State of California to cause cancer and birth defects or other reproductive harm.
Parker Hannifin Corporation – Chelsea Division
Offer of Sale
The items described in this document and other documents and descriptions provided by Parker Hannifin Corporation, its subsidiaries and its authorized distributors (“Seller”)
are hereby offered for sale at prices to be established by Seller. 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 item described in its document, when communicated to Seller verbally, or in writing, shall constitute acceptance of this offer. All goods, services
or work described will be referred to as “Products”.
11. Improper use and Indemnity. Buyer shall indemnify, defend, and hold Seller
harmless from any claim, liability, damages, lawsuits, and costs (including attorney
fees), whether for personal injury, property damage, patent, trademark or copyright
infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees,
or any other person, arising out of: (a) improper selection, improper application or
other misuse of Products purchased by Buyer from Seller; (b) any act or omission,
negligent or otherwise, of Buyer; (c) Seller’s use of patterns, plans, drawings, or
specifications furnished by Buyer to manufacture Product; or (d) Buyer’s failure to
comply with these terms and conditions. Seller shall not indemnify Buyer under any
circumstance except as otherwise provided.
12. Cancellations and Changes. Orders shall not be subject to cancellation or
change by Buyer for any reason, except with Seller’s written consent and upon terms
that will indemnify, defend and hold Seller harmless against all direct, incidental and
consequential loss or damage. Seller may change product features, specifications,
designs and availability with notice to Buyer.
13. Limitation on Assignment. Buyer may not assign its rights or obligations under
this agreement without the prior written consent of Seller.
14. Force Majeure. Seller does not assume the risk 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, strikes or labor disputes,
acts of any government or government agency, acts of nature, delays or failures in
delivery from carriers or suppliers, shortages of materials, or any other cause beyond
Seller’s reasonable control.
15. Waiver and Severability. Failure to enforce any provision of this agreement will
not waive that provision nor will any such failure prejudice Seller’s right to enforce
that provision in the future. Invalidation of any provision of this agreement by legisla-
tion or other rule of law shall not invalidate any other provision herein. The remaining
provisions of this agreement will remain in full force and effect.
16. Termination. Seller may terminate this agreement for any reason and at any time
by giving Buyer thirty (30) days written notice of termination. Seller may immediately
terminate this agreement, in writing, if Buyer: (a) commits a breach of any provision
of this agreement (b) appointments a trustee, receiver or custodian for all or any part
of Buyer’s property (c) files a petition for relief in bankruptcy on its own behalf, or by
a third party (d) makes an assignment for the benefit of creditors, or (e) dissolves or
liquidates all or a majority of its assets.
17. Governing Law. This agreement and the sale and delivery of all Products
hereunder shall be deemed to have taken place in and shall be governed and construed
in accordance with the laws of the State of Ohio, as applicable to contracts executed
and wholly performed therein and without regard to conflicts of laws principles. Buyer
irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts
of Cuyahoga County, Ohio with respect to any dispute, controversy or claim arising
out of or relating to this agreement.
18. 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 provided in this Section. Seller will defend and indemnify
Buyer against allegations of infringement of U.S. patents, U.S. trademarks, copyrights,
trade dress and trade secrets (“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 a Product sold pursuant to this
Agreement 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 settlement or compromise. If a Product 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 the Product, replace or
modify the Product so as to make it noninfringing, or offer to accept return of the
Product 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 Products 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
Product sold hereunder. The foregoing provisions of this Section shall constitute Seller’s
sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement
of Intellectual Property Rights.
19. Entire Agreement. This agreement contains the entire agreement between the
Buyer and Seller and constitutes the final, complete and exclusive expression of the
terms of sale. All prior or contemporaneous written or oral agreements or negotiations
with respect to the subject matter are herein merged.
20. Compliance with Law, U. K. Bribery Act and U.S. Foreign Corrupt Practices
Act. Buyer agrees to comply with all applicable laws and regulations, including both
those of the United Kingdom and the United States of America, and of the country
or countries of the Territory in which Buyer may operate, including without limitation
the U. K. Bribery Act, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.S.
