ADDITIONAL TERMS & CONDITIONS
1. Sale Limited to Terms. The terms and conditions set forth on the face and reverse of this document (the “Terms and Conditions”) and the provisions of any documents specifically referenced herein set forth the entire understanding and agreement
between Welders Supply Company of Louisville, Inc. (“Seller”) and the purchaser (the person, firm or entity set out on the face of this document) (“Purchaser”) relating to Seller’s sale of the goods (the “Goods”) and the
gas product (the “Gas Product”) described on the face of this document, and loan of the gas cylinders described under the column heading “Cylinders/Ship” on the face of this document (The “Cylinders”) to Purchaser. The Terms and Conditions may
not be modified, amended or rescinded except through a writing signed by both Seller and Purchaser which specifically states that the Terms and Conditions are modified. The terms of the sale of Goods and Gas Products and loan of Cylinders shall not
include any terms proposed by Purchaser which are different from and in addition to the Terms and Conditions. Specifically and without limitation, terms contained in any written purchase order, other order documentation or “confirmatory memoranda,”
and any oral acceptance by Purchaser of any offer to Goods or Gas Products or loan of Cylinders are not included in the terms of the sale of Goods and Gas Products and/or loan of Cylinders, unless the additional or different terms are contained in writing
signed by Seller which specifically states that those terms are included.
2. Acceptance of Terms. Purchaser can accept the Terms and Conditions by either (a) signing this document in the space provided on the face hereof, or (b) accepting shipment of Goods and/or Gas Products and/or Cylinders without a written objection
specifically stating that it constitutes objection to specified portions of the Terms and Conditions.
3. Seller’s Limited Warranty. Seller warrants that all Goods conform to Seller’s standard specification in accordance with the applicable specifications, rules and regulations of the United States Interstate Commerce Commission and the Department of
Transportation.
4. EXCLUSION OF OTHER WARRANTIES. SELLER MAKES NO IMPLIED WARRANTY OF MERCHANTIBILITY, NO IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, AND NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED,
CONCERNING GOODS, GAS PRODUCTS OR CYLINDERS DESCRIBED ON THE FACE HEREOF, AND MAKES NO WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT HAVE ARISEN FROM ANY COURSE OF DEALING OR CUSTOM USAGE OF TRADE.
5. Claims and Limitations of Liability.
(a) Purchaser shall examine the Goods and the Cylinders before accepting delivery of them, and if any Goods or Cylinders are damaged or not in the quantities as described on the face of this document, Purchaser must note the damages or the
incorrect quantities on the face of this document and forward this document to Seller within 15 days of delivery of the Goods and/or Cylinders. Seller shall have no liability to Purchaser for loss or damage to any Goods or Cylinders in transit if the Goods
and/or Cylinders are delivered by common carrier, or otherwise are not delivered by Seller or its employees.
(b) Purchaser agrees to accept tolerances in the Goods, the Gas Product and/or the Cylinders consistent with trade usage, custom, course of dealing and industry practice.
(c) If any of the Goods, Gas Product or Cylinders are subject to a warranty by any person who manufactured them or sold them to seller, Purchaser’s sole and exclusive remedy for failure of the Goods and/or Gas Product and/or Cylinders to conform
to those warranties shall be the claims, if any, that Purchaser has against such manufacturer or other seller, AND SELLER SHALL HAVE NO LIABILITY WITH RESPECT THERETO. Purchaser shall make any claim on account of such failure solely against the
manufacturer or other seller, and shall not make any claim against Seller with respect thereto.
(d) Purchaser’s sole and exclusive remedy for failure of Goods and/or Gas Product and/or Cylinders to conform to Seller’s warranties contained herein and for any other failure of Seller to perform its duties under this document, shall be, at Seller’s
option:
i. Reimbursement to Purchaser of the purchase price allocable to non-conforming Goods and/or Gas Product, or to Gas Product in non-conforming Cylinders, which have been redelivered, freight prepaid to Seller pursuant to paragraph 14 of these
Additional Terms and Conditions, or
ii. Repair of non-conforming Goods and/or Cylinders which have been redelivered, freight prepaid to Seller pursuant to paragraph 14 of these additional Terms and Conditions; or
iii. Replacement of non-conforming Goods and/or Gas Product and/or Cylinders
(e) SELLER’S LIABILITIES ARE EXPRESSLY LIMITED AS SET OUT HEREIN, AND SELLER SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR
PROPERTY DAMAGE), INCURRED BY PURCHASER OR ANY OTHER PERSON AS A RESULT OF ANY BREACH OF WARRANTY OR REPRESENTATION WITH RESPECT TO THE GOODS AND/OR GAS PRODUCTS AND/OR CYLINDERS, OR THEIR FAILURE TO
PERFORM AS WARRANTED.
