TERMS AND CONDITIONS OF SALE
Within these Terms and Conditions of Sale, CUSTOMER' shall mean you the buyer of the goods and products from us, Terry Supply Co. (TERRY'). Said goods and products may include, without limitation, specialty gases and any related equipment, including the cylinders or containers (collectively. Cylinders') that gases may be contained within, all of which are referred to herein as the 'Products
- Sale Terms. Any purchase of Products from TERRY by CUSTOMER shall be subject to and governed by the terms and conditions Terms' ) contained herein. These Terms shall govern not only CUSTOMER s immediate purchase, but also any subsequent purchase from TERRY, if said subsequent purchase is not otherwise covered by another written document that both parties have signed.
- Price. All quotations are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face of the quotation. In case of a conflict between the terms and conditions stated herein and those appearing on the face of the quotation, the latter shall control. The prices of Products are TERRY s published prices and/or as stated in the quotation, however, TERRY reserves the right to change the prices to CUSTOMER. All prices are listed F.O.B. shipping point, TERRY standard domestic packaging, insurance and freight not included Title and risk of loss for the Products shall pass at the F.O.B point unless the Product is delivered in a TERRY vehicle. Payments by CUSTOMER shall be due net cash thirty (30) days from the date of TERRY s invoice. The sale of any Product shall not include any technical data or proprietary rights of any kind.
- Taxes. The CUSTOMER shall pay to TERRY In addition to the price or prices specified the amount of all governmental sales, property, excise, import or export duties, or other similar taxes or charges, present or future that TERRY may be required to pay or collect from the CUSTOMER with respect to the production, sales, transportation or use of any gases or equipment sold or furnished by TERRY to CUSTOMER, except taxes imposed upon or measured by net income and taxes for which the CUSTOMER shall have furnished TERRY with applicable exemption certificates.
- Delinquent Accounts. Should CUSTOMER fail to pay TERRY for the Products when payment is due, TERRY may use all remedies available law or equity to recover any sums due to TERRY. TERRY shall be entitled to collect all costs associated with the exercise of any of its remedies including reasonable attorney S fees and costs, whether said fees and costs are incurred prior to or during litigation, post-judgment, on appeal, or in bankruptcy. Additionally. TERRY shall be entitled to collect interest on any past due sums from the date that said sums become delinquent, at a rate of interest equal to the published Wall Street Journal prime rate of interest which may vary from time to time plus five percent (5%). or up to the maximum rate permitted by law, whichever is less. If the Wall Street Journal prime rate is no longer published or available then TERRY may select any other published prime rate of interest which shall then be substituted for the Wall Street Journal prime rate. TERRY shall be under no obligation to provide notice of this substitution. TERRY reserves the right to change credit terms or delay or cancel delivery of Products to CUSTOMER in the event that CUSTOMER fails to make prompt payment of any sums due to TERRY. TERRY reserves, and CUSTOMER hereby grants to TERRY a purchase money security interest in all Products shipped to CUSTOMER (and any proceeds resulting therefrom). TERRY s security interest in said Products continues until TERRY has received payment in full for those Products and any charges related thereto. CUSTOMER hereby authorizes TERRY to file a financing statement with state and/or local authorities to perfect TERRY S security interest At TERRY s request, CUSTOMER shall promptly execute and deliver any and all documents necessary to protect TERRY S security interest in the Products. CUSTOMER hereby further authorizes TERRY to file a copy of these Terms and the other applicable contract documents as the financing statement CUSTOMER hereby acknowledges that the Products purchased hereunder are being purchased for business or commercial purposes, and are not being purchased for personal, family, or household purposes.
- Delivery and Cylinder Care. All gas Products furnished by TERRY shall be delivered in TERRY Cylinders, FOB shipping point. TERRY may, in the sole discretion of TERRY and its employees, refuse to fill a customer s Cylinder if TERRY reasonably believes that such Cylinder and valve does not satisfy industry standards, including those of the Compressed Gas Association, and/or any State or Federal requirements or regulations. TERRY Cylinders used for the delivery of Products furnished hereunder shall be manufactured in accordance with the rules and regulations of the U.S. Department of Transportation CUSTOMER may not refill any TERAY Cylinder anywhere other than TERRY Whenever the pressure of the compressed gas in said Cylinders is reduced to the minimum required working pressure, CUSTOMER shall close the valves of said Cylinders before detaching them from CUSTOMER s equipment and shall return said Cylinders, with the valve closed and all fittings attached, in good condition and repair and with the protective cap in place securely tightened, to the shipping point of TERRY from which the Cylinders were originally shipped to the CUSTOMER, with all transportation and delivery charges prepaid by the CUSTOMER.
