Terms & Conditions
Atlas Copco Compressors LLC
E-commerce website Terms and Conditions of Sale
(revised June 13, 2016)
1. General. 1.1. This E-commerce website Terms and Conditions of Sale document is hereinafter referred to as these “Terms and Conditions of Sale”. The term the “Website” refers to the website in which these Terms and Conditions of Sale are posted. “Seller” means Atlas Copco Compressors LLC. “Buyer” means the entity to which Seller’s offer is made, or the entity purchasing any Product or Service from Seller. Seller and Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.“Product” means any product, equipment, accessory, part, and/or any other type of item offered or sold by Seller to Buyer. “Service” means any installation, start-up, maintenance, inspection, adjustment, repair, and/or any other type of service or work offered or performed by Seller for Buyer.SELLER’S SALE OF ANY PRODUCT AND/OR SERVICE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS OF SALE.ANY ACCEPTANCE OF SELLER’S OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE.ANY TERMS OR CONDITIONS (PREVIOUSLY, CONTEMPORANEOUSLY, OR HEREAFTER) PROVIDED BY BUYER WHICH ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS AND CONDITIONS OF SALE ARE HEREBY EXPRESSLY OBJECTED TO.
1.3. THE WEBSITE IS NOT DIRECTED AT ANYONE OUTSIDE OF THE UNITED STATES.IN ADDITION, PRODUCTS AND SERVICES SHOWN, LISTED, OFFERED AND/OR SOLD THROUGH THE WEBSITE ARE NOT DIRECTED AT, OFFERED TO, SOLD TO, OR DELIVERED TO ANYONE OUTSIDE OF THE UNITED STATES, unless specifically agreed otherwise in writing by an authorized manager of Seller in connection with a particular order.. IN ADDITION, THE WEBSITE IS NOT DIRECTED AT INDIVIDUALS. SELLER DOES NOT OFFER, SELL, OR DELIVER TO INDIVIDUALS. THE WEBSITE IS A “BUSINESS TO BUSINESS” WEBSITE.
1.4. Buyer expressly represents and warrants that (a) Buyer is a company or other legal entity (not an individual) domiciled in the United States of America; (b) Buyer is not listed on any blocked or restricted person/entity list (or similar list) maintained by the United States Government, including but not limited to the Specially Designated Nationals (“SDN”) List at https://sdnsearch.ofac.treas.gov/ and/or any similar list (including but not limited to the Department of Commerce’s list of denied parties or the Department of State’s debarred parties); and (c) Buyer has not lost its privilege to make exports or receive them, and is not a party debarred or suspended from contracting with the United States Government.
1.5. Products, Services, technical data, technology, software, and any other items or information offered and/or sold by Seller to Buyer shall at all times be subject to any and all applicable export control laws and regulations, including but not limited to applicable U.S. Export Administration Regulations, United Nations resolutions and European Union directives relating to trade embargoes and restrictions. Buyer expressly agrees, represents, and warrants that no Product, Services, technical data, technology, software or other items or information or assistance or other item requested, ordered, obtained and/or purchased from Seller shall be directly or indirectly requested, ordered, obtained, purchased, exported (or re-exported), or used in violation of any law or regulation (including but not limited to any U.S. export regulation). Buyer further expressly agrees, represents, and warrants that Buyer shall neither violate nor cause Seller to violate the U.S. Foreign Corrupt Practices Act of 1977 (as amended). BUYER AGREES TO INDEMNIFY SELLER FROM ANY AND ALL COSTS, EXPENSES (including but not limited to reasonable attorney fees), LIABILITIES, PENALTIES, SANCTIONS, AND FINES INCURRED BY SELLER ARISING FROM BUYER’S NON-COMPLIANCE WITH THIS SECTION 1.5.
2. Order-related changes requested by Buyer. Any and all order-related changes requested by Buyer (whether with respect to changes in drawings, designs, specifications, material, packing, time and place of delivery, mode of transportation, or otherwise) are subject to Seller’s approval in writing. If any change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the order, an equitable adjustment shall be made to the price and/or delivery schedule. Unless agreed otherwise by the parties in writing, pricing for work arising from such changes shall be at Seller’s then-current applicable time and material rates/price.
