NOTICE: These Terms and Conditions shall apply to and be incorporated by reference into Seller’s quotations, purchase orders, and invoices regarding the sale of Products to Buyer. Seller’s agreement to sell any Products is expressly conditioned upon Buyer's acceptance of these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and will not be binding upon Seller unless agreed to in writing by Seller; moreover, no pre-printed facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative. Further, by accepting any Products hereunder, Buyer specifically waives any additional or different terms and conditions. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Contract shall not be binding on Seller. Any order to perform work and Seller's performance of work shall constitute Buyer’s acceptance of these Terms and Conditions. Unless otherwise specified in the quotation or Contract, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller at any time. Seller’s acceptance of Buyer’s purchase orders must be specifically agreed upon in writing by an authorized representative of Seller.
1. Definitions. Unless Seller otherwise agrees:
"Buyer" means the entity to which Seller is providing Products under the Contract.
"Contract" means either the contract agreement signed by both parties or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products, together with these Terms and Conditions and any other documents incorporated therein by reference, such as the final quotation, and Seller’s order acknowledgement as well as any changes under Article 14.
“Contract Price” means the agreed amount stated in the Contract for the sale of Products and Cylinder rental, including adjustments (if any) in accordance with the Contract. Cylinder rental fees are subject to adjustment upon written notice from Seller to Buyer.
“Cylinders” means the gas cylinders or other containers used by Seller to deliver Products.
“Hazardous Materials” means any chemical, substance, material or emission that is or may be regulated, governed, listed or controlled pursuant to any international, national, federal, provincial, state or local statute, ordinance, order, directive, regulation, judicial decision or other legal requirement applicable to Site as a toxic substance, hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, pesticide, radioactive material, regulated substance or any similar classification, or any other chemical, substance, emission or material, including, without limitation, petroleum or petroleum-derived products or by-products, regulated, governed, listed or controlled or as to which liability is imposed on the basis of potential impact to safety, health or the environment pursuant to any legal authority of the United States or the country of the Site.
“Products” means all gas, equipment, and other goods Seller has agreed to supply to Buyer under the Contract.
"Seller" means Advanced Specialty Gases LLC, a Nevada limited liability company.
"Site" means the premises where Products are used, not including Seller’s premises.
“Terms and Conditions” means these Terms and Conditions of Sale.
2. Payment. Except as otherwise agreed to by Seller in writing, Buyer shall pay Seller all invoiced amounts in U.S. dollars and without right of set-off. Seller shall be entitled to payment of the Contract Price and all charges and expenses associated with Seller’s delivery of Products and rental of Cylinders. Buyer shall pay Seller all invoiced amounts in U. S. dollars within 10 days from date of invoice. Buyer shall pay a monthly late payment charge computed at the rate of 1.5% or the maximum interest rate permitted by applicable law, whichever is less, on any past-due amount for each calendar month (or fraction thereof) that the payment is overdue and all costs of Seller’s collection efforts including, without limitation, all collection fees, reasonable attorneys’ fees, and court costs. Should Buyer dispute any invoice, Buyer shall pay the full amount of outstanding invoice by the due date and within 30 days from the date of invoice, provide Seller a written explanation outlining the basis for the dispute. Failure to give such notice shall constitute Buyer’s unqualified acceptance of the invoice and waiver of any such claims. Seller shall investigate any disputed invoice and within a reasonable time, notify Buyer of the outcome of such investigation.
3. Taxes and Duties. Buyer agrees to pay directly when due and payable all taxes, surcharges, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, import, sales, use, environmental, and other governmental taxes or assessments, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), arising from Seller’s performance of its obligations hereunder or Buyer’s payment for work hereunder ("Buyer Taxes"), excluding taxes based on Seller’s net income or any withholding or other payroll taxes related to Seller’s employees. All payments due and payable by Buyer to Seller hereunder shall be made in the full amount of the Contract Price, free and clear of all deductions and withholding for Buyer Taxes.
