Page 418 - ParkerBrassCatalog2010

Parker Hannifn Corporation
Parker Brass Products Division
Otsego, Michigan
Catalog 3501E Offer of Sale
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1. Terms and Conditions of Sale: All descriptions, quotations, propos-
als, offers, acknowledgments, acceptances and sales of Seller’s prod-
ucts are subject to and shall be governed exclusively by the terms and
conditions stated herein. Buyer’s acceptance of any offer to sell is lim-
ited to these terms and conditions. Any terms of conditions in addition
to, or inconsistent with those stated herein, proposed by Buyer in any
acceptance of an offer by Seller, are hereby objected to. No such addi-
tional, different or inconsistent terms and conditions shall become part
of the contract between Buyer and Seller unless expressly accepted in
writing by Seller. Seller’s acceptance of any offer to purchase by Buyer
is expressly conditional upon Buyer’s assent to all the terms and con-
ditions stated herein, including any terms in addition to, or inconsistent
with those contained in Buyer’s offer. Acceptance of Seller’s products
shall in all events constitute such assent.
2. Payment: Payment shall be made by Buyer net 30 days from the
date of shipment of the items purchased hereunder. Parker reserves
the right to charge interest on all past due amounts. Any claims by
Buyer for omissions or shortages in a shipment shall be waived unless
the Seller receives notice, thereof within 30 days after Buyer’s receipt
of the shipment.
3. Delivery: Unless otherwise provided on the face hereof, delivery
shall be made F.O.B. Seller’s plant. Regardless of the method of de-
livery, however, risk of loss shall pass to Buyer upon Seller’s delivery
to a carrier. Any delivery dates shown are approximate only and Seller
shall have no liability for any delays in delivery.
4.Warranty: Seller warrants that the items sold hereunder shall be free
from defects in material or workmanship for a period of 365 days from
the date of shipment to Buyer, or 2,000 hours of use, whichever expires
frst. THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WAR-
RANTY PERTAINING TO ITEMS PROVIDED HEREUNDER. SELLER
MAKES NO OTHER WARRANTY, GUARANTEE, OR REPRESENTA-
TION OF ANY KIND WHATSOEVER. ALL OTHER WARRANTIES,
INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY AND FIT-
NESS FOR PURPOSE, WHETHER EXPRESS, IMPLIED, OR ARIS-
ING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF
DEALING ARE HEREBY DISCLAIMED.
NOTWITHSTANDING THE FOREGOING, THERE ARE NO WAR-
RANTIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOL-
LY OR PARTIALLY, TO BUYER’S DESIGNS OR SPECIFICATIONS.
5. Limitation Of Remedy: SELLER’S LIABILITY ARISING FROM
OR IN ANY WAY CONNECTED WITH THE ITEMS SOLD OR THIS
CONTRACT SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR
REPLACEMENT OF THE ITEMS SOLD OR REFUND OF THE PUR-
CHASE PRICE PAID BY BUYER, AT SELLER’S SOLE OPTION. IN
NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NA-
TURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST
PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH
THIS AGREEMENT OR ITEMS SOLD HEREUNDER, WHETHER AL-
LEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS OR
IMPLIED WARRANTY, OR IN TORT, INCLUDING WITHOUT LIMITA-
TION, NEGLIGENCE, FAILURE TOWARN OR STRICT LIABILITY.
6. Changes, Reschedules and Cancellations: Buyer may request to
modify the designs or specifcations for the items sold hereunder as
well as the quantities and delivery dates thereof, or may request to
cancel all or part of this order, however, no such requested modifca-
tion or cancellation shall become part of the contract between Buyer
and Seller unless accepted by Seller in a written amendment to this
Agreement. Acceptance of any such requested modifcation or cancel-
lation shall be at Seller’s discretion, and shall be upon such terms and
conditions as Seller may require.
7. Special Tooling: A tooling charge may be imposed for any
special tooling, including without limitation, dies, fxtures, molds and
patterns, acquired to manufacture items sold pursuant to this contract.
Such special tooling shall be and remain Seller’s property notwith-
standing payment of any charges by Buyer. In no event will Buyer
acquire any interest in apparatus belonging to Seller which is utilized
in the manufacture of the items sold hereunder, even if such appara-
tus has been specially converted or adapted for such manufacture
and notwithstanding any charges paid by Buyer. Unless otherwise
agreed, Seller shall have the right to alter, discard or otherwise
dispose of any special tooling or other property in its sole discretion at
any time.
