GASCO, a division of Airgas USA, LLC, with offices at 320 Scarlet Blvd. Oldsmar, FL 34677 (“Seller”), and [Customer], with offices at [customer address] (“Buyer”), for and in consideration of the mutual promises and covenants set forth herein and intending to be legally bound thereby, agree as follows:
1.0 Definitions & Interpretation.
Where used in these Terms and Conditions of Contract:
“Conditions” means these Terms and Conditions of Contract or any such successor standard terms and conditions that the Purchaser is notified are in full force and effect as of the date of a Contract. “Contract” means an agreement for the purchase and sale of Products by Gasco to the Purchaser following Gasco issuing a Purchase Order Acknowledgement in accordance with the Conditions.Insolvency Event: means, in the case of a corporate entity, proceedings are threatened or commenced in relation to the winding up of that corporate entity, or in the case of an individual or partnership, proceedings are threatened or commenced in relation to the bankruptcy of that individual or partnership, or in the case of any party, that person or corporate entity suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts. “Price” means the price payable for the Products as set out in the Purchase Order Acknowledgement. “Product(s)” means the products (or any part of them) set out in the Purchase Order Acknowledgement. “Purchase Order” means an order placed by the Purchaser to purchase Products from Gasco pursuant to these Conditions. “Purchase Order Acknowledgement” means the written acceptance of the Purchase Order by Gasco that creates the Contract pursuant to these Conditions. “Purchaser” means any individual person, entity, company, firm or organization that purchases Products from GASCO for use in its business or the business of a third party.“Gasco Material Data Safety Sheets” means the material data safety sheet supplied by Gasco to the Purchase with the Products. “Gasco Quotation” means the written quotation provided by Gasco to the Purchaser, setting out the Prices and the specification of the Products.
2.0 Basis of Contract
2.1 A binding Contract shall only be created between the parties, when Gasco issues the Purchaser with a Purchase Order Acknowledgement.2.2 The Purchase Order Acknowledgement shall be read in conjunction with these Conditions, the two documents forming a definitive Contract. 2.3 Any variation to these Conditions must be detailed in writing on the Purchase Order Acknowledgement, for the variation to form part of the Contract. The Contract is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Contract and supersedes all previous communications, representations and arrangements, written or oral. The Purchaser acknowledges that no reliance is placed on any representation made but not embodied in the Contract. 2.4 Notwithstanding the foregoing, the provision of the Gasco Quotation, or any other information shall not be considered an offer by Gasco to sell the Products at those prices, or subject to any other terms and conditions. Only a Purchase Order submitted by the Purchaser shall constitute an offer to contract subject to these Conditions.2.5 These conditions shall be incorporated into the Contract to the exclusion of any terms or conditions stipulated or referred to by the Purchaser, or which might otherwise be implied by trade, custom, practice or course of dealing.
3.0 Prices
3.1 All amounts of money referred to in the Contract shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Purchaser is required under any applicable law to withhold or deduct any amount from the payments due to Gasco, the Purchaser shall increase the sum it pays to Gasco by the amount necessary to leave Gasco with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
3.2 Prices, quoted “ex works” shall require the Purchaser to insure and transport the Product from the “point of despatch”. The “point of despatch” shall be as detailed on the Purchase Order Acknowledgement. 3.3 Prices quoted FOB (Free on Board) shall require Gasco to provide appropriate UK or export packing and transportation of the Product to an agreed “destination” in the UK. If the destination is outside the UK the “destination” shall be given on the Purchase Order Acknowledgement as the UK “port of despatch”.3.4 Prices quoted “CFR” (Carriage and Freight), shall require Gasco to provide appropriate UK or export packing and transportation of the Product to the agreed “destination”. If the “destination” is outside the United Kingdom, the “destination” shall be given on the Gasco Quotation / Purchase Order Acknowledgement as the “port of entry”.3.5 Quotations issued by Gasco, unless otherwise stated in them shall be open for acceptance within 90 days of the date of the quotation. A quotation given by Gasco shall not constitute an offer, and Gasco reserves its right to change the quotation after it has been issued.
