1. AGREEMENT OF SALE. Purchaser (the “Purchaser”) agrees to buy gas (“the Goods”) from Industrial Source, Cryo Source, National Fire Fighter, or National Fire Fighter Wildland (the “Company”) on the terms set forth below (the “Agreement”). The Goods come in containers (“Cylinders”) that are not subject to sale and shall be leased from the Company by the Purchaser pursuant to the terms set forth below in Section 2 (the “Cylinder Lease”). All sales and rentals by Company to Purchaser under this Agreement are expressly conditioned upon acceptance of the terms and conditions contained herein as the exclusive terms and conditions. Company hereby objects to any contrary or additional provision in any communication from Purchaser to Company, and Company's failure to object to any specific provisions contained in Purchaser's purchase order or other communications which are in conflict with, or in addition to the provisions contained herein, shall not be deemed a waiver of the terms or conditions set forth herein, nor as acceptance of such Purchaser's provisions. All modifications to this Agreement shall be in writing. By signing the Picking Ticket, the Purchaser accepts the Goods and the Cylinders and agrees that it has had a reasonable opportunity to inspect the same. The parties stipulate to the place, time and method of inspection of the Goods and the Cylinders as follows: (1) Place –the location where the Purchaser receives the Cylinders and Goods; (2) Time – immediately upon Purchaser’s receipt of the Cylinders and the Goods; and (3) Method - inspection by Purchaser’s agent present at the time of receipt of the Goods and Cylinders. Notwithstanding the previous two sentences, both parties agree that a reasonable time for inspection and rejection of the Goods and the Cylinder shall not be longer than twenty-four hours from the time the Purchaser received the Goods and the Cylinders.
2. CYLINDER LEASE. The term of the Cylinder Lease shall be: (1) if the Cylinder Lease is for an agreed upon period of time, from the date the Purchaser receives the Cylinders until the Cylinders are picked up by Company or delivered to the Company by the Purchaser; or (2) if no set period of time has been agreed upon, on a month-to- month basis with the first day of the term commencing on the first day of the month in which the Purchaser receives the Cylinders and terminating on the first day of the month after the Cylinders are returned to the Company. The Cylinders shall only be used to store the Goods provided by the Company. No other uses are permitted, such prohibitions include, but are not limited to, filling the Cylinders with any other substance. Purchaser agrees to timely return the Cylinders, and all fittings thereof, in usable condition and repair to the Company. Purchaser agrees to return all empty Cylinders with valves closed and Cylinder caps fixed securely in place. Purchaser is liable for any damage to the Cylinders occurring during the Cylinder Lease term. If, after demand is made by the Company, Purchaser is not able to return the Cylinder(s) to the Company, Purchaser is liable to the Company for all replacement costs. All Cylinder Lease payments are due within 30 days of the Cylinder Rental Invoice Date. Purchaser shall prepay for any applicable shipping charges within 30 days from the date of shipment to the Purchaser. If Purchaser fails to pay Cylinder rental charges when due, Company may terminate the Cylinder Lease and is authorized to come on to the Purchaser’s property and recover the Cylinders, without notice or demand and without waiving the Company’s other rights or remedies under the law. Unless expressly agreed to by the Company, assignment or sublease of the Cylinder Lease is prohibited. Personal property taxes on Cylinders in the possession of the Purchaser are the responsibility of the Purchaser. Purchaser has 30 days from receipt of the Cylinder Rental Invoice to dispute its Cylinder Balance. After 30 days, the Cylinder Balance stated in the Cylinder Rental Invoice shall be deemed stipulated to by Purchaser.
3. TERMS OF PAYMENT/SECURITY AGREEMENT. Payment in full as provided in the Picking Ticket is due within 30 days from the date stated on the Picking Ticket. All sums due under this Agreement, including sums due under the Cylinder Lease and the Picking Ticket, shall bear a finance charge of 2% per month when payment is greater than 20 days past due, 2½% per month when greater than 50 days past due, and 3% per month when greater than 80 days past due. There is a MINIMUM SERVICE CHARGE of $15 for all accounts past due. All prices quoted by the Company are exclusive of all city, state and federal excise taxes, including, but without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. To secure Purchaser’s obligations under this Agreement, Purchaser grants Company a purchase money security interest in the Goods, equipment, fixtures and inventory purchased or leased from the Company, whether now owned or hereafter acquired, and whether now existing or hereafter arising, and wherever located, and in all products and proceeds thereof. The Company may take any and all action necessary or desirable to perfect its security interest.
