Page 82 - D30003

82 Parker Hannifin Corporation
Instrumentation Products Division
Huntsville, AL USA
http://www.parker.com/ipdus
1.Terms and Conditions of Sale: All descriptions, quotations, proposals,
offers, acknowledgments, acceptances and sales of Seller’s products are
subject to and shall be governed exclusively by the terms and conditions
stated herein. Buyer’s acceptance of any offer to sell is limited to these terms
and conditions. Any terms or 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 additional, 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 conditions 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 delivery of the items purchased hereunder. Amounts not timely paid
shall bear interest at the maximum rate permitted by law for each month
or portion thereof that the Buyer is late in making payment. Any claims
by Buyer for omissions or shortages in a shipment shall be waived unless
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 delivery, how-
ever, 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 items sold hereunder shall be free
from defects in material or workmanship. THISWARRANTY COMPRISES
THE SOLE AND ENTIRE WARRANTY PERTAINING TO ITEMS
PROVIDED HEREUNDER. SELLER MAKES NO OTHER WARRANTY,
GUARANTEE, OR REPRESENTATION OF ANY KIND WHATSOEVER.
ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO,
MERCHANTABILITY AND FITNESS FOR PURPOSE, WHETHER
EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE
USAGE, OR COURSE OF DEALING ARE HEREBY DISCLAIMED.
NOTWITHSTANDING THE FOREGOING, THERE ARE NOWARRAN-
TIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR
PARTIALLY, TO BUYER’S DESIGNS OR SPECIFICATIONS.
5. Limitation Of Remedy: SELLER’S LIABILITY ARISING FROM OR IN
ANYWAY CONNECTEDWITHTHE ITEMS SOLD ORTHIS CONTRACT
SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT
OF THE ITEMS SOLD, AT SELLER’S SOLE OPTION. IN NO EVENT
SHALLSELLERBELIABLEFORANY INCIDENTAL,CONSEQUENTIAL
OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER,
INCLUDING BUT NOT LIMITED TO LOST PROFITS ARISING FROM
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ITEMS
SOLD HEREUNDER,WHETHER ALLEGEDTO ARISE FROM BREACH
OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR IN TORT,
INCLUDING WITHOUT LIMITATION, NEGLIGENCE, FAILURE TO
WARN OR STRICT LIABILITY.
6. Changes, Reschedules and Cancellations: Buyer may request to
modify the designs or specifications 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 modification 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 modification or cancellation 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, fixtures, molds and patterns,
acquired to manufacture items sold pursuant to this contract. Such special
tooling shall be and remain Seller’s property notwithstanding payment of
any charges by Buyer. In no event will Buyer acquire any interest in appa-
ratus belonging to Seller which is utilized in the manufacture of the items
sold hereunder, even if such apparatus has been specially converted or
adapted for such manufacture and not withstanding 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,
confidential 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 manufactured 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 manufac-
ture, sale or delivery of the items sold hereunder. If any such taxes must be
paid by Seller or 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, Buyer 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, copy-
rights, trade dress, trade secrets or similar rights except as provided in
this Part 10. Seller will defend and indemnify Buyer against allegations of
infringement of U.S. Patents, U.S. Trademarks, copyrights, 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 infringes the Intellectual Property Rights of a
third party. Seller’s obligation to defend and indemnify Buyer is contingent
on Buyer notifying Seller within ten (10) days after Buyer becomes aware
of such allegations of infringement, and Seller having sole control over the
defense of any allegations or actions including all negotiations for settle-
ment 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 noninfringing, or offer
to accept return of said item and return the purchase price less a reason-
able 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 delivered hereunder for which the designs
are specified in whole or part by Buyer, or infringements resulting from the
modification, combination or use in a system of any item sold hereunder.
The foregoing provisions of this 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 or 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 disputes, acts, laws, rules
or regulations of any government or government agency, fires, floods,
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, modifications and any dif-
ferent 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 pertain 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.
11/98-P
The items described in this document and other documents or descriptions provided by Parker Hannifin Corporation, its subsidiaries and its autho-
rized distributors are hereby offered for sale at prices to be established by Parker Hannifin Corporation, its subsidiaries and its authorized distributors.
This offer and its acceptance by any customer ("Buyer") shall be governed by all of the following Terms and Conditions. Buyer’s order for any such
items, when communicated to Parker Hannifin Corporation, its subsidiary or an authorized distributor ("Seller") verbally or in writing, shall constitute
acceptance of this offer.
D30003 82 5/12/05