The MyAirProducts℠ application and the MyAirProducts application Customer Service Center provide online ordering and tracking services on behalf of Air Products and Chemicals, Inc., its subsidiaries, joint ventures, agents, distributors and business partners (collectively, "Air Products") as a value-added way of streamlining the ordering process and enhancing the tracking of your orders.
All orders placed through this site are subject to the written contract executed between you and the relevant Air Products company, where such contract exists, and to the terms and conditions set forth below. The Seller(s) for each product or service is specifically identified in the products and services listing presented at the time of the order, unless specifically noted otherwise in the MyAirProducts application Order Confirmation of Acceptance that will be sent later by Air Products on behalf of the Seller(s) if your order is accepted.
Your use of the site is subject to the Web Site Terms and Conditions and our Privacy Policy.
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CONSUMER CREDIT ACT 1974 [for United Kingdom of Great Britain and Northern Ireland only]
This Agreement shall not apply to the hiring of Containers where the Customer is a person, partnership or other unincorporated body of persons not consisting of bodies corporate. In such circumstances you must advise Air Products of such fact and no hiring will take place until Air Products submits the appropriate hire agreement to you and you accept it in accordance with the Consumer Credit Act 1974.
By placing an order through this site you are warranting to Air Products that you require the products or services in question for business use.
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Part I Terms of Use for the MyAirProducts application
1. Use of this Site.
(a) If you have been prequalified by Air Products to use this site, you as the "Buyer" have the ability to place orders through this site with Air Products for designated products and services for delivery to selected destinations. Your order will be directed to the various Seller(s) (as defined above) and, if accepted by those Seller(s), would be fulfilled by those Seller(s) pursuant to the written contract executed between you and the relevant Air Products company, where such contract exists, and the terms and conditions presented here. Your use of this site is subject to our Web Site Terms and Conditions and our Privacy Policy which are incorporated herein by this reference. Air Products makes no representation that the information contained on the site is appropriate or available for use in all countries, and access to information from places where the site's contents are illegal is prohibited. Your local Air Products contact can assist you with the availability of our products and services.
(b) The existence of this site and the ability to request information or request or order products and services through the site is not an offer to sell or solicit or do business through this site in any particular country or jurisdiction. Neither the existence of this site nor the accessibility of content of this site is intended to establish any new or additional jurisdictional or tax contacts or relationships for or between any Seller and any particular country or jurisdiction.
(c) The information and functionality contained in this site has been provided as a convenience and in some cases, is provided by outside sources. It has been supplied upon the condition that the recipient will make his or her own determination as to the suitability of that information before use and that the recipient has the proper qualifications or expertise to properly evaluate and use that information.
(d) Buyer shall not transmit unsolicited copyrighted, confidential or proprietary information to Air Products through this site, by e-mail or otherwise. Please note that any unsolicited information or material sent to Air Products will be deemed not to be confidential or proprietary. By sending any such information or material, Buyer grants Air Products an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and also agrees that Air Products is free to use any ideas, concepts, know-how or techniques that Buyer sends for any purpose.
(e) This site may contain chat rooms or bulletin boards for the convenience of Air Products or users of this site. Air Products does not control the materials or information placed in these media. No user shall (i) interfere with another user's use of such media on this site; (ii) post unlawful, obscene, threatening or indecent material; (iii) post infringing material; (iv) violate the privacy or publicity rights of others; (v) post material containing viruses or other harmful elements; or (vi) post material for commercial or advertising purposes. Air Products undertakes no duty to monitor these media, but reserves the right to disclose any information required to satisfy legal or governmental requirements, or to remove or deny the posting of any material that Air Products deems objectionable in its sole judgment, or to prosecute improper tampering with or use of this site to the full extent of the law.
(f) Trademarks and trade names belonging to Air Products are protected under the laws of various jurisdictions and have been registered in various countries where registration is legally required or considered by us to be beneficial. Presentation of information in this site does not confer on you any proprietary or other rights in Air Products' trademarks, tradenames, copyrights, patents or other proprietary rights or information. Linking to other sites does not imply that Air Products or the linked site has any legal authorization to any trademark, trade name, logo or copyright of the other.
(g) BECAUSE AIR PRODUCTS, ITS AFFILIATES AND CONTRACTORS HAVE NO CONTROL THROUGH THIS SITE ON THE USE OF THE INFORMATION PROVIDED HERE OR THE USE OR NATURE OF EITHER THIRD-PARTY LINKS OR HYPERLINKS TO THIRD-PARTY SITES, NEITHER AIR PRODUCTS NOR ITS AFFILIATES OR CONTRACTORS PROVIDE ANY WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE INFORMATION OR SUCH LINKS, NOR WARRANT THE RESULTS TO BE OBTAINED FROM USING SUCH INFORMATION OR SUCH LINKS, FOR ANY PURPOSE, INCLUDING ANY GOODS OR SERVICES PURCHASED IN RELIANCE ON SUCH INFORMATION OR LINKS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER AIR PRODUCTS NOR ITS AFFILIATES OR CONTRACTORS ASSUME ANY LIABILITY FOR INACCURACIES, ERRORS OR OMISSIONS, THE USE OF THE INFORMATION, THE AVAILABILITY OF RESOURCES TO SERVICE THE APPLICATIONS ON THIS SITE, HARDWARE OR SOFTWARE FAILURES, OR FORCE MAJEURE EVENTS, AND CANNOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM THE USE OF THE INFORMATION OR SUCH LINKS OR THE FUNCTIONALITY OF THIS SITE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, AND WHETHER THE CLAIM IS IN CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE.