4. FORCE MAJEURE/RISK OF LOSS. The Company’s best efforts will be made to meet promised shipping/completion dates. However, where change in shipping or completion dates is necessary, the Company will advise the Purchaser. The time of delivery named by the Company is the date for shipping from our plants or warehouses. We will not be liable for delays in delivery or completion of orders caused by any reasons beyond our control such as acts of God (ex: fire, flood, earthquake, storm, hurricane or other natural disaster), war, labor disputes, civil disturbances, delays/shortages in our usual source of supply or delays in transportation. The Company is not responsible for damage to or loss of the Goods and Cylinders after delivery to the Purchaser. If the Purchaser picks up the Goods and/or the Cylinders from the Company, the Company is not responsible for damages to or loss of the Goods or Cylinders after Purchaser receives the same.
5. WARRANTY. The Company warrants that the Goods shall comply with the Compressed Gas Association standards and the Cylinders shall be in usable condition. It is expressly agreed and understood that the Company’s SOLE LIABILITY AND Purchaser’s SOLE REMEDY FOR A BREACH OF WARRANTY IS REPAIR AND REPLACEMENT OF THE DEFECTIVE GOODS OR THE DEFECTIVE CYLINDERS. The parties agree that, regardless of the nature of or legal basis for any claim, including negligence, the COMPANY WILL NOT BE LIABLE TO PURCHASER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES of any kind, including but not limited to loss of use, income, profit or production, claims of customers, or costs of mitigation or cover. THE WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. HAZARD AWARENESS. Company shall make available to Purchaser an informational handout specific to the hazards of odorless Goods (“Hazard Awareness Information”). Purchaser agrees that it has read and understands, and will follow and abide by, all of the instructions in the Hazard Awareness Information. If Purchaser does not have the Hazard Awareness Information, call Company’s customer service and request another copy.
7. INDEMNITY. Purchaser shall indemnify and hold Company harmless from any loss, damage, liability, claim, or expense (including attorney fees) arising out of (a) Purchaser’s breach of this Agreement or (b) Purchaser’s possession, storage, handling, and use of the Goods and Cylinders, including, but not limited to, injury to or death of persons or damage to or destruction of property, unless the loss arises out of the sole negligence of Company, its employees, agents, or assigns.
8. DISPUTE. The exclusive jurisdiction and venue for disputes arising out of, related to, or in connection with this Agreement, including the Cylinder Lease, shall be in the Circuit Court of the State of Oregon for Lane County. Each party consents and submits to the jurisdiction of any local, state, or federal court located in Lane County, Oregon for any purposes under this paragraph. This Agreement shall be governed by Oregon’s Uniform Commercial Code and otherwise interpreted and construed in accordance with the applicable laws of the State of Oregon. If the Company engages an attorney for collection of any amount due under this Agreement, Purchaser agrees to pay Company’s reasonable collection costs, including reasonable attorneys’ fees, even if no legal proceeding is filed. In the event that it becomes necessary for the Company to initiate litigation of any type, the prevailing party shall be entitled to all reasonable attorneys’ fees, including fees on any appeal, costs of reasonable discovery, deposition, expert witness fees, and arbitration, trial or costs and disbursements allowed by law.
9. CANCELLATION/LEGALITY. A contract or order may not be canceled by the Purchaser once the Goods have been delivered to the Purchaser unless the Company, at its sole option, agrees in writing to Purchaser's cancellation of the contract. If any term, clause or provision, of this Agreement is found to be illegal, invalid or unenforceable, this shall not affect the validity of any other term, clause or provision of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their successors, and their assigns, to the extent this Agreement is assignable by its terms, but neither party shall be relieved of its obligations hereunder by assignment of the agreement.