TERMS & CONDITIONS OF SALE
These terms and conditions, along with those contained in the applicable Delivery Ticket(s) with Spec Air, represent the entire agreement (the “Agreement”) between Customer and Spec Air with regard to Customer’s purchases of gas, equipment, goods, and/or merchandise (collectively the “Goods”) from Spec Air. All such transactions are subject to the terms and conditions of this Agreement, which apply to any purchase orders or agreements submitted by Customer to purchase Goods from Spec Air, whether or not contained in each invoice or delivery notice from Spec Air. Any additional or different non-financial terms and conditions contained in any Customer documentation are not accepted by Spec Air. There are no collateral, oral, or other agreements or understandings, unless expressly agreed to in writing by Spec Air. Spec Air reserves the right to accept or reject any order.
This Agreement will also apply to and be enforceable by Customer and Spec Air with respect to any and all Goods, which are substituted for or replaced by Spec Air for the Goods originally delivered under this Agreement.
This Agreement cannot be altered, changed, or waived except in writing by Spec Air.
TITLE
Customer understands and agrees that title to Goods remains in Spec Air until such time as said Goods are paid in full.
WARRANTIES-DISCLAIMER
All Goods will conform to the standard specifications established by Spec Air, and comply with applicable compressed gas association standards required by law. Customer is not authorized to extend Spec Air warranty to any third party and Spec Air makes no warranty whatsoever with respect to Goods manufactured by others. Spec Air makes no other warranty of any kind whatsoever, express or implied, and all implied warranties of merchantability and fitness for a particular purpose are hereby disclaimed and excluded from all transactions. No agent, employee, or representative of Spec Air has any authority to bind Spec Air to any representation or warranty relating to the Goods other than those specifically provided in this Agreement.
USE RESTRICTIONS
Goods are potentially dangerous and are intended only for use by persons trained and qualified in the use, maintenance, and operation of commercial, industrial, and related equipment, supplies, and procedures.
LIABILITY
Customer assumes all liability for damages, including reasonable attorneys’ fees and costs, arising out of or from or related to any accident caused by or incurred in the ownership, use, storage, maintenance, or transportation of the Goods. Customer agrees to indemnify, defend, and hold harmless Spec Air, its officers, employees, subcontractors, and agents from and against any and all damages and liabilities to any person whomsoever arising out of or from or related to the ownership, use, storage, maintenance, or transportation of the Goods sold to it.
LITIGATION
In the event of litigation, the prevailing party shall be entitled to reasonable attorney’s fees and costs incurred by it. Maine law governs this Agreement. Customer agrees that any action relating to this agreement shall be brought to Maine courts and consents to their jurisdiction.
LIMITATION OF LIABILITY
Under no circumstances will Spec Air be liable for any incidental or consequential damages. The liability of Spec Air for defective or undelivered Goods will be limited solely, in Spec Air discretion, to replacing the Goods or granting Customer a credit or refund in the amount of the contracted price of the Goods. Spec Air shall not be liable to Customer or any other person for damage, loss, injury, or expense, whether direct, special, or consequential, and whether in the form of personal injury, pecuniary loss, increased expense, or otherwise. The remedies provided for in this Agreement shall be exclusive and the sole remedies of Customer.
RETURNED GOODS
The original invoice must accompany all returned Goods.
RESTOCKING
Restocking & handling charges will be assessed on regularly inventoried Goods that are returned. Special order items are not subject to return.
CUSTOMER’S REPRESENTATION OF SOLVENCY
Customer represents to Spec Air that Customer has not ceased to pay its debts in the ordinary course of business, it can pay its debts as they become due, and it is solvent within the meaning of bankruptcy.
CLAIMS
All claims for defective material, shortages, and discrepancies are waived unless made in writing immediately after receipt of Goods.
NOTICE OF NON-WAIVER
The failure by Spec Air at any time to insist upon the strict performance by Customer of the covenants, conditions, and/or terms of this Agreement shall not be construed as a waiver of Spec Air right to demand strict compliance with and performance of all covenants, conditions, and/or terms of this Agreement. Customer hereby waives notice of demand for strict compliance, and time is expressly made of the essence of this Agreement.
ASSIGNMENT
Customer shall not assign or transfer this Agreement, any order, or Customer’s right to receive Goods from Spec Air without the prior written consent of Spec Air. This Agreement is binding upon the parties and their successors and permitted assigns.
PAYMENT; DISCLOSURE STATEMENT
Spec Air may charge any amount approved by its credit department, subject to the following conditions:
No FINANCE CHARGE will be charged if Customer’s account is paid within 30 days of invoice date. If not, a FINANCE CHARGE of 1.5% per month will be charged on all unpaid amounts. This is an ANNUAL PERCENTAGE RATE OF 18%. A MINIMUM FINANCE CHARGE of $3.00 will be assessed. Payments and credits will be applied first to the payment of finance charges, and the remainder, if any, will be applied to the payment of the principal amounts due.
Customer shall promptly reimburse Spec Air for any reasonable costs and/or attorney’s fees incurred by Spec Air in collecting payment due or enforcing this Agreement.