2. Forming the Agreement to Purchase On-Line Products and Services.
Nothing contained in this site shall constitute an offer by Seller to buy or sell products or services. No agreement to buy or sell products or services shall be formed by means of the use of this site until an order is made by you and accepted by Seller in the manner described in this site. Once your order has been accepted in that manner, the entire Agreement between Buyer and Seller for the sale of products and services ordered by you through this site (herein "the Agreement") shall be composed of either of the following components:
(A) for those products and services that are the subject of an existing written Product Supply Agreement or Service Agreement which is rendered in non-electronic media between Buyer and Seller and which has been identified in the prequalification process for this purpose, the Agreement shall be (listed in order from highest priority or governing document to lowest priority or governing document): (i) this Part I of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (ii) such Product Supply Agreement or Service Agreement, (iii) any other written agreement with respect to the sale of this product or the rendering of this service between Buyer and Seller which a duly authorized representative of Seller has executed in non-electronic media, (iv) Part II of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (v) the MyAirProducts Order Confirmation of Acceptance, (vi) Seller's the MyAirProducts application On-Line Order form completed and submitted by Buyer for such products and services (which shall be treated as an order under such Product Supply Agreement or Service Agreement), and (vii) Seller's Delivery Ticket accompanying such products or services at the time of delivery to Buyer, or
(B) for all other products and services, the Agreement shall be (listed in order from highest priority or governing document to lowest priority or governing document): (i) this Part I of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (ii) any other written agreement with respect to the sale of this product or the rendering of this service between Buyer and Seller which a duly authorized representative of Seller has executed in non-electronic media, (iii) Seller's applicable standard terms and conditions as from time to time notified in writing to Buyer, (iv) Part II of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (v) the MyAirProducts application Order Confirmation of Acceptance, (vi) Seller's MyAirProducts application On-Line Order form completed and submitted by Buyer for such products and services, (vii) the pertinent on-line catalog information at the time of the order, including product or service specifications, or other written product or service specifications provided by Seller specifically for Buyer in this transaction, and (viii) Seller's Delivery Ticket accompanying such products or services at the time of delivery to Buyer. Pricing for the products and services in orders submitted through this site are generally available around the time Buyer's order is accepted by Seller. Buyer shall have the right to cancel its order pursuant to Seller's cancellation notice policy after Buyer is notified of such pricing and of Seller's identity.
Pricing for the products and services in orders submitted through this site are generally available around the time Buyer's order is accepted by Seller. Buyer shall have the right to cancel its order pursuant to Seller's cancellation notice policy after Buyer is notified of such pricing and of Seller's identity.
3. Notices
Any notices required or permitted by this Agreement shall be sent as required under the applicable provisions of the Agreement or as follows: Air Products and Chemicals, Inc. will accept and forward notices sent by registered or certified mail, return receipt requested, to Seller care of the following business address: [Seller], c/o Air Products and Chemicals, Inc., 7201 Hamilton Boulevard, Allentown, PA 18195, Attention: the MyAirProducts application Customer Service Desk, or by e-mail to the e-mail address MyAirProducts@airproducts.com. Buyer's business address and e-mail address are those Buyer specified by proper notice or during registration, subject to change by Buyer by proper notice to Seller.
4. General Provisions
(a) The Agreement (as defined above) constitutes the entire agreement between the parties. Any terms and conditions in any form of purchase order, order acknowledgment or other acceptance forms of Buyer issued with respect to this transaction shall be deemed intended for record purposes only, and shall not alter or add to the terms hereof and objection is hereby made to all such additional or different terms. Acceptance is expressly limited to the terms offered in the Agreement. No modification or waiver of this Agreement shall bind Seller unless in writing, and executed in non-electronic media by a duly authorized representative of Seller. Electronic records and proper electronic signatures as defined under law shall constitute properly written and signed instruments for purposes of this Agreement unless expressly prohibited by law or where this Agreement specifically provides that the requirement of a "writing" must be in non-electronic media.
(b) This Agreement may not be assigned by Buyer without the prior written consent of Seller. It shall inure to the benefit of and be binding upon the successors and, if properly assigned, the assigns of both parties.
(c) If any provision of this Agreement is held invalid by any law and/or regulation, all other provisions hereof shall continue in full force and effect.
(d) If because of government regulation (i) Seller is not able to receive such price, including any revised price, established pursuant to this Agreement, or (ii) Seller is required to make studies, conduct tests, purchase equipment or make modifications at any of its plants where such product is manufactured, and costs of compliance with such regulation are in Seller's sole judgment economically burdensome, then Seller may terminate this Agreement on notice to Buyer.
(e) Any waiver by the parties of strict conformance with any of the terms and conditions of this Agreement shall not be a waiver of any subsequent failure to comply with such terms and conditions.
(f) Matters arising under the Agreement defined above shall be governed by the choice of law specified therein. Part I of this Agreement, and any other matters not arising under the Agreement shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania without giving effect to its conflicts of laws provisions.
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Part II Terms of Sale Under the MyAirProducts application
(Applicable to the extent not provided for in Part I above)
1. Seller's Remedies
If Buyer commits a breach of any of the provisions of this Agreement, or if Buyer defaults in the payment of any indebtedness to Seller whether or not under this Agreement, or if bankruptcy, receivership, insolvency or reorganization proceedings are instituted by or against Buyer, then in any such event Seller shall have the right, in addition to any other rights and remedies it may have, to suspend deliveries hereunder or to terminate this Agreement.