4. Deliveries; Title Transfer; Risk of Loss; Storage; Cylinders.
4.1 Seller shall deliver Products in Cylinders to Buyer EXW Seller’s facility (Incoterms 2020). Buyer shall pay all shipping and delivery costs and charges or reimburse Seller for all shipping and delivery charges incurred. Except for those obligations that are consistent with Incoterms 2020 specifically stated above, Seller shall not be liable in any claim asserted by Buyer with respect to delivery. Partial deliveries will be permitted. Seller shall measure and record the volume of Products in Cylinders using Seller’s normal procedures and practices prior to delivery. Delivery times are approximate. Seller will use reasonable efforts to fill all orders according to the agreed schedule and quantity, but unless otherwise agreed by Seller in writing, failure to deliver Products by any such deadline shall not entitle Buyer to rescind orders, to terminate the Contract, or to any compensation or damages of any kind.
4.2 Title to Products shall pass to Buyer upon delivery. Title to Cylinders shall remain with Seller at all times unless agreed upon in writing by Buyer and Seller.
4.3 In all events risk of loss or damage to Products and Cylinders shall transfer to Buyer upon delivery to Buyer and shall remain with Buyer until returned to Seller pursuant to Section 4.5.
4.4 If any Products cannot be shipped to or received by Buyer when ready due to any cause not attributable to Seller, Seller may charge Buyer a fee for rescheduling the delivery or may ship Products to a storage facility at Buyer’s sole expense.
4.5 Buyer shall not permit the refilling of any Cylinders by any third party with any substance, whether gas, liquid or solid. Buyer shall, at Buyer’s cost and expense, return all Cylinders to Seller free of contamination with valves closed. Buyer shall pay Seller for any loss or damage to Cylinders beyond normal wear and tear and for any decontamination costs or expenses. Cylinder rental fees shall be owed by Buyer from the time each Cylinder departs Seller’s facility until such time as the Cylinder is returned to Seller’s facility, or for damaged or lost Cylinders, until such time as Buyer has paid Seller the full replacement cost of the damaged or lost Cylinder. Buyer shall, from time to time, at the request of Seller, submit an accounting of Cylinders delivered to Buyer which have not been returned and shall permit Seller to enter Site to verify such accounting. Buyer will promptly remove any liens and claims against Cylinders due to their location at Buyer’s Site or while in Buyer’s possession, custody, or control. Buyer hereby authorizes Seller to file a UCC-1 Financing Statement in order to reflect Seller’s ownership of Cylinders and will provide Seller with any assistance necessary to make such filing.
5. Excusable Delays. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, pandemics, quarantines, insurrection, acts (or omissions) of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, accidents, transportation or logistics shortages or delays, shortage of or inability to obtain materials or components, shortage of or inability to obtain utilities or other form of energy or feedstock, supplier or vendor non-performance, embargo, or government act. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If Seller is delayed by any acts (or omissions) of Buyer, or Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and schedule adjustment.
6. Compliance with Laws, Codes and Standards.
6.1 The Contract Price and delivery dates will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change after Seller’s proposal date in industry specifications, codes, standards, applicable laws or regulations.
6.2 Seller’s obligations are conditioned upon Buyer complying with all U.S. and other applicable trade control laws and regulations and Buyer timely obtaining any required authorization, such as an export license, import license, foreign exchange permit, etc.
7.1 Provided that Buyer fulfills its payment obligations to Seller, Seller warrants to Buyer that, during the warranty period, Products shall substantially conform with Seller’s written specifications for the applicable Products. Any Cylinders shall substantially conform with applicable industry codes, standards, applicable laws, or regulations, but shall otherwise be provided “as is.”
7.2 Unless otherwise stated in the Contract, the warranty period for Products shall commence upon delivery and end three months thereafter.
7.3 If Products do not meet the above warranties, Buyer shall promptly notify Seller in writing within ten days after discovery and within the warranty period and shall follow all reasonable instructions of Seller. Seller shall, with reasonable speed at Seller’s option, replace the defective Products. If in Seller’s reasonable judgment the Product cannot be replaced, Seller shall refund or credit monies paid by Buyer for that portion of Products or Cylinders that do not meet the above warranties. Any replacement by Seller hereunder shall not extend the applicable warranty period. Seller shall, at its sole discretion, determine the specifications of any test to determine the presence of a defect. Seller shall have no liability for defects that arise after the warranty period has expired. If Products or Cylinders alleged by Buyer to not meet the above warranties are (i) not under warranty, (ii) determined not to be defective, or (iii) defective due to any cause or condition not covered under the warranties provided herein, Buyer agrees to reimburse Seller for all reasonable expenses incurred in traveling to the Site or in shipping, handling, or inspecting such Products or Cylinders.
7.4 These warranties and remedies are conditioned upon the proper storage and use of Products and Cylinders. Seller does not warrant Products against normal wear and tear or damage caused by damage in transit, misuse, negligence, accident, or use against the advice of Seller. Any modification of any Products not authorized by Seller in writing shall render the warranty null and void.
7.5 Article 7 provides the exclusive remedies for all claims based on the failure of or defect in Products or Cylinders, whether the failure or defect arises before, during or after the applicable warranty period and whether a claim, however described, is based on contract, warranty, indemnity, tort, or extra contractual liability (including negligence), strict liability or otherwise. The warranties provided in Article 7 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. SELLER HEREBY DISCLAIMS (AND BY ACCEPTING THE PRODUCTS, BUYER HEREBY WAIVES) ANY AND ALL OTHER STATUTORY, EXPRESS OR IMPLIED WARRANTIES, REMEDIES OR CONDITIONS WITH RESPECT TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, COMPLIANCE WITH ANY RULES OR PRACTICES ESTABLISHED UNDER APPLICABLE LAWS, REGULATIONS OR STANDARDS, OR ANY OTHER EXPRESS, STATUTORY OR IMPLIED WARRANTY OF ANY KIND ARISING OUT OF THE SALE, DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS OR ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8. Limitation of Liability.
8.1 The total liability of Seller for all claims arising out of or relating to the performance or breach of the Contract or any Products shall not exceed (a) the Contract Price or (b) if this Contract is in the form of a blanket or master agreement under which Buyer places an order with Seller for Products to be purchased, the final price of the particular order under which the specific Products giving rise to the claim are supplied or performed. Seller’s liability shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim that accrued prior to that date by commencing an action before the expiration of the applicable statute of limitations or repose, but not later than one year after the expiration of such warranty period.
8.2 SELLER SHALL NOT BE LIABLE FOR LOSS OF PROFIT OR REVENUES, LOSS OF PRODUCT, LOSS OF USE OF PRODUCTS OR SERVICES OR ANY ASSOCIATED EQUIPMENT, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, DAMAGE TO REPUTATION, COST OF CAPITAL, COST OF COVER OR REPLACEMENT, DOWNTIME COSTS, INCREASED OPERATING COSTS, CLAIMS OF BUYER’S CUSTOMERS FOR SUCH DAMAGES, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED.
9. Dispute Resolution, Governing Law.
9.1 Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity, or termination, and any claim, legal action or proceeding regarding the dispute shall be submitted to the state or federal courts of competent jurisdiction located in Houston, Texas, and the parties irrevocably consent to the exclusive jurisdiction of those courts for such claims.
9.2 The validity, performance and all matters relating to the interpretation and effect of the Contract and all further documents executed pursuant to it shall be construed and interpreted in accordance with the laws, excluding the rules on the conflict or choice of laws, of the State of Texas.
9.3 In the event of any legal action concerning or arising out of this Contract, the prevailing party shall be entitled to an award of attorney’s fees and legal and accounting fees and costs, in addition to other relief.
9.4 No action against Seller for breach hereof shall be commenced more than one year after accrual.
10. Confidentiality. If Seller and Buyer have entered into a separate confidentiality or nondisclosure agreement, the terms thereof shall be incorporated into the Contract by reference.
