Customer agrees that the sale of all gas products and other items covered by this invoice is covered by the following terms and conditions:
1. Title to Goods:
Title to all goods and merchandise covered by this invoice remain the property of Indiana Oxygen Company, Inc. ("Indiana Oxygen") until paid for in full.
2. Terms of Sale
All sales are to be paid net 30. Interest at the rate of one and one-half (1 1/2%) per cent per month equaling eighteen (18%) per cent per annum shall be assessed on all delinquent invoices. Indiana Oxygen will charge a minimum fee of Twenty-Five Dollars ($25.00) for any check that is returned due to insufficient funds. It is the mutual responsibility of both Purchaser and IOC to determine and verify the accuracy of all invoice pricing and product/cylinder counts immediately at the time of transaction. Such invoices shall be conclusively presumed to be correct and Purchaser waives all rights to dispute or contest said invoice(s) unless Purchaser objects in writing to any charges or counts therein within thirty (30) days of the date of invoice for product(s) and/or service(s), or, in the case of cylinder rental balances, within one hundred eighty (180) days from the date of the most recent cylinder rental statement.
Returned hard good items must be in new condition, in original packaging. Returns may be subject to a 20% restocking fee, plus our original shipping/handling cost. All sales are final after 30 days. Cylinders/Gas are nonreturnable, nonrefundable.
3. Cylinders
All cylinders are rented to the Customer and no title to any cylinder passes to the Customer other than as set forth below.
Customer agrees to pay a deposit of One Hundred Dollars ($100.00) for each cylinder rented. Customer may secure this deposit with cash or a credit card. The deposit will be returned to Customer within forty-five (45) days after Customer returns all cylinders entrusted to Customer to Indiana Oxygen. Customer acknowledges that the deposit, or any portion thereof, may be withheld for damage, unpaid rent, lost cylinders, and/or any outstanding balance remaining on the Customer's account. A daily rental charge at established rates, will be invoiced on the last day of each calendar month. Customer shall be responsible for all loss or damage to any cylinder resulting from any cause while in Customer's possession. Customer acknowledges and acceptance of the cylinders in good condition and agrees to return all cylinders in good condition. All empty cylinders shall be returned to Indiana Oxygen complete with caps. Any cylinders returned without caps shall be subject to an Eight Dollar ($8.00) charge per cap.
4. Failure to Return Cylinders
In case any of said cylinders, fittings or other elements of the gas delivery system should be lost, destroyed or damaged through any cause whatsoever before they are returned to the premises of Indiana Oxygen, or in case the Customer shall fail to return any cylinder or tank within six months from the date of shipment of such cylinder or tank, the Customer agrees to pay the Indiana Oxygen, on demand, the current replacement value of said cylinder or tank; and by such payment does not acquire title to said cylinder(s) or tank(s). In addition, the rental accrued prior to such payment shall also be paid.
5. Use of Cylinders
The Customer agrees that it will not permit the refilling of any of the Indiana Oxygen's cylinders, containers or other delivery system, while in the possession or control of the Customer with any gas, liquid or solids, and will not permit the use of oil or grease or other lubricants on cylinder or tanks, valve or fittings. Customer also agrees that Gas Products purchased under this Agreement are for use by the Customer in Customer's own business and that nothing purchased under this agreement will be resold, while in Indiana Oxygen's containers, or supplied to any person, firm or corporation other than a subsidiary or affiliated company other than as agreed to by the parties in writing.
6. Claims
Claims of the Customer for shortage of Gas Product based on defective valves or other cylinder imperfections or other problems with the chosen delivery system shall be null and void unless they are made in writing within five (5) business days after the receipt of cylinder and unless such cylinder is returned to Indiana Oxygen's shipping point with tag attached and unless defect is established in Indiana Oxygen's testing department.
7. Warranties
Indiana Oxygen warrants that the Gas Products delivered hereunder shall be of standard purity, as defined by the Compressed Gas Association criteria. Indiana Oxygen makes no other warranty of any kind, either expresses or implied, including, but not limited to, any warranty of merchantability or fitness for a particular purpose. Determination of the suitability of the Gas Products furnished hereunder for the use contemplated by Customer is sole responsibility of Customer, and Indiana Oxygen shall bear no responsibility in connection therewith.
8. Injury
Customer acknowledges that there are hazards associated with the use of Gas Products, that it understand such hazards, and that it is the responsibility of Customer to warn and protect its employees, Customers, and others exposed to such hazards. Customer assumes all risk and liability for loss, damage, and/or injury to persons or property of Customers or others arising out of the presence or use of the Gas Products.
