The following Terms and Conditions (the “Terms”) apply to any transaction made with American Welding & Gas, Inc. (“AWG” and/or “Seller”) except to the extent superseded by an applicable written contract executed by Seller and Buyer. The Terms apply to any transaction for equipment, cylinders or services, which Buyer may purchase, rent or lease (collectively “Product[s]”) either in person, by telephone or by website purchase.
1. Compressed gas or cryogenic liquid cylinder products (“cylinders”) are leased, rented or loaned by Seller to Buyer, are NOT SOLD, and will be returned to Seller in good condition and repair after use. Unless otherwise agreed, Buyer will pay rental for all leased or rented cylinders at Seller’s standard published rate per Cylinder on cylinders listed on Buyer’s account each month. Buyer is responsible for damage to, and loss of, cylinders, fittings and caps from the time of receipt of the cylinders, fittings and caps until returned to Seller. On demand, Buyer will pay Seller for damaged or lost cylinders, fittings and caps at Seller’s standard published rates. Seller, in its reasonable discretion, will determine if cylinders, fittings and caps are damaged or lost. Notwithstanding any other provisions of the Terms, research and refunds associated with the determination of the number of cylinders on loan to Buyer shall be limited to 6 months from the date of inquiry by the Buyer.
2. Buyer will not permit Seller’s cylinders to be serviced or refilled by anyone but Seller.
3. If Seller is requested to do so, Seller may elect to remove or install Buyer’s equipment on cylinders. Buyer agrees that Seller will not have any liability for such removal or installation.
4. Return Products: Products purchased may not be returned without Seller’s written permission. A handling charge may be made on returned Products. Specially ordered or manufactured Products cannot be returned.
5. Government Regulations: Each party agrees to comply with all applicable federal, state, and local laws, rules and regulations with respect to its respective activities associated with Products.
6. Responsibility Procedures: Buyer agrees that all persons handling and using compressed gases for Buyer, flammable and non-flammable or any hazardous classified materials will make themselves thoroughly familiar with the regulations of the United States, Canada or any applicable regulatory entity involved in the regulation for the handling and usage of such gases. Information on the handling, storage and usage of such gases may be obtained from the U.S. Department of Transportation and from the Occupation Safety and Health Administration. (OSHA). Seller assumes no liability in connection therewith. Pertinent information is contained in Safety Data Sheets (SDS) provided to Buyer by AWG. Buyer acknowledges that it has familiarized itself with SDS for gas and chemical Products and that it has full knowledge of the hazards associated with the Product. Buyer hereby assumes all responsibility for educating its personnel, agents, contractors and Buyers of such hazards. Buyer agrees to follow safe handling, use, storage, and disposal practices, including those practices as Buyer's use of Products require. Buyer agrees to take appropriate action to avoid spills or other dangers to persons, property or the environment.
7. Taxes: Buyer will reimburse Seller for all federal, state, municipal or other sales or use taxes with respect to Products and excise taxes of any character upon or measured by the production or transportation of Products, which Seller may be required to pay.
8. WARRANTY AND LIMITATION OF LIABILITY: THE MANUFACTURER'S WARRANTY OF PRODUCTS, IF ANY, CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS. EXCEPT TO THE EXTENT SET FORTH ABOVE WITH RESPECT TO MANUFACTURER'S WARRANTY, THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, AND AWG EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT AND ACCURACY. IN NO EVENT WILL (A) AWG BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF AWG KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) AWG’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OR FEES PAID BY BUYER TO AWG, ITS SUBSIDIARIES OR ITS AFFILIATES FOR THE PRODUCTS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
9 Indemnification: Except to the extent a claim arises out of AWG’s negligence, fraud or willful misconduct, Buyer agrees to defend, indemnify and hold harmless AWG, its shareholders, affiliates and/or partners and its and their officers, directors, partners, shareholders agents, licensees and employees (cumulatively "AWG Indemnitees") from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise from or relate to any Products purchased from AWG, including, without limitation, for any causes of action arising from Buyer’s misuse of the Products.
10. Payment Terms: All invoices are payable net 30 days unless otherwise agreed in writing. In the event Buyer fails to make timely payments or its financial ability to pay becomes impaired as determined by Seller, Seller reserves the right, among other remedies in its discretion, to refuse to deliver Product except for receipt of cash with order and/or payment in full of all outstanding invoices. Seller may charge Buyer 1.5% per month (18% per annum) or the maximum allowed rate, whichever is less, on all past due balances. Buyer agrees to pay all of Seller’s collection costs, including reasonable attorney's fees
11. Miscellaneous: Buyer may not assign this Order without Seller’s written consent. The laws of the State of North Carolina will govern the Terms, without regard to its conflict of law provisions. If any provision of the Terms are held invalid, such invalidity will not affect other provisions or applications of the Terms. Any additional or different terms contained in any documents tendered by Buyer are objected to and will not be binding unless expressly agreed to by Seller in writing. Any claim or dispute arising out of or relating to any Product or these Terms shall be subject to the exclusive jurisdiction of state or federal courts located in Wake County, North Carolina, and Buyer hereby consents and submits to the personal jurisdiction of such courts.