2. Warranty
In the case of equipment sold by Seller as product hereunder, for a period of one (1) year from the date of delivery of such product, Seller warrants that at the time of shipment the product shall be free from defects in material and workmanship. In the case of medical gases sold by Seller as product hereunder, Seller warrants that at the time of delivery such product is of standard commercial purity. In the case of industrial gases or other chemicals sold as product hereunder, Seller warrants that at the time of delivery, such product is of standard commercial purity except to the extent a different specification is given by the Agreement. In the case of services rendered by Seller hereunder, Seller warrants that at the time rendered such services are performed in a good and workmanlike manner. Seller shall have good title and right to transfer products sold hereunder and that the same shall be delivered free of encumbrances. THE FOREGOING WARRANTY IS THE SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS , EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. Buyer's Obligations
(a) Buyer shall comply with all relevant obligations under applicable law resulting from the presence of the products supplied under the Agreement. Further, it is a responsibility of the Buyer to warn and protect its employees and others exposed to the hazards posed by Buyer's storage and use of product and to comply with all federal, state and local legal notification, reporting and/or permit requirements which may be associated with the storage or use of product.
(b) In cases where Seller is required to have access to Buyer's premises to perform hereunder, Buyer shall maintain suitable general liability and contract liability insurance with reputable insurance carriers in a per occurrence amount of at least One Million Dollars ($1,000,000), or such lesser amount where agreed to by Seller, and shall provide Seller with certificates of coverage if requested. Such policies shall provide for a minimum ten (10) days' advance notice to Seller of any termination or cancellation thereof. Further, Buyer shall indemnify and hold harmless Seller from and against any cost, liability, damage or expense (including reasonable attorneys' fees), arising out of or relating to any claim by any third party for personal injury or property loss or damage in connection with Seller's access to Buyer's premises under this Agreement, including, without limitation, where such claim pertains to Seller's negligence or strict liability but excluding Seller's willful misconduct or deliberate wrongdoing.
4. Limitation of Liability
(a) Buyer acknowledges that there are hazards associated with the use of the product, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect its employees and others exposed to such hazards through Buyer's storage and use of the product. Seller shall provide Buyer with copies of Material Safety Data Sheets relating to the product for Buyer to make such warnings, and Buyer shall hold harmless, indemnify and defend Seller from and against any liability incurred by Seller because such warnings were not made. Buyer assumes all risk and liability for loss, damages or injury to persons or to property of Buyer or others arising out of the presence or use of the product ( save, in the case of liability for death or personal injury, where arising from Seller's negligence )or from the failure to make such warnings.
(b) Buyer acknowledges that it can obtain and install devices to sample the product delivered to determine its compliance with specifications prior to use. Buyer assumes responsibility to analyze product before use, and Seller shall have no liability if Buyer uses product that does not conform to the specifications.
(c) The liability of Seller for products and services covered by the warranty provided hereunder is limited solely to: (i) in the case of equipment, replacing, repairing or issuing credit for, at the discretion of Seller, the parts that are found during the warranty period to have been damaged or defective upon shipment, (ii) in the case of medical gases, industrial gases and chemicals, to replacing such defective product or reimbursing Buyer for whatever portion of the purchase price has been paid, at the discretion of Seller, and (iii) in the case of services, correcting Seller's workmanship or issuing credit for the fee paid to Seller, at the discretion of Seller, and repairing or replacing or issuing credit for, at the discretion of the Seller, defective materials provided by Seller in connection with such services; provided that, Seller will not be liable under the warranty provided hereunder with respect to equipment unless (i) Seller is promptly notified in writing by Buyer upon discovery of such damage or defect; (ii) the defective unit or part is returned to Seller, transportation charges prepaid by Buyer; (iii) the defective unit or part is received by Seller for adjustment no later than four (4) weeks following the last day of the warranty period; and (iv) Seller's examination of such unit or part shall disclose, to its satisfaction, that such defects or failures have not been caused by misuse, neglect, improper installation, unauthorized repair or alteration or accident. If the equipment manufactured by Seller consists primarily of parts manufactured by others, Seller will only make available for the Buyer's benefit those warranties which Seller has received from third party manufacturers. Any authorization of Seller for repair or alteration by the Buyer must be in writing to prevent voiding this warranty.
(d) NO CLAIM OF ANY KIND, WHETHER BASED ON DELIVERY OR NON-DELIVERY OF PRODUCT, THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, OR ON TORT (E.G., NEGLIGENCE, STRICT LIABILITY, ETC.) SHALL BE GREATER IN AMOUNT THAN TWICE THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT TO WHICH SUCH CLAIM RELATES OR THE FEE PAID FOR SERVICES TO WHICH SUCH CLAIM RELATES. Except for warranty claims for equipment sold as product hereunder, any claims by Buyer must be received by Seller in writing within 30 days of the date of delivery or non-delivery of product or performance of services; warranty claims for equipment sold as product hereunder must be received by Seller in writing within one year of the date of delivery. Failure to deliver notice of claim to Seller within the specified period will constitute a waiver by Buyer of all claims in respect of such delivery or non-delivery of product or performance of services. Products in saleable condition may be returned to Seller only after specific written authorization by Seller and will be subject to a minimum restocking and handling charge. Such products are to be returned freight prepaid to Seller's facility as designated in the above authorization.
(e) EXCEPT IN THE CASE OF SELLER'S WILLFUL MISCONDUCT OR DELIBERATE WRONGDOING, SELLER SHALL NOT BE LIABLE IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) FOR DIRECT (OTHER THAN COSTS OF REPAIR, REPLACEMENT OR CREDIT AS DESCRIBED ABOVE), SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL SELLER BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE PRESENCE OR USE OF ANY OF SELLER'S PRODUCTS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. Determination of the suitability of any of Seller's products furnished hereunder for the use contemplated by Buyer is the sole responsibility of Buyer and Seller shall have no responsibility in connection therewith. Buyer assumes all risk and liability for loss, damage or injury to persons or property of Buyer or others arising out of the use or possession of Seller's products. The warranty as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, the rendering of technical advice or service in connection with Buyer's order or the products furnished hereunder, but the above stated limitation of liability shall apply to such services.