8. Buyer’s Property: Any designs, tools, patterns, materials, drawings,
confdential information or equipment furnished by Buyer or any other
items which become Buyer’s property, may be considered obsolete
and may be destroyed by Seller after two (2) consecutive years have
elapsed without Buyer placing an order for the items which are manu-
factured using such property. Seller shall not be responsible for any
loss or damage to such property while it is in Seller’s possession or
control.
9. Taxes: Unless otherwise indicated on the face hereof, all prices and
charges are exclusive of excise, sales, use, property, occupational
or like taxes which may be imposed by any taxing authority upon the
manufacture, sale or delivery of the items sold hereunder. If any such
taxes must by paid by Seller of if Seller is liable for the collection of
such tax, the amount thereof shall be in addition to the amounts for
the items sold. Buyer agrees to pay all such taxes or to reimburse
Seller therefore upon receipt of its invoice. If Buyer claims exemption
from any sales, use or other tax imposed by any taxing authority, Buy-
er shall save Seller harmless from and against any such tax, together
with any interest or penalties thereon which may be assessed if the
items are held to be taxable.
10. Indemnity for Infringement of Intellectual Property Rights: Seller
shall have no liability for infringement of any patents, trademarks,
copyrights, trade dress, trade secrets or similar rights except as pro-
vided in this Part 10. Seller will defend and indemnify Buyer against
allegations of infringement of U.S. patents, U.S. trademarks, copy-
rights, trade dress and trade secrets (hereinafter ‘Intellectual Property
Rights’). Seller will defend at its expense and will pay the cost of any
settlement or damages awarded in an action brought against Buyer
based on an allegation that an item sold pursuant to this contract in-
fringes in the Intellectual Property Rights of a third party. Seller’s obli-
gation to defend and indemnify Buyer is contingent on Buyer notifying
Seller within ten (10) days after Buyer becomes aware of such allega-
tions of infringement, and Seller having sole control over the defense
of any allegations or actions including all negotiations for settlement
or compromise. If an item sold hereunder is subject to a claim that it
infringes the Intellectual Property Rights of a third party, Seller may,
at its sole expense and option, procure for Buyer the right to continue
using said item, replace or modify said item so as to make it nonin-
fringing, or offer to accept return of said item and return the purchase
price less a reasonable allowance for depreciation. Notwithstanding
the foregoing, Seller shall have no liability for claims of infringement
based on information provided by Buyer, or directed to items deliv-
ered hereunder for which the designs are specifed in whole or part by
Buyer, or infringements resulting from the modifcation, combination
or use in a system of any item sold hereunder. The foregoing provi-
sions of the Part 10 shall constitute Seller’s sole and exclusive liability
and Buyer’s sole and exclusive remedy for infringement of Intellectual
Property Rights.
If a claim is based on information provided by Buyer or if the design
for an item delivered hereunder is specified in whole or in part by
Buyer, Buyer shall defend and indemnify Seller for all costs, expenses
or judgments resulting from any claim that such item infringes any
patent, trademark, copyright, trade dress, trade secret or any similar
right.
11. Force Majeure: Seller does not assume the risk of and shall not
be liable for delay for failure to perform any of Seller’s obligations
by reason of circumstances beyond the reasonable control of Seller
(hereinafter ‘Events of Force Majeure’). Events of Force Majeure shall
include without limitation, accidents, acts of God, strikes or labor dis-
putes, acts, laws, rules or regulations of any government or govern-
ment agency, fres, foods, delays or failures in delivery of carriers or
suppliers, shortages of materials and any other cause beyond Seller’s
control.
12. Entire Agreement/Governing Law: The terms and conditions set
forth herein, together with any amendments, modifcations and any
different terms or conditions expressly accepted by Seller in writing,
shall constitute the entire Agreement concerning the items sold, and
there are no oral or other representations or agreements which per-
tain thereto. This Agreement shall be governed in all respects by the
law of the State of Ohio. No actions arising out of the sale of the items
sold hereunder or this Agreement may be brought by either party
more than two (2) years after the cause of action accrues.
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