4.0 Terms of Payment
4.1 The Purchaser shall pay Gasco for the Products in accordance with the provisions of this clause 4.4.2 Gasco shall invoice the Purchaser for the Price of the Products at the point of dispatch from Gasco. 4.3 The Purchaser shall pay to Gasco the total amount of each Invoice within 30 days after the date of the relevant Invoice (unless otherwise stated on the Gasco Quotation / Purchase Order Acknowledgement), notwithstanding that delivery may not have taken place and that title to the Products has not passed to the Purchaser. 4.4 The time for payment shall be of the essence and no payment shall be deemed to have been made until the Gasco has received payment in cleared funds. 4.5 If the Purchaser does not make payment on or before the date on which it is due, interest shall be payable on the overdue amount at the rate of 5% above the base rate of Barclays Bank Plc from time to time. Interest shall be payable at this rate both before and after any judgment is made against the Purchaser until the date on which payment in cleared funds is received in full, including all accrued interest. 4.6 The Purchaser shall make all payments due under this agreement without any deduction by way of set-off, counterclaim, discount or otherwise unless the Purchaser has a valid court order from a court in England and Wales requiring an amount equal to or more than such deduction to be paid to Gasco by the Purchaser, or unless such rights relied on cannot be excluded by the law of England and Wales or the insolvency laws of the jurisdiction in which the Purchaser is resident. 4.7 If payment for the Product on one contract with the Purchaser is overdue, Gasco reserves the right to withhold or suspend performance of their obligations on other contracts with the same Purchaser.
5.0 Import & Export Licenses, Taxes and Duties, Deliveries and Collections
5.1 The Purchaser is responsible for obtaining (at its own cost) such import licenses and other consents in relation to the Products as are required from time to time and, if required by Gasco, the Purchaser shall make those licenses and consents available to Gasco prior to the relevant shipment. 5.2 The Purchaser shall pay all Taxes, Excise Duty and other Government Imposts levied at the “port of entry” and / or in forwarding the Product to its final destination unless stated otherwise on the Purchase Order Acknowledgement. 5.3 The Purchaser shall be responsible for Customs Clearance and the cost of forwarding the Product to its final destination unless stated otherwise on the Purchase Order Acknowledgement.5.4 It is the Purchaser’s obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Products. It is the Purchaser’s obligation to ensure that no Products are exported or imported in violation of the laws of any jurisdiction into or through which the Products are transported during the course of reaching the delivery destination. Where necessary, the Purchaser shall inform Gasco at a reasonable time before delivery of any documents which it is necessary for Gasco to provide in order to allow export of the Products in compliance with the laws of any relevant jurisdiction. 5.5 Gasco arranges all deliveries of the Products unless advised otherwise by the Purchaser. If the Purchaser is arranging collection of the Products, it is the Purchaser’s responsibility to ensure all carriers used are licensed to carry Dangerous Goods under the appropriate Legislation. If the selected carrier refuses collection from Gasco because they are not approved for Dangerous Goods or on any other grounds, the Purchaser may be liable for an administration fee (to be defined by Gasco) and for any courier costs incurred by Gasco if Gasco is then required to arrange delivery on behalf of the Purchaser. 5.6 Gasco reserves the right to refuse collection of goods from the Gasco site by any company at its own discretion.
6.0 Pricing and Payment terms:
The Product prices, Rental Fees and Facility”.” Fees (which are referred to individually and collectively as the “Price(s)”) are set forth with order acknowledgments. Buyer shall make payment in full by cash, check, wire transfer or CTX formatted ACH by the thirtieth day following the date of invoice. Continued open account credit is subject to Seller’s assessment of Buyer’s financial condition and ability to pay. In the event Buyer fails to make any payment when and as due, Seller may, at Seller’s option, exercise any one or more of the following (in addition to any other remedies available to Seller): (a) cease all Product deliveries; (b) require Buyer, as a condition of receiving deliveries, to prepay for such deliveries and pay past due amounts as specified by Seller; (c) collect from Buyer on any delinquent balance interest at the rate of one and one-half percent per month or, if less, the maximum rate permitted by law; and/or (d) remove any Equipment, cylinders and/or other containers provided by Seller and terminate, in whole or in part, this Agreement.
7.0 Charges
Buyer shall pay (a) Seller’s itemized charges set forth in this Agreement, including, without limitation, any rider, exhibit or amendment to this Agreement and (b) any surcharges that Seller may assess due to (i) extraordinary, emergency or other unanticipated increases in the cost of manufacturing, purchasing, supplying or distributing Product and/or (ii) Product shortages (collectively, “Charges”). Charges are not subject to Section 19 and may be amended or others may be added at Seller’s discretion. None of the Charges represents a tax or fee paid to or imposed by any governmental authority, and all of the Charges are retained by Seller. The Seller may not have specifically quantified the relationship between such Charges and the actual costs associated with such Charges, which can vary by Product, service, time and place, among other things.