(f) In providing services hereunder, Seller does not accept or assume liability for any defect in material or workmanship of equipment not manufactured by Seller or its affiliates, or for any condition or occurrence affecting the proper operation of equipment resulting from accident, negligence, abuse or misuse of the equipment, or any other cause whether or not similar to those described above.
5. Force Majeure
(a) Neither party hereto shall be considered in default in the performance of its obligations hereunder (other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with act of government and government regulations (whether or not valid), embargo, machinery or equipment breakdown, or due to any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of the party claiming excuse hereunder.
(b) Neither party hereto shall be required to make any concession or grant any demand or request to bring to an end any strike or other concerted act of workers.
(c) Either party affected by an event described in this section shall, promptly upon learning of such event and ascertaining that it has or will affect its performance hereunder, give notice to the other party, stating the nature of the event, its anticipated duration and any action being taken to avoid or minimize its effect.
(d) If any event within this Section shall only partially reduce Seller's ability to produce or deliver products or services, then Seller may prorate its available supply and resources among Buyer and Seller's other customers in a fair and equitable manner.
6. Delivery
(a) Delivery shall be F.O.B. Seller's manufacturing or distribution facility, or where applicable, Seller's delivery vehicle. All risk of loss shall pass to Buyer upon delivery.
(b) Unless otherwise agreed by Seller in the Agreement, transportation companies assume all liability for damage to goods from the time a shipment is received by them until the time it is delivered to the consignee and Seller's liability for such damage ceases at the time of shipment. All shipments leaving Seller's plant are carefully inspected. Promptly upon receipt of goods, Buyer should inspect the shipment. If a shipment arrives with the crating or packaging damaged, the Buyer should have the carrier note the condition on the receipt. Buyer should check as soon as possible for concealed damage. If Buyer discovers that the shipment has been damaged in transit, the damaged item should not be returned to Seller; rather Buyer should immediately notify and file a claim with the carrier. Buyer's failure to follow this procedure will result in refusal by the carrier to honor any claims with a consequent loss to Buyer. Goods should not be returned for credit or warranty of claims unless authorized by the factory. When authorized, Buyer should return the damaged item to Seller by the delivering carrier in accordance with Seller's instructions.
7. Payment Terms; Taxes
(a) Prevailing payment terms between Air Products and the Buyer will apply
(b) Buyer agrees that there will be added to the price of products and services supplied hereunder any excise, use, privilege, value added or sales tax, or any other tax or assessment (other than those based upon the net income or the net worth of the Seller) now or hereafter imposed by or under the authority of any federal, state or local law, rule or regulation with respect to the manufacture, sale, shipment or use of the product or rendering of services hereunder The Buyer expressly authorizes the Seller to collect and remit such taxes as may be required by any applicable laws. If the purchase of the product or service is exempt from sales or use tax, the Buyer shall furnish the Seller with a valid exemption certificate in form and content acceptable to the Seller. All payments of the contract price, including payments made with regard to the sale, shipment, use, or disposal of the product, the rendering of services, any indemnification payments, and any other payments made to the Seller pursuant to this Agreement, shall be made without any deduction or withholding and free of any taxes or similar charges that a federal, state or local authority may impose on the Seller or the Buyer on or with respect to any such payments. Seller reserves the right on its invoices to Buyer to correct misstatements or miscalculations of pricing or other charges that were made electronically, telephonically or otherwise, and such invoices shall be deemed final, absent manifest error.
8. Cylinders
(a) Any cylinders recorded on the delivery ticket given to Buyer at the time of delivery are the property of Seller and are loaned to Buyer subject to the terms and conditions hereof. Unless otherwise agreed to in writing, Buyer agrees to return said cylinders in good condition to Seller, with valves tightly closed. Buyer further agrees to pay Seller, as demurrage, an amount payable monthly for so long thereafter as the said cylinders shall be detained by the Buyer, which demurrage shall be computed in accordance with Seller's prevailing demurrage billing system.
(b) Buyer agrees to pay Seller, at Seller's then prevailing cost, for the loss, destruction or damage beyond repair of said cylinders or fittings resulting from any cause while such cylinders are on loan to Buyer. In the case of damage permitting repair, Buyer agrees to pay the actual cost of repair incurred by Seller, plus cost of necessary transportation. Demurrage referred to in the preceding paragraph will be applicable until the cylinder is returned, or, if the cylinder cannot be returned, until Seller is paid in accordance with this paragraph.
(c) Until such cylinders are returned, or until Buyer states in writing that Buyer is unable for any reason whatsoever to return such cylinders, Buyer shall be conclusively presumed to have possession or control of such cylinders.
(d) No claim that cylinders have been returned by Buyer will be honored unless Buyer holds a valid signed receipt on the form provided by Seller evidencing such return. The refilling of cylinders without Seller's consent in writing is prohibited.
9. Security Interest in Equipment Products
Notwithstanding any other provision hereof, with respect to equipment, title to any such products intended to be sold hereunder, including all accessories, other equipment and parts hereinafter attached or substituted, shall not pass to Buyer, and Seller shall have a security interest therein, until all unpaid sums are fully paid in accordance with Seller's pre-approved credit terms.
Seller's Cancellation of Delivery
Seller reserves the right to cancel a delivery of a product or service without liability to Buyer if in Seller's opinion the manufacture, sale or use of such product or the rendering of such service as such would violate applicable law or infringe any patent not held by or licensed to Seller.
10. Dispute Resolution
Any dispute between Buyer and Seller under this Agreement which cannot be resolved with reasonable promptness shall be referred to each party's senior manager in an effort to obtain prompt resolution. Neither party shall commence any action against the other until the expiration of 60 days from the date of referral to such senior managers; provided however, this shall not preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.
