Terms and Conditions – Core Industrial Gases
- PRIORITY: These Terms form part of the contract of sale, supply, or service referenced in the invoice to which they are attached. These Terms are in addition to any other written contract between us with respect to the goods or services herein referred to (“Written Contract”). In the event of any conflict between these Terms and a Written Contract, the terms of the Written Contract will prevail. In the event of any conflict between your form of purchase order and this invoice and Terms, the provisions of this invoice and Terms will prevail.
- DELIVERY: Any product, equipment, material, industrial, medical and special gases (the “Goods”) including the containers used for the transportation, storage, or sale of the gases (the “Cylinders”) Seller shall be delivered by Seller FOB Seller’s delivery facilities. At Buyer’s request and expense, the Goods shall be shipped by Seller or its agent to Buyer’s designated point of shipment. Unless otherwise specified, titles and all risks of loss or damage shall pass to Buyer at Seller’s delivery facilities at the time of delivery either to the Buyer or the shipping or transportation company (“Delivery”).
- INSPECTION: Buyer shall inspect the Goods upon Delivery. Should Buyer find that the Goods do not conform to the description herein, Buyer shall give written notice to that effect to Seller within fifteen (15) days from Delivery. Failure of Buyer to give Seller such notice shall constitute an irrevocable acceptance of the Goods, and Buyer shall be bound to pay the full price thereof. If after irrevocable acceptance of the Goods, Buyer, with Seller’s written consent, returns the Goods to Seller, the Seller’s standing handling charge will be levied on all such Goods returned for credit.
- TITLE, CARE AND USAGE: Unless otherwise agreed in a Written Agreement, all Goods, including Cylinders and any part or accessory thereof, are and shall remain at all times the sole and exclusive property of Seller. Buyer shall not pledge, encumber, lend, dispose, of, lose control of, alter, label, or de-label Goods. Goods shall only be used for the purpose they were intended and in a safe manner. Unless otherwise specified in a Written Agreement, Buyer shall return Cylinders, transportation prepaid, to Seller’s point of shipment. BUYER AGREES AT ITS EXPENSE TO INSURE ALL CYLINDERS AND ANY PART OR ACCESSORY BORROWER OR RENTED FROM THE SELLER. Until the Cylinders are returned by Buyer to Seller, all risks of loss or damage to the Cylinders or to any part or accessory thereof, or any damage caused to any person thereby or by the use or contents of the Cylinder is hereby assumed by Buyer and the Buyer fully indemnifies the Seller, therefore. For Cylinders (including any part or accessory thereof) lost or damaged beyond repair, Buyer shall pay to Seller, on demand, the full replacement value of the Cylinders and/or said part or accessory, at Seller’s then current valuation: for damages that Seller is able to have repaired, Buyer shall pay the actual cost of all repairs thereof. Buyer shall not himself nor shall Buyer allow any other person to alter, repair or tamper with Cylinders or any part or accessory thereof. Buyer shall not have Cylinders recharged with any product, gas, liquid or other materials whatsoever by any person, firm or corporation other than Seller. Seller shall not entertain any claims for loss of content based on defective valves or other Cylinder imperfections unless same made within fifteen (15) days of Delivery. Unless otherwise specified in Written Agreement, Buyer shall pay a rental charge at the Seller’s then current standard rate per Cylinder for each Cylinder held on a monthly basis plus HST as applicable until the Cylinder is returned to the Seller in good working condition as specified in this paragraph.
- LIMITATION OF INTENDED USERS: Goods ARE INTENDED FOR ULTIMATE PURCHASE AND USE BY COMMERCIAL/INDUSTRIAL USERS AND FOR OPERATION BY PERSONS TRAINED AND EXPERIENCED IN THE USE AND MAINTENANCE OF WELDING EQUIPMENT AND INDUSTRIAL, MEDICAL AND SPECIALTY GASES. The Goods are NOT intended for consumers or consumer use. Seller’s obligations and liabilities do not extend to, and no reseller is authorized to extend Seller’s warranties, liabilities, or obligations, to any consumer.
- WARRANTIES AND LIABILITIES:
ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ALL GUARANTIES AND ALL REPRESENTATIONS AS TO PERFORMANCE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE GOODS ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY SELLER. No agent, employee, or representative of Seller has any authority to bind Seller to any representation or warranty relating to the Goods other than as specifically provided herein.
SELLER SHALL HAVE NO LIABILITY FOR LOSS OF INCOME, LOSS OF PROFIT, LOSS OF GOODWILL, OR ECONOMIC LOSSES OR INDIRECT LOSSES OR DAMAGES OF ANY KIND WHATSOVER AND THE SELLER’S LIABILITY HEREUNDER SHALL BE LIMITED TO OUT OF POCKET EXPENSES OR DAMAGES LIMITED IN THE MAXIMUM TO THE PURCHASE PRICE PAYABLE BY THE BUYER HERERUNDER.
Seller’s sole liability and Buyer’s sole remedy for the non-delivery of Goods or for the delivery of Goods not conforming to the applicable specifications shall be limited (at Seller’s sole discretion) to replacing the Goods or to granting a credit or refund in the amount of the contracted price of such Goods.
SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO GOODS MANUFACTURED BY OTHERS BUT AGREES TO ASSIGN THE MANUFACTURER’S WARRANTY TO BUYER.
Seller shall not be responsible for any direct or indirect damages sustained by Buyer, its employees or others in connection with the handling, presence, storage, use, quality or condition of Goods and/or the Cylinders or in connection with its breach of any of the conditions hereunder unless such damage is shown to have been caused by the negligent acts or omissions of Seller. In no event, however, shall Seller be responsible for indirect or consequential damages howsoever occurring.
- PAYMENT AND INTEREST: Buyer will make all payments on time as provided in the attached invoice. Seller may demand more onerous terms of payment different from those set forth on the face hereof whenever Buyer’s financial position requires such change. Seller shall have the right to charge, on any amount unpaid, interest at 18% per year on the last business day of each month. Buyer agrees to pay all taxes and duties (if any) upon sale and purchase of the Goods hereunder and/or upon the use of the Cylinders, and interest as herein provided for.
- MODIFICATIONS: These Terms cannot be waived or modified except on written confirmation from an authorized person of both Seller and Buyer.
- WAIVER: Failure by Seller to require performance by Buyer of any provision hereof shall in no way affect the full right of Seller to require performance at any time thereafter nor shall the waiver by Seller of a breach of any provision hereof be taken as a waiver of the provision itself.