These terms and conditions (this “Agreement”) are applicable to purchases of products, equipment or services (“Items”) on this site by you (“Buyer”) from Praxair Distribution, Inc. or its affiliates (each a“Seller”), except as the parties have otherwise expressly agreed in writing. Your placing an order through this web site is your consent to this Agreement, as modified from time to time; do not place an order if you do not wish to be bound by this Agreement.
Buyer agrees to review this Agreement from time to time and prior to placing an order, that each order will be subject to Seller's prices, terms and conditions as evidenced by the order (and other associated) screens displayed at the time such order is placed, including any deposit and periodic charge for equipment rental, and that Seller may, prospectively, change the terms and conditions of this Agreement at its sole discretion at any time. In addition, Buyer agrees to review all of the safety information provided for the Items ordered, including the Material Safety Data Sheets, the label and safety pamphlets.
2. ORDERS AND ACCEPTANCE
Buyer will submit orders for Items through this site. Orders will not be binding on Seller until Seller accepts them. Acceptance may be based on such considerations as availability, Buyer's confirmation of the particulars of the order, Buyer's written acceptance and compliance with this Agreement, or Seller's satisfaction with credit and payment terms. Buyer consents to Seller obtaining credit information to the extent reasonably necessary for these purposes, and to the disclosure of such information to the extent reasonably necessary to enforce this Agreement.
3. PRICES AND PAYMENT
Except as stated below, Buyer will pay Seller the Prices for Items delivered hereunder and any charges and surcharges related thereto, including those associated with regulatory and environmental compliance, greenhouse gas emission reductions, and obtaining power and transportation as displayed on the order screens, including any deposit and periodic payment for equipment rental, in accordance with the terms of this Agreement. In addition, Buyer will pay or reimburse Seller for any sales, property, use, excise or other duty, tax, charge or fee now or hereafter imposed by reason of any sale, delivery or furnishing of any Items hereunder. Seller will debit Buyer's card upon shipment of ordered Items, including any deposit and periodic payment for cylinder or equipment rental, or upon Buyer incurring any other charge, which for purposes of cylinder or equipment rentals will be monthly. Any deposit will be refunded upon Seller’s receipt of any covered Item at Seller’s point of shipment for that Item, but is subject to offset for damage (reasonable wear and tear excepted) and any other charges due under this Agreement. If Buyer fails to make timely payment in accordance with the terms of this Agreement, or its financial responsibility becomes otherwise impaired, or if Buyer is otherwise in default of its obligations hereunder, Seller reserves the right, among other remedies, to refuse to supply Items except for receipt of cash with order and/or payment in full of all outstanding charges, and/or assess and collect from Buyer a monthly late charge on any delinquent balance equal to the lesser of eighteen percent (18%) per annum or the maximum charge permitted by law, and/or enter Buyer’s premises and remove any Items located thereat with or without notice of legal process, and/or suspend Seller’s performance under this Agreement and/or terminate this Agreement. If any action is required to collect Buyer’s delinquent account, recover any Items or otherwise enforce the terms and conditions of this Agreement, Buyer will pay Seller all fees and costs of such collection, recovery or enforcement including, without limitation, reasonable legal fees and expenses. Until full payment has been received, Seller shall have a security interest in the Items and Buyer agrees to execute any document necessary or appropriate to perfect Seller’s security interest in the Items.
Items will be delivered F.O.B. Seller's point of shipment. The delivery date as displayed on the order screens is Seller's best estimate of when Items will be delivered to a carrier for delivery to Buyer and will not be deemed to represent a fixed or guaranteed delivery date. Title to and risk of loss of Items will pass to Buyer upon delivery to such carrier at point of shipment. Buyer agrees to pay all charges resulting from returns, changes and/or cancellations of orders for Items ordered hereunder.
5. INSTALLATION AND DELIVERY SITES
Installation of any Items sold or leased is not included unless specified on the order screens. If installation is included, and delays at the installation site require Seller to expend more time than is customarily allotted for such installation, Buyer will pay Seller at Seller's rates then in effect for such additional time.
6. SPECIFICATIONS AND WARRANTIES
Items delivered hereunder will meet the specifications displayed on the relevant order screen. Buyer may reject any Item which does not meet such specifications and no charge will be made for any Item so rejected. Since Buyer may obtain devices which have the capability of testing whether Items meet such specifications, no claim of any kind with respect to the conformance of any Item to the foregoing specifications, whether or not based on negligence, warranty, strict liability or any other theory of law, will be greater than the price of the quantity of nonconforming Item in respect to which such claim is made. The foregoing constitutes Buyer's exclusive remedy and Seller's sole obligation with respect to any such claim. Seller's liability for any claim of any kind hereunder, whether or not based on contract, tort (including negligence), strict liability, warranty, or any other grounds, will not exceed the purchase price of the Item or the portion of the purchase price attributable to any part or parts of the Item in respect to which such claim is made. Without limiting the generality of the foregoing, Seller will have no liability with respect to the results obtained by use of the Items, whether in terms of product condition, operating cost, general effectiveness, success or failure, or regardless of any statement made in any written proposal submitted by Seller. It is expressly understood that any technical advice furnished by Seller is given gratis and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer's risk. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS ARTICLE 6. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS PROVIDED IN THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7. PRICE CHANGES
Seller will have the right to adjust any periodic service or rental charges by giving Buyer not less than fifteen (15) days prior notice of the effective date of such adjustment. Posting of generally applicable price changes on Seller’s web site or e-mailing notification to any address with which Buyer has registered for on-line transactions will be deemed properly given notice.
Neither party hereto will be liable to the other for default or delay in the performance of any of its obligations hereunder (except any obligation to make payments when due) due to act of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, concerted acts of workers, national defense requirements, governmental law, ordinance, rule or regulation, whether valid or invalid, extraordinary equipment failure, inability to obtain electricity or other type of energy, raw or finished material or feedstock from normal sources of supply, labor, equipment or transportation, or any similar or different contingency beyond its reasonable control which would make performance commercially impracticable whether or not the contingency is of the same class as those enumerated above, it being expressly agreed that such enumeration is non-exclusive; provided, however, that neither business downturn nor economic conditions will qualify as a contingency within the meaning of this Article 8. In the event any such contingency affects only a part of Seller's capability to produce and/or deliver any Item, Seller will allocate production and/or deliveries among the requirements of all its customers and Seller's own requirements in a fair and reasonable manner. Buyer will pay or reimburse Seller for any additional costs incurred relating to the delivery of any Item to Buyer during a contingency.
9. HEALTH, SAFETY AND LIABILITY
Buyer acknowledges that there are hazards associated with Items, including the storage, use and handling thereof, and Buyer agrees that its employees, agents, contractors, and others concerned with Items are aware of such hazards. Buyer assumes all responsibility for the suitability and the results of using Items alone or in combination with other articles or substances and in any manufacturing, medical, or other process or procedures. Buyer will notify Seller of any hazards and safety procedures at Buyer's delivery sites and Buyer will notify Seller in advance of any anticipated construction, renovation, or change in operations in the area of any delivery site so that any hazards associated with same can be minimized. Buyer will be responsible for complying with all relevant reporting obligations under all applicable laws that result from the presence at Buyer's site of any Items supplied under this Agreement. Buyer will warn and protect its employees, contractors and others exposed to the hazards posed by Buyer's storage, use and handling of Items. Seller will provide documents to Buyer containing Seller's safety and health information pertaining to Items delivered hereunder, including Seller's Material Safety Data Sheet(s), and Buyer will incorporate such information into Buyer's safety program. Buyer hereby waives any right of subrogation that Buyer, any insurer of Buyer or any third party making a claim through Buyer, may have under this Agreement. Seller will not be liable to Buyer for any incidental, consequential, indirect, special or exemplary damages (including lost profits, sales or other similar damages) arising in connection with this Agreement without regard to the nature of the claim or the underlying theory or cause of action (whether in contract, tort, strict liability, equity or any other theory of law) on which such damages are based. Each party will indemnify and holds harmless the other party from and against any and all costs, fees (including reasonable legal fees and expenses), damages, liabilities and claims arising from the injury, illness or death of the indemnifying party's employees in any way related to any activities performed in connection with or Items supplied by Seller under this Agreement, whether or not such injury, illness, or death is claimed to have been caused by, resulted from, or was in any way connected with the negligence of the party to be indemnified.
10. DISPUTE RESOLUTION
In the event that a party to this Agreement has reasonable grounds to believe that the other party hereto has failed to fulfill any obligation hereunder, or that its expectation of receiving due performance under this Agreement may be impaired, such party will promptly notify the other party in writing of the substance of its belief. The party receiving such notice must respond in writing within thirty (30) days of receipt of such notice and either provide evidence of cure of the condition specified, or provide an explanation of why it believes that its performance is in accordance with the terms of this Agreement, and also specify three (3) dates, all of which must be within thirty (30) days from the date of its response, for a meeting to resolve the dispute. The claiming party will then select one (1) of the three (3) dates, and a dispute resolution meeting will be held. If the parties cannot, in good faith discussions, resolve their dispute, they will be free to pursue all remedies allowed under the law without prejudice.
This Agreement is limited strictly to the Items and transactions identified in the order screens and does not supersede or amend any prior agreement or agreements between Buyer and Seller covering the supply of Items to Buyer's delivery site(s). Buyer is not obligated under any other agreement to purchase any Item exclusively from a different supplier. The entire agreement for purchases on this site is contained herein and on the order screens. There are no other promises, representations or warranties affecting this Agreement, and any other or different terms or conditions in any purchase orders or other documents issued or accepted hereunder will be deemed null and void. No modification or waiver of this Agreement will bind either party unless expressly set forth in writing and signed and accepted by an authorized representative of the party sought to be bound by such writing. Any assignment of this Agreement by Buyer without the prior written consent of the Seller will be void. A waiver of any of the terms and conditions hereof will not be deemed a continuing waiver, but will apply solely to the instance to which the waiver is directed. The provisions of this Agreement are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. All notices to Seller will be in writing and deemed given on the date the notice is received. Any headings contained in this Agreement are used only as a matter of convenience and reference, and are in no way intended to define, limit, expand or describe the scope of this Agreement. All users of the Items must be at least 21 years of age.
12. LEGAL NOTICE FOR USE OF THE SITE
Praxair, Inc., its wholly-owned and affiliated companies ("Praxair") are providing the information either in or accessible through this site ("Materials") as a service to customers, vendors, suppliers, shareholders, and other interested parties for informational purposes only. Copies may be downloaded only subject to the provisions below. By either accessing this site or downloading Materials from it, User agrees to be bound by all the terms of this Agreement; should User not agree, do not access the site or download Materials from it.
"User" means an individual user whether or not issued a separate and discrete user ID by completing any registration process. While Praxair, Inc. and its wholly-owned and affiliated companies may have their own separate identities, we sometimes refer to Praxair companies in general by using "Praxair", "Our", "We", or "Us" (or where no compelling purpose is served by identifying any particular Praxair company).
Ownership of Materials
Praxair owns, reserves and retains all proprietary rights, including copyrights, to this site and its Materials; they are protected from copying or distribution under national and international copyright laws and treaties throughout the world.
License; Restrictions on Use
User is granted a non-exclusive, nontransferable, limited license to access, download and use Materials for non-commercial internal purposes only, subject to this Agreement. This is a license, not a transfer of title, and User may not, without Praxair's express prior written permission: i) modify the Materials or use them for any commercial purpose or any public display, sale or rental; ii) remove any copyright or other proprietary notices from the Materials; or iii) sell or transfer the Materials to another. User agrees to prevent any unauthorized copying, distribution or publication of Materials. Praxair may terminate this license at any time if User violates any term of this Agreement, upon which User will immediately destroy any Materials in its possession or control. User agrees to indemnify, defend and hold harmless Praxair from any damages, losses, costs or expenses which Praxair, its employees and authorized representatives may incur as a result of User's use or dissemination of any Material in violation of this Agreement.
