published by the manufacturer at the time of sale and will meet Seller’s purity specifications for all gas products. 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. SELLER SHALL BE LIABLE ONLY FOR THE REPAIR OR REPLACEMENT OF DEFECTIVE GAS CYLINDERS AND PRODUCTS, INCLUDING THE REPLACEMENT OF GASES THAT DO NOT MEET ITS PURITY SPECIFICATIONS WITH GASES THAT DO MEET SUCH SPECIFICATIONS. BUYER KNOWINGLY AND FULLY ASSUMES THE RISKS OF TRANSPORTING AND USING COMPRESSED GASES. SELLER SHALL NOT BE LIABLE FOR ANY DIRECT (EXCEPT AS EXPRESSLY PROVIDED HEREIN), INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, ARISING OR ALLEGED TO ARISE OUT OF OR IN CONNECTION WITH ITS PERFORMANCE OF ANY OBLIGATIONS OR ANY PRODUCT, OTHER ITEMS OF SALE, OR EQUIPMENT SOLD OR LEASEDBY SELLER , WHETHER SUCH DAMAGE RESULTS FROM ANY NEGLIGENT ACT OR OMISSION OR IS RELATED TO STRICT LIABILITY, OR OTHERWISE.
Period of Limitation of Action. No action shall be brought by Buyer for any breach of Contract or otherwise in connection with any Goods or services provided or to be provided by Seller more than one year after the cause of action therefore accrues.
Force Majeure. Service and deliveries by Seller are subject to and contingent upon floods, strike or other labor disturbances, fire, accidents, war, delays of carriers, inability to obtain raw materials, failures of normal sources of supply, restraints of government, (whether or not it later proves to be invalid), or any other similar or dissimilar cause beyond Seller’s reasonable control. Seller shall advise Buyer in writing of the reason for and anticipated length of any such delay. If any such cause affects only a part of Seller’s capacity to perform, Seller will allocate production and deliveries among its customers in a fair and reasonable manner.
Amendments; Entire Agreement; No Variations Permitted. The Terms of Sale and any Contract executed by Buyer and Seller represent the entire agreement of Buyer and Seller with respect to the sale or rental of Goods and services and supersede all prior agreements, promises, conditions, arrangements, communications, representations and warranties, including, but not limited to, any purchase order, acceptance or other document of Buyer, even if the same is signed or acted upon by Seller. The Terms of Sale and any Contract may be agreed to, 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 of sale not set forth herein or in a Contract.