9. Customer's Remedy
Indiana Oxygen's solie liability and Customer's exclusive remedy for the non-delivery of Gas Products, or for the delivery of Gas Products not conforming to the specifications shall be limited to the purchase price of the quantity of Gas Products not delivered or the purchase price of the non-specification Gas Products delivered by Indiana Oxygen. Indiana Oxygen shall not be liable in contract or tort for any other direct, or any incidental, special, indirect or consequential damages including by way of illustration and not of limitation, loss of use, and loss of work in progress, downtime, or loss of profit.
10. Collections
In the event Indiana Oxygen is required to resort to legal action to collect any amounts due from Customer, Customer shall be responsible for any and all attorney fees and/or reasonable costs of collection including agent fees.
11. Inconsistent Terms
In the event purchases presented by this invoice are covered by any other written contract by and between Customer and Indiana Oxygen including but not limited to a Reseller Agreement and/or a Customer and Supplier Service Agreement, to the extent any terms are inconsistent, the terms of the other written contracts shall govern the transaction by and between Indiana Oxygen and Customer
12. Additional Terms and Conditions for Cylinder Lease Customers
A. EXCLUSIVE RESTRICTION:
The lessee agrees that it will not permit the refilling of any of the Lessor’s cylinder or containers, while in the possession or control of the Lessee, with any gas, liquid or solid, by any party other than the Lessor, and will not permit the use of oil or grease or other lubricants on cylinder valves or fittings. This Lease shall be binding upon and endure to the benefit of the successors and assigns of the parties hereto.
B. EXCHANGE RIGHTS:
The Lessor agrees to furnish refill service for the cylinder(s) leased to the Lessee, either on an even exchange basis, or by refill of the specific cylinders tendered, at the discretion of the Lessor, F.O.B. plant, Indianapolis, Indiana.
C. HYDROSTATIC TESTING & CYLINDER MAINTENANCE:
It is required by regulation that oxygen, hydrogen, argon and nitrogen cylinders be subject to hydrostatic testing every 5 years (10 years on certain cylinders), and standards of safety precautions require periodic inspection, servicing, and replacement of valves, acetone, safety devices, etc,. covering oxygen hydrogen, nitrogen and acetylene cylinders. The Lessor agrees to furnish such services to the Lessee. The Lessee agrees to deliver to the Lessor on or before the expiration of the 5-year period, any and all oxygen, hydrogen, argon and nitrogen cylinders covered by this agreement, requiring retest for the purpose of permitting Lessor to make the hydrostatic test. This is at no charge to the Lessee.
D. RIGHT OF CANCELLATION:
In the event that Lessee fails to comply with any of the terms and conditions of this Lease, or in the event that the Lessee’s credit balance fails to comply with expressed terms, or in the event that a petition is filed by, on behalf of, or against the Lessee under any provision of bankruptcy law, or receiver is appointed to take possession of the property of the Lessee, or the Lessee is declared insolvent by any court of competent jurisdiction, or takes the benefit of any insolvency law, or makes an assignment for the benefit of creditors, the Lessor, at its option, to be exercised by giving written notice to the Lessee, may terminate this Lease.
13. Release and Waiver of Liability
This Release (Release) is executed on today’s date by and between, Indiana Oxygen Company (“IOC”) and Customer regarding the loading, unloading and transportation by customer of Gas Products, including cylinders or other gas storage units (“Gas Products”).
NOW THEREFORE for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
Customer acknowledges that there are hazards associated with the use and transportation of Gas Products, that it understands such hazards, and that it is the responsibility of Customer to load, unload, transport and use such Gas Products in a safe and responsible manner. Customer assumes all risk and liability for loss, damage, and/or injury to persons or property of Customer’s or others arising out of the presence, transport, loading, unloading or use of Gas Products.
Customer does hereby release, cancel, forgive and forever discharge IOC and shall indemnify, defend and hold harmless IOC for all expenses and losses (including attorneys’ fees) from and associated with all actions, claims, demands, damages, obligations, liabilities, controversies and executions, of any kind or nature whatsoever, whether known or unknown, whether suspected or not, which have arisen, or may have arisen, or shall arise by reason of the activity described above. Customer does specifically waive any claim or right to assert any cause of action or alleged case of action or claim or demand which has, through oversight or error intentionally or unintentionally or through a mutual mistake, been omitted from this Release.
The provisions of this Agreement must be read as a whole and are not severable and/or separately enforceable by either party hereto.