11. Health and Safety; Site Access and Conditions.
11.1 Buyer shall take all necessary precautions, at all times, for the health and safety of Seller personnel at Site.
11.2 Buyer shall provide Seller access to Site free of charge as necessary for Seller’s performance of the Contract, including but not limited to making deliveries, inspecting Cylinders, or removing Cylinders.
12. Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its shareholders, directors, employees, agents, and affiliates from and against any and all claims, damages, losses, causes of action, demands, judgments and expenses (including, without limitation, consultant and expert expenses, court costs, and reasonable attorneys’ fees) arising out of or relating to (a) any Hazardous Materials which are or were (i) improperly handled or disposed of by Buyer or Buyer’s employees, agents, contractors or subcontractors, or (iii) brought, generated, produced or released on Site by parties other than Seller; (b) Buyer’s, or its employees’, agents’, contractors’, or invitees’, negligence; (c) any personal injury or property damage to Seller’s personnel or property at the Site; or (d) Buyer’s breach of the Contract.
13. Termination and Suspension.
13.1 Seller shall have the right to suspend or terminate the Contract (or any portion thereof) immediately for cause if: (i) Buyer becomes insolvent or files for protection from creditors under any bankruptcy or insolvency laws; (ii) there is an excusable delay (as per Article 5 above) lasting longer than 120 days; or (iii) Buyer materially fails to comply with any terms of the Contract, including but not limited to, failure or delay in fulfilling any payment conditions.
13.2 If the Contract (or any portion thereof) is terminated for any reason, Buyer shall pay Seller for all Products delivered before the effective date of termination, plus a cancellation charge equal to 80% of the Contract Price custom Products and 15% of the Contract Price for all other Products of the Contract Price allocable to the undelivered Products.
13.3 Buyer shall pay any reasonable expenses incurred by Seller in connection with a suspension or termination, including expenses for repossession, fee collection, demobilization or remobilization or costs of storage during suspension upon submission of Seller’s invoice(s). The schedule for Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.
14. Changes. Each party may at any time propose changes in the schedule or scope of Products in the form of a draft change order. Seller is not obligated to proceed with the changed schedule or scope until both parties agree to such change in writing. If mutually agreed, the changes will be documented in a written document signed by representatives of each party who have actual authority to legally bind Buyer or Seller, along with any equitable adjustments in the Contract Price or schedule. Unless otherwise agreed by the parties, pricing for additional work arising from changes in laws, rules and regulations shall be charged at time and material rates.
15. General Clauses.
15.1 Buyer represents and warrants to Seller that as of first delivery of Products to Buyer, Buyer is not obligated under any other agreement to purchase any Products exclusively from a third-party supplier. In the event the foregoing representation and warranty proves to be false, Buyer will indemnify, and hold harmless Seller from and against any and all costs, fees (including reasonable legal fees and expenses), damages, liabilities and claims which Seller may incur in connection with any claim or claims asserted by any third party as a result thereof.
15.2 Seller may assign or delegate its rights and obligations under the Contract, in part or in whole, to any of its affiliates or may assign any of its account receivables under this Contract to any third party without Buyer’s consent, and may subcontract portions of the work, so long as Seller remains responsible for it. Buyer agrees to execute any documents that may be necessary to effect Seller’s assignment or novation. The delegation or assignment by Buyer of any or all of its duties or rights under the Contract without Seller’s prior written consent shall be void.
15.3 If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and is valid and enforceable.
15.4 The following Articles shall survive termination or cancellation of the Contract: 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, and 15.
15.5 The Contract represents the entire agreement between the parties. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives.
15.6 This Contract may be executed in multiple counterparts that together shall constitute one agreement.
15.7 This Contract is for the benefit of the parties and not for any third party.
15.8 Seller and Buyer, expressly intending that no employment, partnership, or joint venture relationship is created by the Contract, hereby agree as follows: (i) neither Buyer nor anyone employed by or acting for or on behalf of Buyer shall ever be or be construed as an employee of Seller, and Seller shall not be liable for employment or withholding taxes respecting Buyer or any employee of Buyer; and (ii) Seller shall be free to contract with, and provide Seller’s products and services to, parties other than Buyer during the term of the Contract.