3. Delivery. 3.1 Unless specifically agreed otherwise in writing by an authorized manager of Seller in connection with a particular order, Products manufactured, assembled or warehoused in the continental U.S. are delivered F.O.B. shipping point of origin, and Products shipped from outside the continental U.S. are delivered F.O.B. point of entry.
3.2. The ship-to-address indicated in connection with Buyer’s order is not allowed to be a “drop shipment” address or other third party address, unless specifically agreed otherwise in writing by an authorized manager of Seller in connection with a particular order.
3.3. All lead-times and all shipping/delivery dates are estimates only, and are among other things dependent upon availability of the Product in Seller’s warehouse, and prompt receipt by Seller of all necessary information and approvals from Buyer. In no event will the indicated lead-time or shipping/delivery period begin to run prior to Seller’s receipt of all necessary information, approvals and completion of all details deemed necessary by Seller for execution of the order. Seller reserves the right to deliver in installments. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, the risk of loss or damage shall pass to Buyer and delivery shall be deemed to be complete upon delivery to a private or common carrier or upon moving into storage, whichever occurs first, at the point of shipment for Products assembled, manufactured or warehoused in the continental U.S. or at the point of entry for Products shipped from outside the continental U.S.
3.4. Unless specifically agreed otherwise in writing by an authorized manager of Seller in connection with a particular order, Seller will not provide any installation, commissioning, startup, training or other on-site service in connection with Seller’s sale of any Product.
3.5. Buyer should conduct a visual inspection of the Product at the time the carrier arrives with the Product, and make appropriate notations on the carrier’s bill of lading/delivery ticket of any and all freight damage and/or shortages and notify the carrier and Seller. It is expressly understood that Buyer’s failure to take such steps may render claims for freight damage and/or shortages void. Unless agreed otherwise by Seller in writing, Buyer is responsible for filing/processing freight damage/shortage claims with the carrier.
4. Buyer’s Inspection. If Buyer fails to notify Seller in writing within two weeks (or within another time period specifically agreed upon by Seller and Buyer in writing in connection with a particular order) of receiving the Product of any alleged shortage, damage, or other nonconformity with respect to the Product, the Product shall conclusively be deemed to have been irrevocably accepted by Buyer as of the time that Buyer received it. Any rejection must be submitted to Seller in writing within two weeks of receiving the Product, and the writing must provide reasonable detail of the alleged non-conformities. Seller shall have reasonable opportunities to inspect the allegedly non-conforming Product (at Buyer’s facility, Seller’s facility, or a third party facility, all at Seller’s option), and to at Seller’s option (i) replace the non-conforming Product, or (ii) modify the non-conforming Product to make it conforming, or (iii) take back non-conforming Product and refund the purchase price thereof less a reasonable allowance for use. It is acknowledged that Buyer shall have no right to enter Seller’s facility (or any third party’s facility) to inspect or test the Product or to request Seller to conduct testing. However, if testing/inspection is specified and quoted by Seller in writing and thereafter agreed upon between the Parties in writing, Seller will conduct agreed upon tests and/or schedule agreed upon inspections/reviews by Buyer with respect to the Product. Seller expressly reserves the right to charge Buyer for any such agreed upon tests/inspections (if any). Any such agreed upon test/inspection (if any) shall take place prior to shipment from the factory. The location of any such agreed-upon test/inspection (if any) shall be Seller’s (or Seller’s affiliate’s) applicable factory and the procedures/standards/criteria for the test/inspection shall be Seller’s normal applicable procedures/ standards/ criteria. Notwithstanding anything else, Buyer shall have no right to return any Product (whether in connection with any inspection and/or rejection, or otherwise) unless Seller, at its sole discretion, agrees in writing that the specific Product may be returned.
5. Price, Payment. All prices are stated by Seller in United States dollars.Unless specifically agreed otherwise in writing by an authorized manager of Seller in connection with a particular order, prices are ex-works and expressly do not include tax, packaging, loading, freight, unloading, transport insurance, assembly, installation, start-up, training, maintenance, travel costs, and/or other expenditures. Unless specifically agreed otherwise by Seller in writing in connection with a particular order, payment is due in full at the time that Buyer submits the order. If Buyer fails to pay any invoice when due (if applicable), Seller may defer deliveries under this or any other contract with Buyer, except upon receipt of satisfactory security for or cash in payment of any such invoice. Invoices shall be paid in full and Buyer shall not be entitled to deduct, set-off or to withhold payment. