Except as provided in a separate written agreement, such as a Product Sale Agreement, negotiated by the parties and executed by authorized representatives of Seller and Buyer, each sale of Products or Services by Seller shall be governed by these Terms and Conditions of Sale ("Terms"). "Seller" refers to Airgas USA, LLC or one of its Affiliates, the name of which will be reflected on the invoice for the Products or Services purchased by Buyer. "Affiliate" refers to an entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with Airgas USA, LLC. "Buyer" refers to the purchaser of Products or Services from Seller. "Product(s)" refers to any goods or other items of tangible personal property sold by Seller to Buyer. "Services" refers to any service provided by Seller. Seller’s acceptance of any order is expressly subject to Buyer's assent to each and all of the terms and conditions set forth herein. These Terms represent the entire agreement with respect to the sale of Products and Services and, except as provided in a separate written agreement as set forth above or in a separate document that expressly incorporates these Terms, supersede all prior or contemporaneous written/oral communications between the parties and information in any Seller literature, website or catalog, and override and exclude any other terms and conditions stipulated, incorporated or referred to by Buyer, including without limitation any Buyer purchase order, and any prior course of dealing between the parties.
AGREEMENT. Buyer shall not purchase any Products or Services on Seller’s website (the "Site") unless Buyer is an authorized, registered user of the Site. By purchasing any Products or Services on the Site, Buyer accepts, without limitation or qualification, these Terms governing such purchase. If Buyer does not agree and accept, without limitation or qualification, these Terms, Buyer may not purchase from the Site. If these Terms are construed to be an offer, this offer expressly limits acceptance by Buyer to these Terms and notice of objection to any different or additional terms is hereby given. Seller reserves the right to modify and update these Terms at any time by e-mail, changing these Terms on the Site or other commercially reasonable methods, and Buyer should carefully review these Terms before each purchase. These Terms, as modified, shall apply to all purchases of Products and/or Services on or after such update.
TITLE TO PRODUCTS. Until Buyer pays Seller in full, title to the Products shall remain in Seller's name and Seller shall have a purchase money security interest in the Products. If Buyer shall default in any payments, Seller shall have all the rights as holder of such title or as such secured party under the Uniform Commercial Code and/or any other law then in force; and Seller may, in addition, retain as rental any payments received by Seller on account of the purchase price of the Products, whether Buyer's default shall have occurred before or after delivery. If Seller repossesses the Products, Seller may resell the Products after ten (10) days' prior written notice to Buyer. Seller may file one or more financing statements to perfect its security interests. If necessary, Buyer shall execute such financing statements upon request. Buyer shall not cover, modify or remove any identification or other indicia of Seller’s ownership on any rental equipment. Title to all rental equipment shall remain in Seller's name.
CYLINDERS. Unless otherwise specified, cylinders, fittings and caps covered by these Terms are rented by Seller to Buyer at Seller’s current daily rates, beginning with the date of delivery. Rental charges are assessed as of the last day of each month or at the start of each annual lease period, as applicable. Seller shall monitor cylinder deliveries and returns hereunder. Each invoice for rental fees will show a number of cylinders outstanding as of the date of such invoice. The balance shown on any such invoice shall be deemed correct and conclusive unless Buyer submits a notice of dispute in writing to Seller within ninety-five days after the date of such invoice. Buyer shall continue to pay rental fees on all cylinders until (i) such cylinders have been returned to Seller or (ii) payment has been made with respect to loss or damage thereto as set forth below. Buyer shall keep all cylinders in secure locations. Cylinders shall remain the property of Seller. Each refillable cylinder may be subject to a cylinder deposit fee, as established by Seller from time to time. Seller will refund the deposit fee when Buyer returns the cylinder, unless the cylinder's condition is deemed to be unfit for reuse, as determined by Seller, which determination shall be irrefutable ninety-five days after the cylinder was returned to Seller. Buyer shall not permit cylinders or other storage containers furnished hereunder to be filled with any product not furnished by Seller and such cylinders shall not be used by Buyer for purposes other than the storage of gas products purchased from Seller or the return and reclamation of certain gases (e.g., refrigerants). Buyer shall return, in a good and non-contaminated condition, all cylinders, with valves closed, complete with caps and fittings and shall pay Seller the replacement value of any contaminated, lost or damaged cylinders, caps or fittings. Payment by Buyer of charges for damaged, lost or destroyed cylinders shall not give any ownership interest in the cylinders to Buyer. BUYER ASSUMES ALL RISK AND LIABILITY ARISING OUT OF THE PRESENCE, STORAGE, TRANSPORT OR USE OF ANY LOST CYLINDERS.
ONLINE PRICING. Online pricing may not be available at all Airgas retail branch locations. Online pricing may not be valid for Buyers located outside of the contiguous 48 United States, including for Buyers located in Alaska, Hawaii, Guam, American Samoa, Puerto Rico or the U.S. Virgin Islands.
TERMS OF PAYMENT. Unless otherwise specified, Buyer shall make payment in full by the thirtieth day following the date of invoice. In the event Buyer fails to make any payment when and as due, Seller may, at Seller’s option, exercise any one or more of the following (in addition to any other remedies available to Seller): (a) cease all Product deliveries; (b) require Buyer, as a condition of receiving deliveries, to prepay for such deliveries and pay past due amounts as specified by Seller; (c) collect from Buyer on any delinquent balance a charge at the rate of one and one-half percent per month or, if less, the maximum rate permitted by law; and/or (d) remove any cylinders and/or other containers provided by Seller. If Buyer requests payment terms other than cash or cash on delivery (COD), Buyer represents that the purchases are made for business, commercial or agricultural purposes and not for personal, household, or family use. If Buyer has received credit approval from Seller, continued open account credit is subject to Seller's assessment of Buyer's financial condition and ability to pay. Buyer represents and warrants that Buyer is and shall remain solvent until Seller receives payment in full for the Products and/or Services. If Seller employs any collection agency or attorney to collect any amount due Seller, and/or to repossess any Products, Buyer shall pay all collection fees, attorneys' fees, and court costs, in addition to the amount otherwise unpaid.
SURCHARGES. Following notice from Seller, Buyer shall pay to Seller a surcharge in the event of any extraordinary, emergency or other unanticipated increases in the cost of manufacturing, supplying or distributing Products hereunder.
DELIVERY. (a) Delivery method for all orders shall be as stated on Seller’s delivery ticket and/or invoice and, if not stated therein, shall be EXW (Incoterms 2020) Seller's branch or warehouse, or as otherwise determined by Seller. (b) Delivery date(s) are determined from the date of each order of Products and are estimates of approximate dates of delivery, not a guarantee of a particular day of delivery. If Buyer delays acceptance of the Products when delivered or ready for shipment, Buyer shall forthwith pay to Seller the full price of the Products and shall also pay Seller such warehousing and pier charges and other expenses as Seller may incur as a result of Buyer's delay. (c) Seller reserves the right to decline or cancel any order at any time prior to shipment. (d) Seller or its representatives shall usually make deliveries of Product(s) on regular business days between the hours of 8:00 a.m. and 5:00 p.m. or at other hours upon agreement of the parties. Buyer shall pay all additional expenses incurred by Seller as a result of deliveries at other hours or any other special delivery. (e) Deliveries made during a strike or other labor disturbance affecting Buyer shall be at Seller’s sole option. If Seller does deliver during a strike or labor disturbance, then, notwithstanding anything to the contrary contained in these Terms, Buyer assumes the entire risk and agrees to indemnify Seller from and against all costs, damages and losses arising out of any such delivery. (f) Seller may refuse to deliver Product(s) to any of Buyer's locations if Seller reasonably believes that such location is unsafe or violates any applicable law or regulation, and Seller shall not be liable for such refusal to deliver. (g) Deliveries of Product shall be measured by Seller using the method typically used by Seller for the type of delivery made.
RETURN OF PRODUCTS. No Products shall be returned to Seller without Seller's written authorization. Buyer shall pay a fifteen percent (15%) restocking charge on all Products returned to Seller, except for returns provided for under Section 11 hereof. Notwithstanding the foregoing, certain Products, including nitrile gloves, disposable clothing, and disposable respirators are sold on a final, non-cancelable, non-returnable, non-refundable basis.
WARRANTY. Seller warrants that, at the time of delivery, all gas Products furnished hereunder will comply with Compressed Gas Association (CGA) guidelines. Any other Products sold by Seller will conform to Seller’s or manufacturer’s standard specifications. Seller makes no warranty with respect to non-gas Products manufactured by others, but will, on request, to the extent permitted, pass on to Buyer any applicable manufacturer’s warranty. Seller warrants that the Services shall be performed in a good and workmanlike manner. SELLER SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE.
TECHNICAL ADVICE. Unless otherwise expressly agreed: (i) any technical advice provided by Seller with respect to the use of Products or Services furnished to Buyer shall be without charge; (ii) Buyer shall have sole responsibility for selection and specification of the Products or Services appropriate for the end use of such Products or Services; and (iii) SELLER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ASSUMES NO OBLIGATION OR LIABILITY FOR ANY TECHNICAL ADVICE, OR FOR ANY RESULTS OCCURRING AS A RESULT OF THE APPLICATION OF SUCH ADVICE, AND ALL SUCH ADVICE IF GIVEN AND ACCEPTED IS AT BUYER’S SOLE RISK. Examples of such complimentary technical advice include, without limitation, brochures, literature, website or catalog descriptions, SDSs, free on-line training resources, and similar information materials.
REMEDIES; LIMITATION OF LIABILITY. NEITHER SELLER NOR SELLER’S SUPPLIERS OF PRODUCTS (“SELLER’S SUPPLIERS”) SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES. SELLER’S SOLE LIABILITY AND BUYER’S SOLE REMEDY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM PRODUCTS, DELIVERY OF NON-CONFORMING PRODUCTS, SELLER’S FAILURE TO DELIVER SUCH PRODUCTS, INSTALLATION OR MAINTENANCE OF EQUIPMENT, EQUIPMENT MANUFACTURED BY SELLER, OR SERVICES PROVIDED BY SELLER SHALL BE LIMITED TO, AT SELLER’S OPTION, THE REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF THE PRODUCT OR SERVICE IN QUESTION. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, AND SHALL APPLY EVEN WHERE SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART, BY THE NEGLIGENCE, GROSS NEGLIGENCE OR ACTS AND OMISSIONS OF THE PARTY CLAIMING DAMAGES OR THE PARTY FROM WHOM DAMAGES ARE SOUGHT. ALL CLAIMS BY BUYER HAVING ANYTHING TO DO WITH THE SUBJECT MATTER OF THESE TERMS SHALL BE MADE IN WRITING WITHIN NINETY FIVE DAYS AFTER THE EVENT GIVING RISE TO SUCH CLAIM AND FAILURE OF BUYER TO GIVE SUCH NOTICE SHALL CONSTITUTE A COMPLETE WAIVER BY BUYER OF ANY SUCH CLAIMS AND DEFENSE FOR SELLER AGAINST ANY SUCH CLAIMS. AS USED IN THIS SECTION, THE TERM “BUYER” AND “SELLER” SHALL INCLUDE NOT ONLY THE PARTY TO THESE TERMS BUT ALSO ALL OF ITS AFFILIATES. THE PROVISIONS GOVERNING REMEDIES, LIMITATIONS OF LIABILITY AND INDEMNITY SET FORTH IN THESE TERMS SHALL SURVIVE EXPIRATION, TERMINATION, OR CANCELLATION OF THESE TERMS.
REPRESENTATIONS OF BUYER. Products are sold on the condition that they be handled, used and disposed of in conformance with recognized industry and professional standards including those related to the protection of human health and the environment. Buyer represents, warrants and covenants that (i) Buyer will use the Products and/or Services in accordance with all applicable laws and regulations and in conformance with recognized industry and professional standards; (ii) Buyer has used its own independent skill and expertise in connection with the selection and use of the Products; (iii) Buyer possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the Products; (iv) Buyer will ensure that the Products are safe for the intended use and that the Products are handled in a safe and professional manner; and (v) Buyer is a registered user of the Site and an authorized purchaser of the Products and/or Services. BUYER ACKNOWLEDGES THAT THERE MAY BE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS, THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF BUYER TO WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS. BUYER SHALL HAVE THE SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF ANY OF SELLER’S PRODUCTS FOR THE USE CONTEMPLATED BY BUYER. AFTER DELIVERY OF PRODUCTS TO BUYER PURSUANT TO THESE TERMS, BUYER ASSUMES ALL RISK AND LIABILITY ARISING OUT OF THE PRESENCE, STORAGE, TRANSPORT OR USE OF THE PRODUCTS.
INDEMNIFICATION BY BUYER. Buyer’s use of the Products and/or Services are at Buyer’s own risk, and Buyer shall defend, indemnify and hold harmless Seller from all liability and costs (including court costs and attorneys’ fees) resulting from claims, demands or actions brought against Seller by anyone (including without limitation any injuries or property damage) caused directly or indirectly by (i) Buyer’s breach of these Terms; (ii) Buyer’s negligence or willful misconduct related to any Products or Services; or (iii) Buyer’s violation of any applicable law related to any Products or Services.