8.0 Cylinder Return
Buyer shall return, in a good and non-contaminated condition, all cylinders in the return program, with valves closed, complete with caps and fittings and shall pay Seller the replacement value of any contaminated, lost or damaged cylinders, caps or fittings. Buyer shall not permit cylinders or other storage containers furnished hereunder to be filled with any product not furnished by Seller.
9.0 Equipment Change
If in the sole judgment of Seller any Equipment installed by Seller shall become inadequate, including, without limitation, because of a substantial change in Buyer’s requirements of Product, Seller shall have the right to substitute a different size or type of Equipment. The Facility Fee shall be appropriately adjusted by Seller to account for the substitution and Seller will provide written notice to Buyer of the new Facility Fee. No Products shall be returned to Seller without Seller’s written authorization. Buyer shall pay a restocking Charge on all Products returned to Seller, except for returns provided for under the return policy. Notwithstanding the foregoing, certain Products, including custom made items are sold on a final, non-cancelable, non-returnable, non-refundable basis.
10.0 Warranty
Seller warrants that, at the time of delivery, all gas Products furnished hereunder will comply with Compressed Gas Association (CGA) guidelines. Any other Products sold by Seller will conform to Seller’s or manufacturer’s standard specifications. Seller makes no warranty with respect to non-gas Products manufactured by others, but will, on request, to the extent permitted, pass on to Buyer any applicable manufacturer’s warranty. Seller warrants that the services shall be performed in a good and workmanlike manner. 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. SELLER MAKES NO WARRANTIES OF ANY KIND FOR ANY TECHNICAL ADVICE PROVIDED BY SELLER TO BUYER AND ASSUMES NO OBLIGATION OR LIABILITY FOR ANY SUCH TECHNICAL ADVICE WITH REFERENCE TO THE USE OF PRODUCTS OR RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL SUCH ADVICE IF GIVEN AND ACCEPTED IS AT BUYER’S SOLE RISK.
11.0 Remedies; Limitation of Liability
NEITHER SELLER NOR SELLER’S SUPPLIERS OF PRODUCTS (“SELLER’S SUPPLIERS”) SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES. SELLER’S SOLE LIABILITY AND BUYER’S SOLE REMEDY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM PRODUCTS, DELIVERY OF NON-CONFORMING PRODUCTS, SELLER’S FAILURE TO DELIVER SUCH PRODUCTS, INSTALLATION OR MAINTENANCE OF EQUIPMENT, EQUIPMENT MANUFACTURED BY SELLER, OR SERVICES PROVIDED BY SELLER SHALL BE LIMITED TO, AT SELLER’S OPTION, THE REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF THE PRODUCT OR SERVICE IN QUESTION. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, AND SHALL APPLY EVEN WHERE SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE, GROSS NEGLIGENCE OR ACTS AND OMISSIONS OF THE PARTY CLAIMING DAMAGES OR THE PARTY FROM WHOM DAMAGES ARE SOUGHT. ALL CLAIMS BY BUYER HAVING ANYTHING TO DO WITH THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE MADE IN WRITING WITHIN NINETY FIVE DAYS AFTER THE EVENT GIVING RISE TO SUCH CLAIM AND FAILURE OF BUYER TO GIVE SUCH NOTICE SHALL CONSTITUTE A COMPLETE WAIVER BY BUYER OF ANY SUCH CLAIMS AND DEFENSE FOR SELLER AGAINST ANY SUCH CLAIMS. AS USED IN THIS SECTION, THE TERM “BUYER” AND “SELLER” SHALL INCLUDE NOT ONLY THE PARTY TO THIS AGREEMENT BUT ALSO ALL OF ITS AFFILIATES. THE PROVISIONS GOVERNING REMEDIES, LIMITATIONS OF LIABILITY AND INDEMNITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE EXPIRATION, TERMINATION, OR CANCELLATION OF THIS AGREEMENT.
12.0 Indemnity
If there is any injury (including death), loss or damage to the person or property of any third party (including employees of either party), then, subject to any limitations set forth in this Agreement, each party agrees to indemnify and defend the other party to the extent of the indemnifying party’s negligence.