All orders placed through this site are subject to the written contract executed between you and the relevant Air Products company, where such contract exists, and to the terms and conditions set forth below. The Seller(s) for each product or service is specifically identified in the products and services listing presented at the time of the order, unless specifically noted otherwise in the MyAirProducts application Order Confirmation of Acceptance that will be sent later by Air Products on behalf of the Seller(s) if your order is accepted.
Your use of the site is subject to the Web Site Terms and Conditions and our Privacy Policy.
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CONSUMER CREDIT ACT 1974 [for United Kingdom of Great Britain and Northern Ireland only]
This Agreement shall not apply to the hiring of Containers where the Customer is a person, partnership or other unincorporated body of persons not consisting of bodies corporate. In such circumstances you must advise Air Products of such fact and no hiring will take place until Air Products submits the appropriate hire agreement to you and you accept it in accordance with the Consumer Credit Act 1974.
By placing an order through this site you are warranting to Air Products that you require the products or services in question for business use.
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Part I Terms of Use for the MyAirProducts application
1. Use of this Site.
(a) If you have been prequalified by Air Products to use this site, you as the "Buyer" have the ability to place orders through this site with Air Products for designated products and services for delivery to selected destinations. Your order will be directed to the various Seller(s) (as defined above) and, if accepted by those Seller(s), would be fulfilled by those Seller(s) pursuant to the written contract executed between you and the relevant Air Products company, where such contract exists, and the terms and conditions presented here. Your use of this site is subject to our Web Site Terms and Conditions and our Privacy Policy which are incorporated herein by this reference. Air Products makes no representation that the information contained on the site is appropriate or available for use in all countries, and access to information from places where the site's contents are illegal is prohibited. Your local Air Products contact can assist you with the availability of our products and services.
(b) The existence of this site and the ability to request information or request or order products and services through the site is not an offer to sell or solicit or do business through this site in any particular country or jurisdiction. Neither the existence of this site nor the accessibility of content of this site is intended to establish any new or additional jurisdictional or tax contacts or relationships for or between any Seller and any particular country or jurisdiction.
(c) The information and functionality contained in this site has been provided as a convenience and in some cases, is provided by outside sources. It has been supplied upon the condition that the recipient will make his or her own determination as to the suitability of that information before use and that the recipient has the proper qualifications or expertise to properly evaluate and use that information.
(d) Buyer shall not transmit unsolicited copyrighted, confidential or proprietary information to Air Products through this site, by e-mail or otherwise. Please note that any unsolicited information or material sent to Air Products will be deemed not to be confidential or proprietary. By sending any such information or material, Buyer grants Air Products an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and also agrees that Air Products is free to use any ideas, concepts, know-how or techniques that Buyer sends for any purpose.
(e) This site may contain chat rooms or bulletin boards for the convenience of Air Products or users of this site. Air Products does not control the materials or information placed in these media. No user shall (i) interfere with another user's use of such media on this site; (ii) post unlawful, obscene, threatening or indecent material; (iii) post infringing material; (iv) violate the privacy or publicity rights of others; (v) post material containing viruses or other harmful elements; or (vi) post material for commercial or advertising purposes. Air Products undertakes no duty to monitor these media, but reserves the right to disclose any information required to satisfy legal or governmental requirements, or to remove or deny the posting of any material that Air Products deems objectionable in its sole judgment, or to prosecute improper tampering with or use of this site to the full extent of the law.
(f) Trademarks and trade names belonging to Air Products are protected under the laws of various jurisdictions and have been registered in various countries where registration is legally required or considered by us to be beneficial. Presentation of information in this site does not confer on you any proprietary or other rights in Air Products' trademarks, tradenames, copyrights, patents or other proprietary rights or information. Linking to other sites does not imply that Air Products or the linked site has any legal authorization to any trademark, trade name, logo or copyright of the other.
(g) BECAUSE AIR PRODUCTS, ITS AFFILIATES AND CONTRACTORS HAVE NO CONTROL THROUGH THIS SITE ON THE USE OF THE INFORMATION PROVIDED HERE OR THE USE OR NATURE OF EITHER THIRD-PARTY LINKS OR HYPERLINKS TO THIRD-PARTY SITES, NEITHER AIR PRODUCTS NOR ITS AFFILIATES OR CONTRACTORS PROVIDE ANY WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE INFORMATION OR SUCH LINKS, NOR WARRANT THE RESULTS TO BE OBTAINED FROM USING SUCH INFORMATION OR SUCH LINKS, FOR ANY PURPOSE, INCLUDING ANY GOODS OR SERVICES PURCHASED IN RELIANCE ON SUCH INFORMATION OR LINKS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER AIR PRODUCTS NOR ITS AFFILIATES OR CONTRACTORS ASSUME ANY LIABILITY FOR INACCURACIES, ERRORS OR OMISSIONS, THE USE OF THE INFORMATION, THE AVAILABILITY OF RESOURCES TO SERVICE THE APPLICATIONS ON THIS SITE, HARDWARE OR SOFTWARE FAILURES, OR FORCE MAJEURE EVENTS, AND CANNOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM THE USE OF THE INFORMATION OR SUCH LINKS OR THE FUNCTIONALITY OF THIS SITE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, AND WHETHER THE CLAIM IS IN CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE.