6. Terms of Loan of Cylinders. Any Cylinders described on the face of this document under the column headed “Cylinders/Ship” are loaned by Seller to Purchaser subject to the Terms and Conditions. All Cylinders loaned by Seller to Purchaser are
Seller’s property and merely have been loaned by Seller to Purchaser to be used for a limited period of time. Unless otherwise agreed in a writing signed by both Seller and Purchaser, Purchaser shall return all Cylinders to Seller in good condition, with
valves tightly closed, at or before the time the Gas Product contained therein is consumed. Purchaser shall pay to Seller its customary daily rental fee, or demurrage charges, in effect for cylinders of, based on type and capacity, as follows:
(a) With respect to all cryogenic Cylinders, portable banks of Cylinders, rare and specialty gas Cylinders, and such other types of Cylinders as Seller may at any time, and from time to time, designate, Purchaser shall pay the daily rental fee customarily
charged by Seller for Cylinders of that type and capacity in effect on the date an invoice is sent for those daily rental fees. Such daily rental fee will accrue for each day Purchaser has possession of the Cylinders, until is returned to Seller in accordance with
paragraph 7 below.
(b) For all other types of Cylinders, a return date for those Cylinders, generally, will be set by Seller and communicated either orally or in writing to Purchaser. For each day after a Cylinder’s return date is not returned by Purchaser to Seller, Purchaser
shall pay to Seller its customary daily demurrage charges in effect for Cylinders of that type and capacity on the date an invoice is sent out for the demurrage charges.
(c) Seller has established its customary daily rental fees and daily demurrage charges, and Purchaser may obtain a written copy of a statement of Seller’s current daily rental fees and daily demurrage charges for all types of cylinders upon request.
Such statement of daily rental fees and daily demurrage charges is subject to change from time to time, and at any time, at Seller’s discretion. Nonetheless, Purchaser agrees to pay customary daily rental fees and/or daily rental charges for Cylinders as
provided in this paragraph 6.
(d) Seller shall invoice Purchaser once each calendar month for the daily rental fees and/or daily demurrage charges accrued for Purchaser during the preceding calendar month. Such invoices shall be due upon receipt.
(e) Seller may require from Purchaser a deposit with respect to Cylinders, Goods, and/or Gas Product. If any deposit is required by Seller, Purchaser shall pay such deposit at or before taking possession of any Cylinders, Goods, and/or Gas Product.
Seller is not required to segregate any such deposit from any other funds of Seller and is expressly authorized to co-mingle any such deposit with other funds of Seller. Without limiting any other rights that Seller might have, Seller may at any time, and from
time to time, apply all or part of any such deposit against any obligations of Purchaser hereunder which are not paid or performed as and when due.
7. Acknowledgment of Receipt of Cylinders. Purchaser acknowledges receipt of the Cylinder described on the face of this document. Purchaser shall be conclusively presumed to have possession or control of such cylinders until the earlier of (a) Seller’s
receipt of Purchaser’s statement in writing that Purchaser is unable, for any reason to return such Cylinder (and any Cylinder subject to such a statement shall be deemed to be lost for purposes of paragraph 8 below), or (b) Seller receives actual possession
of such Cylinder, and has given Purchaser a signed receipt (on a form satisfactory to Seller) evidencing such return. NO CLAIM THAT ANY CYLINDER HAS BEEN RETURNED WILL BE HONORED UNLESS PURCHASER HOLDS SUCH A SIGNED RECEIPT
FROM SELLER EVIDENCING THE RETURN OF THAT CYLINDER.
8. Loss, Damage or Destruction of Cylinders.
(a) If any Cylinder loaned by Seller to Purchaser is lost, destroyed or damaged to the extent that repair of the Cylinder is not economically reasonable (damage to fittings on any Cylinder shall constitute damage to that Cylinder) from any cause while
the Cylinders are loaned to Purchaser, Purchaser shall pay to Seller the amount Seller would be required to pay to replace the particular Cylinder which is lost, destroyed or damaged beyond repair.
(b) If any Cylinder is damaged, but in Seller’s judgment it may be repaired so that its condition will be at least equal to its condition just before it was damaged, Purchaser shall pay to Seller any cost or expenses (including without limitation any expenses
for transportation) incurred by Seller in having the Cylinder repaired. Seller shall determine, in its own discretion, whether repair of any damaged Cylinder is economically feasible.
(c) Purchaser shall pay daily rental fees or demurrage for each lost, damaged or destroyed Cylinder in accordance with paragraph 6 above until the Cylinder is returned to Seller fully repaired, or if the Cylinder is lost, destroyed or damaged beyond
repair, until Seller is paid in full in accordance with this paragraph 8.
9. Cylinders may not be Refilled. CYLINDERS MAY NOT BE REFILLED WITHOUT SELLER’S PRIOR WRITTEN CONSENT.
10. Payment Terms. The full amount of the purchase price of the Goods and the Gas Product shown on the face of this document in the space marked “Total Sale” is due and payable on or before thirty days from the date of invoice for that amount in which
the Goods and/or Cylinders are delivered. No discount of the purchase price shall be allowed. SELLER SHALL IMPOSE A LATE CHARGE EACH MONTH ON THAT PORTION. IF ANY, OF THE PURCHASE PRICE OF THE GOODS AND THE GAS PRODUCT WHICH WAS NOT PAID WHEN DUE, EQUAL TO THE LESSER OF (a) 1-1/2% PER MONTH (ANNUAL PERCENTAGE RATE OF 18%) OR (b) THE MAXIMUM RATE (IF ANY) WHICH MAY BE CHARGED UNDER APPLICABLE LAW.