13.0 Custom Orders/Inventory
If Seller has ordered, manufactured or had manufactured for Buyer any custom or special order goods, including, by way of example only and not limitation, specialty gas blends or mixes, customized safety goods, or specialized Equipment, the expiration or early termination of this Agreement shall not relieve Buyer of its obligation to purchase and pay for all such goods.
14.0 Excuse of performance
Seller shall not be liable for failure to perform if prevented by circumstances beyond its reasonable control. If Seller is unable to supply Products to Buyer, then Buyer may obtain replacement products from other sources and place them in the Equipment (if any) or, in the case of all other Products, use them at Buyer’s Location(s) for that period of time during which Seller is unable to supply Buyer. This right is subject to Seller’s prior written consent, which shall not be unreasonably withheld. During this period Buyer shall ensure that Equipment is not damaged and shall compensate Seller if any damages occur and hold Seller harmless for damage or injury.
15.0 Allocation
If sufficient Product is not available from Seller’s normal source of supply for any reason, Seller may allocate Product among its own requirements and its customers. Seller will make reasonable efforts to obtain additional Product from other sources, provided Buyer shall pay all additional costs associated with such Product. Allocation in regard to this Section will completely satisfy and discharge Seller’s supply obligations and Seller will, therefore, not be deemed to be in breach of such obligations.
16.0 Taxes
Prices are exclusive of any amount of federal, state and/or local excise, sales, use, property, retailer’s occupation, gross receipts or similar taxes which may be imposed upon this transaction. Buyer shall pay all such taxes, including taxes on any Equipment, except Seller’s income tax, either directly to the relevant taxing authority or as collected by Seller. In the event that Buyer claims exemption, full or partial, from such taxes, a properly completed exemption certificate with a list of the applicable exempt purchases, which will be acceptable to the appropriate taxing authorities, must be provided to Seller. Buyer will provide the applicable exemption certificate for each Buyer Location. Should such certificate(s) be found invalid, Buyer agrees to bear the burden of any interest and penalties assessed.
17.0 Price Changes
(a) Seller shall have the right to revise any of the Prices up to five percent in a given calendar year for any one or more of the Products by written notice to Buyer. (b) In the event that Seller increases Prices by an amount greater than five percent in a given calendar year, such increase shall become effective fifteen days after written notice is given to Buyer. If within fifteen days of receiving such notice, Buyer furnishes Seller with a copy of a bona fide firm written offer to sell such Product of the same quantities, of the same quality under similar circumstances at prices lower than such revised Prices, Seller shall have fifteen days within which to, at Seller’s sole option, either meet the lower price, exclusive of surcharges, hazmat or regulatory compliance fees, or revert to Seller’s Price in effect before the price increase. If Seller agrees to meet such a lower price, or reverts to Seller’s Price in effect before the price increase, then Seller shall have the right, at its option, to extend the Term for a period of time equal to the Initial Term or the term of the competitive written offer. If Seller does not exercise its option to meet the competitive price or revert to Seller’s previous Price, Buyer may terminate this Agreement as to the Product in question by giving Seller thirty days’ written notice of such termination. (c) Buyer’s rights under this Section shall not apply to any Price increase arising as a result in whole or part of increased costs to Seller or its suppliers due to federal, state, or municipal taxes, tariffs, or government agency required audits or other regulations. (d) The adjustments in Sections 4, 9, 11 and 17 are not subject to the Price Change provisions as outlined above.
18.0 Compliance SDS
Buyer shall instruct its employees and agents to comply, and at all times Buyer shall comply, with all applicable federal, state and local statutes, regulations and laws, including without limitation any applicable anti-corruption/bribery laws and laws regarding the safe handling, transportation, purchase and use of the Products and all relevant reporting obligations under the Emergency Planning and Community Right-To-Know Act, the Occupational Safety and Health Act, and applicable regulations thereunder, and the Foreign Corrupt Practices Act of 1977, as well as any applicable licenses and consents required by such statutes, regulations, laws and regulations, which licenses and consents shall be obtained by Buyer. Buyer acknowledges and agrees that Seller has provided Buyer with all relevant Safety Data Sheets (SDS). Additional SDSs and copies are available: (i) at the local Airgas branch; (ii) by calling 919-368-8518; or (iii) by logging on to www.airgas.com/sds-search. Buyer understands that the Products must not be used without first consulting the SDS. Seller complies with its Anti-Corruption Code of Conduct available to Buyer at https://www.airgas.com/sustainability-corporate-responsibility.