2. Forming the Agreement to Purchase On-Line Products and Services.
Nothing contained in this site shall constitute an offer by Seller to buy or sell products or services. No agreement to buy or sell products or services shall be formed by means of the use of this site until an order is made by you and accepted by Seller in the manner described in this site. Once your order has been accepted in that manner, the entire Agreement between Buyer and Seller for the sale of products and services ordered by you through this site (herein "the Agreement") shall be composed of either of the following components:
(A) for those products and services that are the subject of an existing written Product Supply Agreement or Service Agreement which is rendered in non-electronic media between Buyer and Seller and which has been identified in the prequalification process for this purpose, the Agreement shall be (listed in order from highest priority or governing document to lowest priority or governing document): (i) this Part I of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (ii) such Product Supply Agreement or Service Agreement, (iii) any other written agreement with respect to the sale of this product or the rendering of this service between Buyer and Seller which a duly authorized representative of Seller has executed in non-electronic media, (iv) Part II of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (v) the MyAirProducts Order Confirmation of Acceptance, (vi) Seller's the MyAirProducts application On-Line Order form completed and submitted by Buyer for such products and services (which shall be treated as an order under such Product Supply Agreement or Service Agreement), and (vii) Seller's Delivery Ticket accompanying such products or services at the time of delivery to Buyer, or
(B) for all other products and services, the Agreement shall be (listed in order from highest priority or governing document to lowest priority or governing document): (i) this Part I of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (ii) any other written agreement with respect to the sale of this product or the rendering of this service between Buyer and Seller which a duly authorized representative of Seller has executed in non-electronic media, (iii) Seller's applicable standard terms and conditions as from time to time notified in writing to Buyer, (iv) Part II of these Terms and Conditions for the MyAirProducts application On-Line Ordering, (v) the MyAirProducts application Order Confirmation of Acceptance, (vi) Seller's MyAirProducts application On-Line Order form completed and submitted by Buyer for such products and services, (vii) the pertinent on-line catalog information at the time of the order, including product or service specifications, or other written product or service specifications provided by Seller specifically for Buyer in this transaction, and (viii) Seller's Delivery Ticket accompanying such products or services at the time of delivery to Buyer. Pricing for the products and services in orders submitted through this site are generally available around the time Buyer's order is accepted by Seller. Buyer shall have the right to cancel its order pursuant to Seller's cancellation notice policy after Buyer is notified of such pricing and of Seller's identity.
Pricing for the products and services in orders submitted through this site are generally available around the time Buyer's order is accepted by Seller. Buyer shall have the right to cancel its order pursuant to Seller's cancellation notice policy after Buyer is notified of such pricing and of Seller's identity.
3. Notices
Any notices required or permitted by this Agreement shall be sent as required under the applicable provisions of the Agreement or as follows: Air Products and Chemicals, Inc. will accept and forward notices sent by registered or certified mail, return receipt requested, to Seller care of the following business address: [Seller], c/o Air Products and Chemicals, Inc., 7201 Hamilton Boulevard, Allentown, PA 18195, Attention: the MyAirProducts application Customer Service Desk, or by e-mail to the e-mail address MyAirProducts@airproducts.com. Buyer's business address and e-mail address are those Buyer specified by proper notice or during registration, subject to change by Buyer by proper notice to Seller.
4. General Provisions
(a) The Agreement (as defined above) constitutes the entire agreement between the parties. Any terms and conditions in any form of purchase order, order acknowledgment or other acceptance forms of Buyer issued with respect to this transaction shall be deemed intended for record purposes only, and shall not alter or add to the terms hereof and objection is hereby made to all such additional or different terms. Acceptance is expressly limited to the terms offered in the Agreement. No modification or waiver of this Agreement shall bind Seller unless in writing, and executed in non-electronic media by a duly authorized representative of Seller. Electronic records and proper electronic signatures as defined under law shall constitute properly written and signed instruments for purposes of this Agreement unless expressly prohibited by law or where this Agreement specifically provides that the requirement of a "writing" must be in non-electronic media.
(b) This Agreement may not be assigned by Buyer without the prior written consent of Seller. It shall inure to the benefit of and be binding upon the successors and, if properly assigned, the assigns of both parties.
(c) If any provision of this Agreement is held invalid by any law and/or regulation, all other provisions hereof shall continue in full force and effect.
(d) If because of government regulation (i) Seller is not able to receive such price, including any revised price, established pursuant to this Agreement, or (ii) Seller is required to make studies, conduct tests, purchase equipment or make modifications at any of its plants where such product is manufactured, and costs of compliance with such regulation are in Seller's sole judgment economically burdensome, then Seller may terminate this Agreement on notice to Buyer.
(e) Any waiver by the parties of strict conformance with any of the terms and conditions of this Agreement shall not be a waiver of any subsequent failure to comply with such terms and conditions.
(f) Matters arising under the Agreement defined above shall be governed by the choice of law specified therein. Part I of this Agreement, and any other matters not arising under the Agreement shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania without giving effect to its conflicts of laws provisions.
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Part II Terms of Sale Under the MyAirProducts application
(Applicable to the extent not provided for in Part I above)
1. Seller's Remedies
If Buyer commits a breach of any of the provisions of this Agreement, or if Buyer defaults in the payment of any indebtedness to Seller whether or not under this Agreement, or if bankruptcy, receivership, insolvency or reorganization proceedings are instituted by or against Buyer, then in any such event Seller shall have the right, in addition to any other rights and remedies it may have, to suspend deliveries hereunder or to terminate this Agreement.