- Cylinder Rental Terms. If CUSTOMER rents Cylinders from TERRY, CUSTOMER shall be required to place a deposit with TERRY and shall be responsible for all charges associated with said rental. CUSTOMER s deposit shall be returned upon return of the Cylinder The CUSTOMER shall pay all Cylinder rental charges when due. Rental charges may be modified from time to time. Products are generally not returnable; however, if a Product is returnable, in TERRY s sole discretion, a restocking charge will be applied to all Products accepted for return to TERRY. No portion of the purchase price will be returned if any returned Product has been used or damaged. No credits will be allowed for gases or equipment returned without TERRY s express prior written authorization. In the event of termination for any reason, CUSTOMER shall purchase any unused or expired non-standard products held in inventory at TERRY locations specifically for CUSTOMER. TERRY reserves the right to change the Gas Cylinder Rental Terms to CUSTOMER.
- Rental Cylinder Return. CUSTOMER shall, at all times, utilize best efforts and good faith to return to TERRY all of TERRY s Cylinders once no longer needed. Any Cylinders not returned to TERRY within sixty days of the most recent purchase of gas may be deemed lost or destroyed, and CUSTOMER shall pay TERRÝ the value of the Cylinder at TERRY s then-prevailing applicable Cylinder replacement charge, minus any applicable deposit. CUSTOMER s obligation to pay for accrued yet unpaid sums shall survive any termination hereunder.
- CUSTOMER Obligations. The CUSTOMER and all of its employees, agents, and representatives shall strictly comply with all applicable federal, state, and local statutes, regulations and orders regarding the safe handling, transportation, and use of the Products. CUSTOMER acknowledges that it understands the hazardous nature of the Products and that CUSTOMER shall warn, protect, and train, as appropriate and customary, any employees, customers, and any other persons whatsoever who may be exposed to the Products. CUSTOMER also acknowledges and agrees that TERRY has provided or will provide CUSTOMER with all relevant Material Safety Data Sheets and that additional Material Safety Data Sheets are available upon request. CUSTOMER is aware that OSHA regulations may require CUSTOMER to develop and implement a written chemical hazard communications program for CUSTOMER employees, customers and/or others with respect to the Products CUSTOMER understands that the Products must not be used without first consulting the Material Safety Data Sheets and will ensure that any person who may come in contact with a Product shall consult said Material Safety Data Sheets. CUSTOMER agrees to comply with all U.S. export regulations which control the Products it purchases from TERRY, including without limitation, the Export Administration Regulations administered by the U.S. Department of Commerce, and the International Traffic in Arms Regulations administered by the U.S. Department of State.
- Termination. TERRY may immediately terminate any order upon written notice to the CUSTOMER if any proceeding in bankruptcy or for receivership shall be instituted by or against the CUSTOMER, or if the CUSTOMER shall make an assignment for the benefit of its creditors or shall become insolvent or admit its inability to pay its debts as and when they become due. In addition, TERRY may immediately terminate upon written notice to CUSTOMER, if CUSTOMER is in breach of any material condition of obligation hereunder and such breach has not been remedied within thirty (30) days (or such longer period as shall be reasonably necessary to effect a cure), provided that all reasonable efforts to effect a cure shall have been commenced within such thirty (30) day period and are continuing, after written notice of such breach has been given to CUSTOMER. Without limiting the generality of the foregoing and for purposes hereof, CUSTOMER shall be deemed to be in breach of a material condition hereof with no cure permitted, and TERRY shall be entitled to immediately terminate any order, if any amount due and owing to TERRY for Products, Cylinder charges, or other goods or services shall be past due for more than thirty (30) days after written notice thereof has been given to the CUSTOMER, or if the CUSTOMER violates any technical or safety directions given by TERRY with respect to any Product or breaches Paragraph 8 above. In the event of cancellation or termination, for any reason, the full amount of CUSTOMER s order shall be immediately due and owing to TERRY.