19.0 Buyer’s responsibilities
Products are sold on the condition that they be handled, used and disposed of in conformance with recognized industry and professional standards, including those related to the protection of human health and the environment. Buyer acknowledges that there are hazards associated with the use of the Products, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect all those exposed to such hazards. It is Buyer’s responsibility to ensure that: (i) the use and/or installation of the Products complies with all applicable laws, codes or regulations for the relevant jurisdiction; (ii) the Products are safe for the intended use; and (iii) the Products are handled in a safe and professional manner. Buyer shall have the sole responsibility for determining the suitability of any of Seller’s Products for the use contemplated by Buyer. After delivery of Products to Buyer pursuant to this Agreement, Buyer assumes all risk and liability arising out of the presence, storage, transport or use of the Products.
20.0 Governing Law; Dispute Resolution; Class Action and Trial by Jury Waiver
This Agreement shall be governed by and construed in accordance with the substantive law of the State of Delaware, without regard to its conflict of laws principles. Prior to either party filing a lawsuit, except to prevent the running of any applicable statute of limitations, all disputes and claims regarding this Agreement shall be submitted to non-binding mediation. If the parties cannot agree on a mediator, one will be selected pursuant to American Arbitration Association rules. BOTH PARTIES HERETO HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY HERETO OR TO PRODUCT SUPPLIED HEREUNDER.ANY CLAIM MUST BE BROUGHT IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). THE PARTIES EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM.NOTICES: Unless otherwise provided herein, all notices shall be in writing, addressed to the intended recipient at the address on the first page hereof or such other address as the recipient may provide, and given via the following methods: hand delivered, sent by overnight courier providing proof of delivery, or sent by email to an address provided by the recipient for such purpose, and shall be deemed to have been given on the date such notice is hand delivered or sent, as applicable. Notices of excuse of performance, allocation, adjustments to Prices or Charges (including the establishment of any surcharges) provided hereunder may also be sent by U.S. mail and shall be deemed to have been given two business days after being deposited with the U.S. Postal Service. Notwithstanding the foregoing, a notice of termination under Section 2 or 19 hereof must be given by certified mail or overnight courier providing proof of delivery.
21.0 Miscellaneous
(a) Buyer represents that Buyer is contractually free to enter into this Agreement and to perform hereunder. Buyer shall indemnify and defend Seller against all damages Seller may suffer that arise out of or relate to any actual or alleged breach of the foregoing representation. (b) The invalidity or unenforceability of any provision of this Agreement under the laws of any state in which this Agreement is in effect shall not affect the validity or enforceability of any other provision of this Agreement. (c) Buyer shall not require waiver or release of any personal right or execution of any document that conflicts with this Agreement or provides for additional obligations of the parties from Seller’s employees, subcontractors or representatives in connection with Seller’s entry onto the premises of Buyer and Buyer agrees that no such release, waiver or document shall be binding, if executed by Seller’s employee, subcontractor or representative. (d) The waiver by either party of any of its rights under this Agreement shall not be construed as constituting a precedent. (e) Buyer must receive Seller’s consent to assign this Agreement. This Agreement shall ensure to the benefit of Seller and Buyer and their respective successors and assigns. If Buyer transfers a material part of its assets and/or its operations at any Buyer Location or its stock to a third party, Buyer shall require the third party to accept an assignment of this Agreement, as it relates to any applicable Buyer Location or Product, in form and content acceptable to Seller. (f) This Agreement and materials marked “Confidential” will be kept confidential by Buyer. (g) Buyer represents and warrants that this Agreement has been duly and validly authorized, executed, and delivered. (h) This Agreement may be executed in counterparts, each of which shall be an original and both of which taken together shall constitute the same instrument. Transmission by facsimile, email or other form of electronic transmission of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart and legal, valid and binding execution by such party. (i) As a part of the consideration for this Agreement, the applicable provisions of Section 13 (Remedies; Limitation of Liability) shall extend to and be enforceable by and for the benefit of Seller’s Suppliers. (j) This Agreement with any riders, exhibits and/or amendments represents the entire agreement between Seller and Buyer in relation to the sale of Products. Amendments to this Agreement shall be in writing and no acceptance by Seller of any purchase order, acknowledgment, or other document specifying different and/or additional terms or conditions shall be effective.