2. Warranty
In the case of equipment sold by Seller as product hereunder, for a period of one (1) year from the date of delivery of such product, Seller warrants that at the time of shipment the product shall be free from defects in material and workmanship. In the case of medical gases sold by Seller as product hereunder, Seller warrants that at the time of delivery such product is of standard commercial purity. In the case of industrial gases or other chemicals sold as product hereunder, Seller warrants that at the time of delivery, such product is of standard commercial purity except to the extent a different specification is given by the Agreement. In the case of services rendered by Seller hereunder, Seller warrants that at the time rendered such services are performed in a good and workmanlike manner. Seller shall have good title and right to transfer products sold hereunder and that the same shall be delivered free of encumbrances. THE FOREGOING WARRANTY IS THE SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS , EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. Buyer's Obligations
(a) Buyer shall comply with all relevant obligations under applicable law resulting from the presence of the products supplied under the Agreement. Further, it is a responsibility of the Buyer to warn and protect its employees and others exposed to the hazards posed by Buyer's storage and use of product and to comply with all federal, state and local legal notification, reporting and/or permit requirements which may be associated with the storage or use of product.
(b) In cases where Seller is required to have access to Buyer's premises to perform hereunder, Buyer shall maintain suitable general liability and contract liability insurance with reputable insurance carriers in a per occurrence amount of at least One Million Dollars ($1,000,000), or such lesser amount where agreed to by Seller, and shall provide Seller with certificates of coverage if requested. Such policies shall provide for a minimum ten (10) days' advance notice to Seller of any termination or cancellation thereof. Further, Buyer shall indemnify and hold harmless Seller from and against any cost, liability, damage or expense (including reasonable attorneys' fees), arising out of or relating to any claim by any third party for personal injury or property loss or damage in connection with Seller's access to Buyer's premises under this Agreement, including, without limitation, where such claim pertains to Seller's negligence or strict liability but excluding Seller's willful misconduct or deliberate wrongdoing.
4. Limitation of Liability
(a) Buyer acknowledges that there are hazards associated with the use of the product, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect its employees and others exposed to such hazards through Buyer's storage and use of the product. Seller shall provide Buyer with copies of Material Safety Data Sheets relating to the product for Buyer to make such warnings, and Buyer shall hold harmless, indemnify and defend Seller from and against any liability incurred by Seller because such warnings were not made. Buyer assumes all risk and liability for loss, damages or injury to persons or to property of Buyer or others arising out of the presence or use of the product ( save, in the case of liability for death or personal injury, where arising from Seller's negligence )or from the failure to make such warnings.
(b) Buyer acknowledges that it can obtain and install devices to sample the product delivered to determine its compliance with specifications prior to use. Buyer assumes responsibility to analyze product before use, and Seller shall have no liability if Buyer uses product that does not conform to the specifications.
(c) The liability of Seller for products and services covered by the warranty provided hereunder is limited solely to: (i) in the case of equipment, replacing, repairing or issuing credit for, at the discretion of Seller, the parts that are found during the warranty period to have been damaged or defective upon shipment, (ii) in the case of medical gases, industrial gases and chemicals, to replacing such defective product or reimbursing Buyer for whatever portion of the purchase price has been paid, at the discretion of Seller, and (iii) in the case of services, correcting Seller's workmanship or issuing credit for the fee paid to Seller, at the discretion of Seller, and repairing or replacing or issuing credit for, at the discretion of the Seller, defective materials provided by Seller in connection with such services; provided that, Seller will not be liable under the warranty provided hereunder with respect to equipment unless (i) Seller is promptly notified in writing by Buyer upon discovery of such damage or defect; (ii) the defective unit or part is returned to Seller, transportation charges prepaid by Buyer; (iii) the defective unit or part is received by Seller for adjustment no later than four (4) weeks following the last day of the warranty period; and (iv) Seller's examination of such unit or part shall disclose, to its satisfaction, that such defects or failures have not been caused by misuse, neglect, improper installation, unauthorized repair or alteration or accident. If the equipment manufactured by Seller consists primarily of parts manufactured by others, Seller will only make available for the Buyer's benefit those warranties which Seller has received from third party manufacturers. Any authorization of Seller for repair or alteration by the Buyer must be in writing to prevent voiding this warranty.
(d) NO CLAIM OF ANY KIND, WHETHER BASED ON DELIVERY OR NON-DELIVERY OF PRODUCT, THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, OR ON TORT (E.G., NEGLIGENCE, STRICT LIABILITY, ETC.) SHALL BE GREATER IN AMOUNT THAN TWICE THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT TO WHICH SUCH CLAIM RELATES OR THE FEE PAID FOR SERVICES TO WHICH SUCH CLAIM RELATES. Except for warranty claims for equipment sold as product hereunder, any claims by Buyer must be received by Seller in writing within 30 days of the date of delivery or non-delivery of product or performance of services; warranty claims for equipment sold as product hereunder must be received by Seller in writing within one year of the date of delivery. Failure to deliver notice of claim to Seller within the specified period will constitute a waiver by Buyer of all claims in respect of such delivery or non-delivery of product or performance of services. Products in saleable condition may be returned to Seller only after specific written authorization by Seller and will be subject to a minimum restocking and handling charge. Such products are to be returned freight prepaid to Seller's facility as designated in the above authorization.
(e) EXCEPT IN THE CASE OF SELLER'S WILLFUL MISCONDUCT OR DELIBERATE WRONGDOING, SELLER SHALL NOT BE LIABLE IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) FOR DIRECT (OTHER THAN COSTS OF REPAIR, REPLACEMENT OR CREDIT AS DESCRIBED ABOVE), SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL SELLER BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE PRESENCE OR USE OF ANY OF SELLER'S PRODUCTS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. Determination of the suitability of any of Seller's products furnished hereunder for the use contemplated by Buyer is the sole responsibility of Buyer and Seller shall have no responsibility in connection therewith. Buyer assumes all risk and liability for loss, damage or injury to persons or property of Buyer or others arising out of the use or possession of Seller's products. The warranty as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, the rendering of technical advice or service in connection with Buyer's order or the products furnished hereunder, but the above stated limitation of liability shall apply to such services.