Anti-Kickback Act (the “Anti-Kickback Act”), and agrees to indemnify and hold harm-
less Seller from the consequences of any violation of such provisions by Buyer, its
employees or agents. Buyer acknowledges that they are familiar with the provisions
of the U. K. Bribery Act, the FCPA and the Anti-Kickback Act, and certifies that Buyer
will adhere to the requirements thereof. In particular, Buyer represents and agrees
that Buyer shall not make any payment or give anything of value, directly or indirectly
to any governmental official, any foreign political party or official thereof, any candi-
date for foreign political office, or any commercial entity or person, for the purpose
of influencing such person to purchase products or otherwise benefit the business
of Seller. 07/14
1. Terms and Conditions. Seller’s willingness to offer Products, or accept an order
for Products, to or from Buyer is subject to these Terms and Conditions or any newer
version of the terms and conditions found on-line at www.parker.com/saleterms/. Seller
objects to any contrary or additional terms or conditions of Buyer’s order or any other
document issued by Buyer.
2. Price Adjustments; Payments. Prices stated on Seller’s quote or other
documentation offered by Seller are valid for 30 days, and do not include any sales,
use, or other taxes unless specifically stated. Unless otherwise specified by Seller,
all prices are F.C.A. Seller’s facility (INCOTERMS 2010). Payment is subject to credit
approval and is due 30 days from the date of invoice or such other term as required by
Seller’s Credit Department, after which Buyer shall pay interest on any unpaid invoices
at the rate of 1.5% per month or the maximum allowable rate under applicable law.
3. Delivery Dates; Title and Risk; Shipment. All delivery dates are approximate and
Seller shall not be responsible for any damages resulting from any delay. Regardless
of the manner of shipment, title to any products and risk of loss or damage shall pass
to Buyer upon placement of the products with the shipment carrier at Seller’s facility.
Unless otherwise stated, Seller may exercise its judgment in choosing the carrier and
means of delivery. No deferment of shipment at Buyers’ request beyond the respective
dates indicated will be made except on terms that will indemnify, defend and hold
Seller harmless against all loss and additional expense. Buyer shall be responsible for
any additional shipping charges incurred by Seller due to Buyer’s acts or omissions.
4. Warranty. Seller warrants that all products sold, other than the 590 Series, conform to
the applicable Parker Chelsea standard specification for the lesser period of 2 years (24
Months) from date of service or 2-1/2 years (30 Months) from date of build (as marked on the
product name plate). Seller warrants that the 590 Series will conform to the applicable
Seller standard specification for the lesser period of 2 years (24 Months) from date of
service or 2000 hours of usage. The prices charged for Seller’s products are based
upon the exclusive limited warranty stated above, and upon the following disclaimer:
DISCLAIMER OF WARRANTY: THIS WARRANTY COMPRISES THE SOLE AND EN-
TIRE WARRANTY PERTAINING TO PRODUCTS PROVIDED HEREUNDER. SELLER
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING
DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Claims; Commencement of Actions. Buyer shall promptly inspect all
Products upon delivery. No claims for shortages will be allowed unless reported to
the Seller within 10 days of delivery. No other claims against Seller will be allowed
unless asserted in writing within 30 days after delivery. Buyer shall notify Seller of
any alleged breach of warranty within 30 days after the date the defect is or should
have been discovered by Buyer. Any action based upon breach of this agreement
or upon any other claim arising out of this sale (other than an action by Seller for an
amount due on any invoice) must be commenced within 12 months from the date of
the breach without regard to the date breach is discovered.
6. LIMITATION OF LIABILITY. UPON NOTIFICATION, SELLER WILL, AT ITS OPTION,
REPAIR OR REPLACE A DEFECTIVE PRODUCT, OR REFUND THE PURCHASE
PRICE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR
AS THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE
OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY
CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S
WRITTEN CONSENT, EVEN IF SELLER HAS BEEN NEGLIGENT, WHETHER IN
CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER’S
LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE
PRICE OF THE PRODUCTS.
7. User Responsibility. The user, through its own analysis and testing, is solely
responsible for making the final selection of the system and Product and assuring that
all performance, endurance, maintenance, safety and warning requirements of the
application are met. The user must analyze all aspects of the application and
follow applicable industry standards and Product information. If Seller provides
Product or system options, the user is responsible for determining that such data
and specifications are suitable and sufficient for all applications and reasonably
foreseeable uses of the Products or systems.
8. Loss to 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, will be considered obsolete and may be destroyed by
Seller after two consecutive years have elapsed without Buyer ordering the items
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. Special Tooling. A tooling charge may be imposed for any special tooling,
including without limitation, dies, fixtures, molds and patterns, acquired to
manufacture Products. 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 apparatus belonging to Seller which is utilized in the manufacture of
the Products, even if such apparatus 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.
10. Buyer’s Obligation; Rights of Seller. To secure payment of all sums
due or otherwise, Seller shall retain a security interest in the goods delivered and this
agreement shall be deemed a Security Agreement under the Uniform Commercial
Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all
documents Seller deems necessary to perfect its security interest.
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