EXCUSE OF PERFORMANCE: Seller shall not be liable for failure to perform if prevented by circumstances beyond its reasonable control.
ALLOCATION. If sufficient Product is not available from Seller’s normal source of supply for any reason, Seller may allocate Product among its own requirements and its customers. Seller may obtain additional Product from other sources, provided Buyer shall pay all additional costs associated with such Product. Allocation in regard to this Section will completely satisfy and discharge Seller’s supply obligations and Seller will, therefore, not be deemed to be in breach of such obligations.
TAXES. Prices are exclusive of any amount of federal, state and/or local excise, sales, use, property, retailer’s occupation, gross receipts or similar taxes which may be imposed in connection with a transaction. Buyer shall pay all such taxes, except Seller’s income tax, either directly to the relevant taxing authority or as collected by Seller. In the event that Buyer claims exemption, full or partial, from such taxes, a properly completed exemption certificate with a list of the applicable exempt purchases, which will be acceptable to the appropriate taxing authorities, must be provided. Buyer will provide the applicable exemption certificate for each Buyer location. Should such certificate be found invalid, Buyer agrees to bear the burden of any interest and penalties assessed.
COMPLIANCE/SDS. Buyer shall instruct its employees and agents to comply, and at all times Buyer shall comply with all applicable federal, state and local statures, regulations and laws regarding anti-corruption/bribery and the safe handling, transportation, purchase and use of the Products, including without limitation all relevant reporting obligations under the Emergency Planning and Community Right-To-Know Act and the Occupational Safety and Health Act, and applicable regulations thereunder, and the Foreign Corrupt Practices Act of 1977, as well as any applicable licenses and consents required by such statutes, regulations, laws and regulations, which licenses and consents shall be obtained by Buyer. Buyer acknowledges and agrees that Seller has provided Buyer with access to all relevant Safety Data Sheets (SDS). Additional SDSs and copies are available: (i) at the local Airgas branch; (ii) by calling 919-368-8518; or (iii) by logging on to www.airgas.com. Buyer understands that the Products must not be used without first consulting the SDS. Buyer will familiarize itself with and instruct its employees regarding all information and precautions disclosed in the safety and health information, including without limitation any SDS, transmitted to Buyer by Seller or otherwise available to Buyer from Seller at any other time. Seller complies with its Anti-Corruption Code of Conduct available to Buyer on www.airgas.com.
HUMAN AND ANIMAL SAMPLE STORAGE OBLIGATIONS. In the event that Buyer is utilizing a cryogenic vessel or freezer in any capacity related to human and/or animal samples, the following obligations shall apply:
Buyer shall be consistent with good industry practices and at its expense be responsible for the following:
shall be responsible for monitoring and managing its requirements for all of its industrial and medical gases, and all other Products supplied by Seller at all times irrespective of any Services provided by Seller, including without limitation ordering adequate amounts of Product from gas suppliers including from Seller, determining replacement frequency of cylinders or dewars of Products; and monitoring and determining levels of Product required for cryogenic vessel/freezer applications.
Providing capable coverage of personnel and resources during an emergency or at any other time. Seller shall not be liable for any result of Buyer’s failure to perform such tasks.
Buyer is fully responsible for taking any action required in response to any process alarms which may be related to the cryogenic freezers or Products supplied by Seller. Seller will not respond to any such alarms, even if made aware of same. Buyer is fully responsible for taking any action required after an alarm occurs, including without limitation, alarms from cryogenic vessels.
As to Buyer equipment, Buyer shall operate, manage and monitor (e.g., maintenance, alarms etc.) all such Buyer equipment including, without limitation, gas delivery manifolds and cryogenic vessels without the assistance of Seller and Buyer shall be fully responsible for any and all activity, functionality or other matters associated with such equipment at any time.
Be fully responsible for the storage and/or preservation of any material including without limitation, tissue, embryos, and organs stored in Buyer equipment including, without limitation, cryogenic vessels.
Maintaining standard cylinder manifolds and related equipment in accordance with good industrial practice.
Keeping all delivery, storage and use areas neat, safe and easily accessible.
Complying with all legal and regulatory requirements, including environmental laws relating to the gases, and Products supplied by Seller.
Supplying cylinder/dewar carrying carts and storage racks conforming to Seller’s specifications, if requested by Seller;
Diligently cooperating and communicating with Seller.