(f) In providing services hereunder, Seller does not accept or assume liability for any defect in material or workmanship of equipment not manufactured by Seller or its affiliates, or for any condition or occurrence affecting the proper operation of equipment resulting from accident, negligence, abuse or misuse of the equipment, or any other cause whether or not similar to those described above.
5. Force Majeure
(a) Neither party hereto shall be considered in default in the performance of its obligations hereunder (other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with act of government and government regulations (whether or not valid), embargo, machinery or equipment breakdown, or due to any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of the party claiming excuse hereunder.
(b) Neither party hereto shall be required to make any concession or grant any demand or request to bring to an end any strike or other concerted act of workers.
(c) Either party affected by an event described in this section shall, promptly upon learning of such event and ascertaining that it has or will affect its performance hereunder, give notice to the other party, stating the nature of the event, its anticipated duration and any action being taken to avoid or minimize its effect.
(d) If any event within this Section shall only partially reduce Seller's ability to produce or deliver products or services, then Seller may prorate its available supply and resources among Buyer and Seller's other customers in a fair and equitable manner.
6. Delivery
(a) Delivery shall be F.O.B. Seller's manufacturing or distribution facility, or where applicable, Seller's delivery vehicle. All risk of loss shall pass to Buyer upon delivery.
(b) Unless otherwise agreed by Seller in the Agreement, transportation companies assume all liability for damage to goods from the time a shipment is received by them until the time it is delivered to the consignee and Seller's liability for such damage ceases at the time of shipment. All shipments leaving Seller's plant are carefully inspected. Promptly upon receipt of goods, Buyer should inspect the shipment. If a shipment arrives with the crating or packaging damaged, the Buyer should have the carrier note the condition on the receipt. Buyer should check as soon as possible for concealed damage. If Buyer discovers that the shipment has been damaged in transit, the damaged item should not be returned to Seller; rather Buyer should immediately notify and file a claim with the carrier. Buyer's failure to follow this procedure will result in refusal by the carrier to honor any claims with a consequent loss to Buyer. Goods should not be returned for credit or warranty of claims unless authorized by the factory. When authorized, Buyer should return the damaged item to Seller by the delivering carrier in accordance with Seller's instructions.
7. Payment Terms; Taxes
(a) Prevailing payment terms between Air Products and the Buyer will apply
(b) Buyer agrees that there will be added to the price of products and services supplied hereunder any excise, use, privilege, value added or sales tax, or any other tax or assessment (other than those based upon the net income or the net worth of the Seller) now or hereafter imposed by or under the authority of any federal, state or local law, rule or regulation with respect to the manufacture, sale, shipment or use of the product or rendering of services hereunder The Buyer expressly authorizes the Seller to collect and remit such taxes as may be required by any applicable laws. If the purchase of the product or service is exempt from sales or use tax, the Buyer shall furnish the Seller with a valid exemption certificate in form and content acceptable to the Seller. All payments of the contract price, including payments made with regard to the sale, shipment, use, or disposal of the product, the rendering of services, any indemnification payments, and any other payments made to the Seller pursuant to this Agreement, shall be made without any deduction or withholding and free of any taxes or similar charges that a federal, state or local authority may impose on the Seller or the Buyer on or with respect to any such payments. Seller reserves the right on its invoices to Buyer to correct misstatements or miscalculations of pricing or other charges that were made electronically, telephonically or otherwise, and such invoices shall be deemed final, absent manifest error.
8. Cylinders
(a) Any cylinders recorded on the delivery ticket given to Buyer at the time of delivery are the property of Seller and are loaned to Buyer subject to the terms and conditions hereof. Unless otherwise agreed to in writing, Buyer agrees to return said cylinders in good condition to Seller, with valves tightly closed. Buyer further agrees to pay Seller, as demurrage, an amount payable monthly for so long thereafter as the said cylinders shall be detained by the Buyer, which demurrage shall be computed in accordance with Seller's prevailing demurrage billing system.
(b) Buyer agrees to pay Seller, at Seller's then prevailing cost, for the loss, destruction or damage beyond repair of said cylinders or fittings resulting from any cause while such cylinders are on loan to Buyer. In the case of damage permitting repair, Buyer agrees to pay the actual cost of repair incurred by Seller, plus cost of necessary transportation. Demurrage referred to in the preceding paragraph will be applicable until the cylinder is returned, or, if the cylinder cannot be returned, until Seller is paid in accordance with this paragraph.
(c) Until such cylinders are returned, or until Buyer states in writing that Buyer is unable for any reason whatsoever to return such cylinders, Buyer shall be conclusively presumed to have possession or control of such cylinders.
(d) No claim that cylinders have been returned by Buyer will be honored unless Buyer holds a valid signed receipt on the form provided by Seller evidencing such return. The refilling of cylinders without Seller's consent in writing is prohibited.
9. Security Interest in Equipment Products
Notwithstanding any other provision hereof, with respect to equipment, title to any such products intended to be sold hereunder, including all accessories, other equipment and parts hereinafter attached or substituted, shall not pass to Buyer, and Seller shall have a security interest therein, until all unpaid sums are fully paid in accordance with Seller's pre-approved credit terms.
Seller's Cancellation of Delivery
Seller reserves the right to cancel a delivery of a product or service without liability to Buyer if in Seller's opinion the manufacture, sale or use of such product or the rendering of such service as such would violate applicable law or infringe any patent not held by or licensed to Seller.
10. Dispute Resolution
Any dispute between Buyer and Seller under this Agreement which cannot be resolved with reasonable promptness shall be referred to each party's senior manager in an effort to obtain prompt resolution. Neither party shall commence any action against the other until the expiration of 60 days from the date of referral to such senior managers; provided however, this shall not preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.