Bulletin 100-50-9.1 – Page 145
OFFER OF SALE
The goods, services or work (referred to as the “Products”) offered by Parker-Hannifin Corporation, its subsidiaries, groups, divisions, and authorized distributors (“Seller”)
are offered for sale at prices indicated in the offer, or as may be established by Seller. The offer to sell the Products and acceptance of Seller’s offer by any customer (“Buyer”) is
contingent upon, and will be governed by all of the terms and conditions contained in this Offer of Sale. Buyer’s order for any Products specified in Buyer’s purchase document or
Seller’s offer, proposal or quote (“Quote”) attached to the purchase order, when communicated to Seller verbally, or in writing, shall constitute acceptance of this offer.
1. Terms and Conditions. Seller’s willingness to
offer Products for sale or accept an order for Products
is subject to the terms and conditions contained in
this Offer of Sale or any newer version of the same,
published by Seller electronically at www.parker.com/
saleterms/. Seller objects to any contrary or additional
terms or conditions of Buyer’s order or any other
document or other communication issued by Buyer.
2. Price; Payment. Prices stated on Seller’s Quote are
valid for thirty (30) days, except as explicitly otherwise
stated therein, and do not include any sales, use, or
other taxes or duties unless specifically stated. Seller
reserves the right to modify prices to adjust for any
raw material price fluctuations. Unless otherwise
specified by Seller, all prices are F.C.A. Seller’s facility
(INCOTERMS 2010). Payment is subject to credit
approval and payment for all purchases is due thirty
(30) days from the date of invoice (or such date as may
be specified by Seller’s Credit Department). Unpaid
invoices beyond the specified payment date incur
interest at the rate of 1.5% per month or the maximum
allowable rate under applicable law.
3. Shipment; Delivery; Title and Risk of Loss.
All delivery dates are approximate. Seller is not
responsible for damages resulting from any delay.
Regardless of the manner of shipment, delivery occurs
and title and risk of loss or damage 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 the Products sold
hereunder shall be free from defects in material or
workmanship for a period of twelve (12) months from
the date of delivery or 2,000 hours of normal use,
whichever occurs first. All prices are based upon
the exclusive limited warranty stated above, and
upon the following disclaimer: DISCLAIMER OF
WARRANTY: THIS WARRANTY IS THE SOLE AND
ENTIRE WARRANTY PERTAINING TO PRODUCTS
PROVIDED. 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 receipt. No claims
for shortages will be allowed unless reported to the
Seller within ten (10) days of delivery. No other claims
against Seller will be allowed unless asserted in writing
within thirty (30) days after delivery. Buyer shall notify
Seller of any alleged breach of warranty within thirty
(30) days after the date the defect is or should have
been discovered by Buyer. Any claim or action against
Seller based upon breach of contract or any other
theory, including tort, negligence, or otherwise must be
commenced within twelve (12) months from the date
of the alleged breach or other alleged event, without
regard to the date of discovery.
6. LIMITATION OF LIABILITY. IN THE EVENT
OF A BREACH OF WARRANTY, SELLER WILL, AT
ITS OPTION, REPAIR OR REPLACE A DEFECTIVE
PRODUCT, OR REFUND THE PURCHASE PRICE
WITHIN A REASONABLE PERIOD OF TIME. IN NO
EVENT IS SELLER LIABLE 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, WHETHER BASED 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
based upon data or specifications provided by the
user, 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 (2)
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 has
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 retains a
security interest in all Products delivered to Buyer and
this agreement is deemed to be 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.
11. Improper Use and Indemnity. Buyer shall
indemnify, defend, and hold Seller harmless from any
losses, claims, liabilities, damages, lawsuits, judgments
and costs (including attorney fees and defense costs),
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,
application, design, specification 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 Products; 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. Buyer may not
cancel or modify or cancel any order 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.
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 is not liable for delay or failure to perform
any of Seller’s obligations by reason of events
or circumstances beyond its reasonable control
(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 invalidate 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 legislation 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 prior written notice. Seller may immediately
terminate this agreement, in writing, if Buyer: (a)
breaches any provision of this agreement (b) appoints
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 one if filed by a
third party (d) makes an assignment for the benefit of
creditors; or (e) dissolves its business or liquidates all or
a majority of its assets.
17. Governing Law. This agreement and the sale and
delivery of all Products are 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 is not liable 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 refund the purchase
price less a reasonable allowance for depreciation.
Notwithstanding the foregoing, Seller is not liable 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
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. The terms contained herein may
not be modified unless in writing and signed by an
authorized representative of Seller.
20. Compliance with Laws. Buyer agrees to comply
with all applicable laws, regulations, and industry and
professional standards of care, including those of
the United Kingdom, the United States of America,
and the country or countries in which Buyer may
operate, including without limitation the U. K. Bribery
Act, the U.S. Foreign Corrupt Practices Act (“FCPA”),
the U.S. Anti-Kickback Act (“Anti-Kickback Act”) and
the U.S. Food Drug and Cosmetic Act (“FDCA”),each
as currently amended, and the rules and regulations
promulgated by the U.S. Food and Drug Administration
(“FDA”), and agrees to indemnify and hold harmless
Seller from the consequences of any violation of such
provisions by Buyer, its employees or agents. Buyer
acknowledges that it is familiar with the provisions of
the U. K. Bribery Act, the FCPA, the FDA, and the Anti-
Kickback Act, and certifies that Buyer will adhere to the
requirements thereof. In particular, Buyer represents
and agrees that Buyer will not make any payment
or give anything of value, directly or indirectly to any
governmental official, any foreign political party or
official thereof, any candidate 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.
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