Users who access a link on this site to any site operated by a third party do so entirely at their own risk and are responsible for compliance with all applicable laws. Praxair is not responsible for the content of any third party site and does not make any representations or warranties, express or implied, with respect to any link or content on linked sites and shall not be liable for any damages or injury arising therefrom. Users may not create any frames at any other sites pertaining to any of the content located at Praxair.com. This site has been specifically designed by Praxair and its unique appearance is protected by applicable laws. Users may not display any link to this site in such a manner so as to give the viewer the impression that Praxair is responsible for, authorizes, or sponsors the content on User's site or a third party's site, and may not link to this site from any site containing inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content or information that violates any applicable federal, state or local laws or any intellectual property, proprietary, privacy or publicity rights. Praxair reserves the right to terminate any link to Praxair.com or any portion of Praxair.com at any time.
User Uploaded Material
In the event that the capability for User to enter information and/or materials into the site pages is provided in the future, Praxair shall have the right to use any such materials which may be so entered in any of Praxair's print or electronic publications. User agrees to indemnify, defend and hold harmless Praxair from any damages, losses, costs or expenses which Praxair, its employees and authorized representatives may incur as a result of material which User may upload into this site.
Any forward-looking statements contained in this site concerning projected operating costs, operating profit, demand for industrial gases, net income after taxes and earnings per share involve risks and uncertainties, and are subject to change based on various factors, including the impact of changes in worldwide and national economies, achievement of cost reductions and efficiencies, changes in foreign currencies, changes in interest rates, the continued timely development and acceptance of new products and processes, the impact of competitive products and pricing, future mergers and acquisitions (including any related charges, transactions costs and operational risks), risks associated with foreign operations, litigation, the impact of tax and other legislation and regulation in the jurisdictions in which the company operates, and other risk factors listed from time to time in Praxair's SEC reports.
Other Limitations on Liability
Although we have tried to ensure that all Materials are complete and correct, Praxair does not guarantee or warranty their completeness or accuracy, or results to be obtained from using them or this site, for any purpose.
Materials and any products they describe are offered for technically qualified personnel at their discretion and risk, without warranty of any kind. Praxair does not assume responsibility for any injury or damage which may result directly or indirectly from the use of Materials or products they describe.
Praxair makes no warranties of merchantability or fitness for a particular purpose or use with respect to this site, Materials, or products described in them, which are provided on an "as is basis"; any use of them is at User's sole risk. Under no circumstances shall Praxair be liable to User or to anyone else for any indirect, consequential, special, or punitive or exemplary damages (including, but not limited to, loss of profits) arising from the use of this site, Materials or products described in them.
User is solely responsible for any communications lines and equipment and software utilized in connection with its access to this site. Trademark Information
The following are trademarks or registered trademarks of Praxair Technology, Inc. in the United States and/or other countries: PRAXAIR; the FLOWING AIRSTREAM design; AirLab; Banana Gas 32; Bantam; CoJet; Cryoscan; Cryochill; Dairyshield; Dcool; Driox; Dry Sweep; Extendapak; Fibertech 2000; Fibralume; Gigaplus; Grab 'N Go; HeliStar; HeliTec; HydroStar; HyLab; HYM; InnerClean; InnerClean-Plus; InSpec; I-SO; LaserStar; the MAKING OUR PLANET MORE PRODUCTIVE slogan; Medigas; Medifume; Mig Mix Gold; Mixflo; Nicool; Nitrofill; NitroLab; Oxyfume; Phoenix Research; Point One; Praxair Direct; ProStar; Rainbow; Sandjet; Star; Starblend; StarGold; Stargon; StarSolver; Tracker; Tribomet; Ultraclean; Ultralift; Ultraplus; Ultrapure; Ultrapurge; UltraSpec2000; ULTRATest; ULTRAtrax; UpTime; VersiGas; and XeScan. Praxair's trademarks and service marks may be used publicly with permission only from Praxair. Fair use of Praxair's trademarks and service marks in advertising or promotion of Praxair's products requires proper acknowledgement. All other trademarks, service marks and trade names are property of their respective owners.
User agrees that if a court of competent jurisdiction finds any part of this Agreement void or unenforceable, the rest of it should be enforced and the court should use its authority to amend it in order to fulfill the stated purposes of this Agreement to the fullest extent permitted by law.
This site is operated by Praxair from within the United States of America. Praxair makes no representation that the Materials are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so at their own risk and are responsible for compliance with any applicable local laws. User may not use or transfer the Materials in violation of US export or other law and regulations. Any claim relating to the Materials shall be governed by the Law of the State of Delaware.