11. Taxes, Freight and Shipping Charges. The purchase price stated for the Goods and the Gas Product shown on the face of this document does not include any taxes (including without limitation sales or use taxes), licenses, fees, duties, tariffs, freight
or shipping charges, except to the extent explicitly set out. If any of those become applicable to the sale of the Goods or the Gas Product, they shall be added to the price and Purchaser shall pay those amounts in accordance with an invoice submitted by
Seller.
12. Shipping and Risk of Loss. The Goods, Gas Products and Cylinders are delivered F.O.B. Seller’s place of business. If an amount for transportation charges is stated on the face hereof, or on the Invoice for the Goods, Gas Product and/or Cylinders,
Purchaser shall reimburse Seller for shipping expense. Otherwise, Seller shall pay shipping expenses. Seller is authorized to ship the Goods and Cylinders to Purchaser by its own delivery trucks, or by common carrier, and in such case the carrier shall be
instructed to deliver to the person, firm or entity at the address shown after the phrase “Ship To” on the face of this document. When shipped by common carrier, Seller does not assume responsibility for damage or loss in transit.
13. Acceptance of Goods. Purchaser shall be deemed to have accepted the Goods and/or Gas Product and/or Cylinders unless:
(a) Purchaser notified Seller in writing of its rejection of the Goods or Gas Product or Cylinders, or in any non-conformity of the Goods or Gas Product or Cylinders to the contract, after reasonable opportunity to inspect the Goods or Gas Product or
Cylinders which shall not be longer than 15 days after the Goods or Cylinders have been delivered, and Purchaser, in connection with the notice to Seller, state any particular defect or non-conformity (and any defect or non-conformity not stated shall be
deemed to have been waived); and
(b) If Purchaser has received Seller’s written consent pursuant to paragraph 14 of these Additional Terms and Conditions, Purchaser fails to return any rejected Goods and/or Cylinder to Seller, freight prepaid, within 10 days after Purchaser’s receipt of
Seller’s written consent.
14. Return of Goods. Purchaser shall not return any Goods or Gas Products to Seller without the prior written consent of Seller. Purchaser shall prepay freight on any Goods, Cylinder or Gas Product returned to Seller.
15. Indemnity. Purchaser assumes all responsibility and liability for, and agrees to indemnify and hold Seller and its employees and agents harmless from and against; (a) any and all damage, loss or injury of any kind or nature whatsoever (including
personal injury and/or death resulting therefrom), to all persons, whether employees of Purchaser or otherwise, and to all property (including the loss of use thereof) and (b) damage, loss, injury, or loss that Seller or its employees and/or agents may sustain
as a result of any claim pertaining thereto caused to, resulting from, arising out of or occurring in connection with, Purchaser’s duties an/or obligations hereunder, and/or any sale, resale, delivery, use and/or consumption for the Goods and/or Gas Products
except only for such damage or injury cause by the sole negligence of Seller or its employees, Purchaser shall also indemnify and hold Seller harmless from and against any claims, liability, damage, costs, expenses or losses (including, without limitation,
reasonable attorney’s fees and expenses) either: (1) incurred by Seller as a result of Purchaser’s breach of any term, condition or provision hereof, or (2) arising out of in connection with the installation, processing, sale, delivery, use and/or consumption
by any person of any of the Goods and/or any Gas Product in whole or in part, unless such claim or injuries are due solely and exclusively to the negligence of Seller or its employees. Further, purchaser agrees to assume, on behalf of Seller and its employees,
the defense of any action at law or equity which may be brought against Seller upon any indemnification under this paragraph, or to pay on behalf of Seller, or upon Seller’s request the amount of any judgment entered against Seller in any such action. This
obligation is continuing and shall not be diminished by any approval or acceptance of, or payment for Goods and/or Gas Product by Purchaser.
16. Seller Retains Security Interest. Seller retains a security interest in the Goods and Gas Product sold to Purchaser and described on the face of this document, including all accessories, other equipment and parts here after attached to or substituted
for those Goods, to secure all of Purchaser’s obligations under this document, including without limitation Purchaser’s obligation to pay the purchase price and any accrued late charges thereon.
17. Headings. The headings used in this document have been included solely for ease of reference and shall not be considered in the interpretation or construction of this document.
18. Governing Law. The terms, conditions, and provisions of Seller’s sale of Goods and Gas Product, and loan of Cylinders, to Purchaser shall be governed in all respects by and construed in accordance with the laws, (including without limitation, the
conflicts of laws rules) of the Commonwealth of Kentucky.