BUYER HEREBY REPRESENTS AND WARRANTS THAT IT WILL NOT PURCHASE NOR USE THE PRODUCTS FOR THE PURPOSE OF FREEZING OR STORING HUMAN AND/OR ANIMAL SAMPLES THAT ARE OWNED BY A THIRD PARTY OR WHICH A THIRD PARTY HAS OWNERSHIP RIGHTS. IN THE EVENT THAT BUYER BREACHES THIS REPRESENTATION AND/OR WARRANTY, BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AGAINST ANY CLAIMS, LOSSES OR LIABILITIES ARISING FROM SUCH BREACH.
ASSIGNMENT. Buyer shall not assign these Terms, in whole or in part, without Seller’s prior written consent, and any prohibited assignment shall be null and void. These Terms shall inure to the benefit of Seller and Buyer and their respective successors and assigns.
ITEMIZED CHARGES. The total amount due from Buyer may include various itemized charges, including: charges for the handling of hazardous materials and for compliance with laws and regulations concerning hazardous materials; charges for handling, delivery, and shipping; and/or charges for energy or fuel. None of the charges represents a tax or fee paid to or imposed by any governmental authority and all of the charges are retained by Seller. Seller has not specifically quantified the relationship between the charges and the actual costs associated with the charges, which can vary by product, service, time and place, among other things.
SEVERABILITY. If any provision of these Terms is or becomes invalid under any applicable law, then such provision shall be deemed reformed or deleted, but only to the extent necessary to comply with any such applicable law, and the remaining provisions of these Terms shall remain in full force and effect.
ATTORNEYS’ FEE. In the event any action or legal proceeding is brought by Seller to enforce, interpret, protect or establish any provision of these Terms or right or remedy, Seller shall be entitled to recover as part of such action or proceeding, in addition to any other relief granted, reasonable attorneys’ fees and costs.
GOVERNING LAW; DISPUTE RESOLUTION; CLASS ACTION AND TRIAL BY JURY WAIVER. These Terms shall be governed by and construed in accordance with the substantive law of the State of Delaware, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Products and The Uniform Computer Information Transactions Act will not, for any purpose, govern or apply to these Terms or any transactions, performance or disputes hereunder. Prior to either party filing a lawsuit, except to prevent the running of any applicable statute of limitations, all disputes and claims regarding these Terms shall be submitted to non-binding mediation. If the parties cannot agree on a mediator, one will be selected pursuant to American Arbitration Association rules. BOTH PARTIES HERETO HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY HERETO OR TO PRODUCT OR SERVICES SUPPLIED HEREUNDER. ANY CLAIM MUST BE BROUGHT IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). THE PARTIES EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM.
AMENDMENT; BENEFICIARIES. These Terms may be amended or supplemented only in a writing executed by authorized representatives of Buyer and Seller. No person other than an authorized representative of Seller has any authority to agree on Seller’s behalf to any terms not set forth herein. As a part of the consideration for these Terms, the applicable provisions of Section 11 (Remedies and Limitation of Liability) shall extend to and be enforceable by and for the benefit of Seller’s Suppliers.
SALE PRICE TERMS AND CONDITIONS. Any price accompanied by a “Valid thru” date on a given product information page is deemed to be a “Sale Price”. Sale Prices are only valid on qualifying items contained within orders submitted via Airgas.com by11:59pm ET on the Valid thru date for the item; Sale Prices will not be honored in any other Airgas venue or on orders processed via any other channel. Sale Prices on items added to your shopping cart but not submitted before 11:59pm ET on the Valid thru date will not be honored, and your order will be processed at the effective price at the time your order is submitted. If you return any item purchased at a Sale Price, only the Sale Price of the item will be refunded. Shipping and handling charges will not be refunded. Sale Prices are only good while supplies last. Void where prohibited. If you violate any of the Airgas Terms and Conditions, the Sale Price will be invalid, and you will be charged the effective price at the time your order is submitted. Airgas reserves the right to cancel a sale price at any time.
RESALE AND TRANSFILLING. All gas Products shall be for Buyer’s own use, and not for resale. Buyer shall not transfill gas Products from any gas or liquid storage vessels or other equipment or cylinders provided by Seller into other containers.
WAIVERS. The waiver by Seller of any of its rights under these Terms shall not be construed as constituting a precedent. Buyer shall not require waiver or release of any personal right or execution of any document that conflicts with these Terms or provides for additional obligations of the parties from Seller’s employees, subcontractors or representatives in connection with Seller’s entry onto the premises of Buyer and Buyer agrees that no such release, waiver or document shall be binding, if executed by Seller’s employee, subcontractor or representative.