- Warranty. TERRY warrants that its Products shall conform to TERRY s standard specifications. If any Product delivered hereunder shall not be as warranted, CUSTOMER s sole and exclusive remedy shall be to reject the non-conforming Product and to require TERRY to repair or replace (the choice of which is at TERRY s option) the Product at no cost to the CUSTOMER; provided that the CUSTOMER shall give TERRY notice of its claim within ten (10) days of the date of delivery of the non-conforming Product to CUSTOMER or the end user (whichever is earlier), in such event, CUSTOMER shall also permit TERRY to inspect and/or test the Product to confirm that it is non-conforming by returning the Product to TERRY freight prepaid. This warranty is void for any Product that has been repaired or altered by anyone other than an authorized employee of TERRY, or that has been subject to corrosion, erosion, abuse, misuse, negligence, accident, or improper installation or operation. In no event shall TERRY’s liability exceed the amount actually paid by CUSTOMER for the Product for which a claim is made. THE WARRANTIES AND REMEDIES STATED IN THIS SECTION ARE EXCLUSIVE. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
- Indemnification and Limitation TERAY shall not be liable for, and CUSTOMER hereby agrees to indemnity, defend, and hold harmless TERRY from and against any claims arising from the death or injury to any persons or damage to any property (1) attributable to the negligence or willful misconduct of the CUSTOMER or any end user or of the respective employees or agents of either and whether joint or concurrent; or (ii) the use by the CUSTOMER or any end user of any Products in combination with other substances. The CUSTOMER shall not be liable for, and TERRY hereby indemnifies and agrees to defend the CUSTOMER, subject to the limitations of Paragraph 10 above, from and against any claims arising from, the death or injury to any persons to the extent attributable to the negligence or willful misconduct of TERRY or its employees or agents. In no event shall TERRY or the CUSTOMER be liable for any incident, special, indirect or consequential damages, including, without limitation, loss or profits or business opportunity arising out of any purchase order or its breach, even if advised of the possibility of those damages. Notwithstanding the foregoing or anything to the contrary in CUSTOMER’s order or any other document, except for personal injury caused by TERRY’s sole negligence, TERRY s liability for any damages howsoever occurring, whether based in tort, warranty, strict liability, negligence or any other theory of law shall be limited to and not exceed the payment, if any, received by TERRY for the specified Products or service furnished or to be furnished, as the case may be, which is the subject of any claim on dispute, even if a term of any agreement fails of its essential purpose. CUSTOMER agrees the foregoing exclusion and limitation is a reasonable allocation of risk. No action, regardless of form, arising out of, or in any way connected with the Products furnished by TERRY, may be brought by CUSTOMER more than one (1) year after the cause of action has accrued.
- 12. Force Majeure Shipping dates are estimates and are not guaranteed. Neither party shall be liable for damages to the other for any failure or delay in the performance of any obligations hereunder, which said failure or delay was caused by strike, lockout, or other industrial disturbance, fire, earthquake, explosion, flood, storm. Act of God, accident, governmental action or regulation, armed conflict, civil disturbance, terrorism, riot, curtailment, or failure to obtain sufficient raw material or labor or utilities, machinery or equipment breakdown, lack of transportation or distribution facilities, or any other causes whatsoever (whether or not of the same class or kind as those set forth above) beyond its reasonable control and which, by the exercise of reasonable diligence, it is unable to overcome.
- Law. These terms shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its law concerning conflict of laws. These terms, together with Product specifications and the applicable quotation by TERRY, if any, is the entire agreement between the parties with respect to the subject matter hereof and supersedes all existing agreements and understandings, oral or written, relating to the subject matter hereof. No waiver of any breach of any provision hereof shall be deemed to be a waiver with respect the breach of such provision or any other provision of these terms on any subsequent occasion. Both parties hereto waive all right or entitlement to trial by jury in connection with any dispute that arises out of or relates in any way hereto All notices required or permitted and all requests for approvals, consents, and waivers must be in writing and must be delivered to the parties at their respective addresses by a method providing for proof of delivery. Any notice or request will be deemed to have been given upon the date of receipt.
- Controlling Terms of Sale. TERRY desires to provide you with prompt and efficient service. However, to negotiate individually, the terms and conditions of each sales contract would substantially impair TERRY’s ability to provide such services. Accordingly, products furnished and services rendered by TERRY are sold only on the terms and conditions stated herein and notwithstanding any terms or conditions on CUSTOMER $ order or order acknowledgment form, which are expressly rejected, TERRY s performance of any contract is expressly made conditional on CUSTOMER s agreement to and acceptance of TERRY s terms and conditions stated herein. TERRY shall not be bound by any provision in the CUSTOMER’s orders confirmation or order acknowledgment notices or other business forms. Any conflict between the Terms herein and a CUSTOMER s offer, the terms and conditions of a purchase counter-proposed terms contained on a Delivery Ticket confirmation notice, or any other business form, shall be resolved in favor of the Terms herein. No modification of any of the provisions of these terms shall be effective unless said modification is evidenced by a writing that is signed by both parties which specifically identifies the provision(s) of these Terms that is or are being modified. Each term hereof is severable. Accordingly, if a court having jurisdiction determines that any term is invalid or unenforceable under applicable law, that determination will not affect the other terms hereof and/or any contract, as the case may be, which other terms will continue to be enforced as if the invalid or unenforceable terms were omitted.
- Hazardous Substance Surcharge. A hazardous material surcharge is added to each invoice. These surcharges are intended to cover the increasing costs faced by TERRY, including, but not limited to, complying with Federal, State and local regulations involving the storage, transportation and disposal of hazardous materials, energy/fuel price spikes, loss of local production facilities, raw material or commodity supply dislocations, and other similar or dissimilar events. The amount of the Surcharge may not be specifically related to actual costs incurred by TERRY, which may vary by the type of product or service, geographic location, and time. The Surcharge, unless specifically identified otherwise, is not a federal, state, or local tax and it is not required by any Federal, State or local agency or authority.
- Headings. The headings of each section are included for convenience of reference only and shall not be relied on in interpreting or construing the specific intentions of the parties or the terms of their agreement herein.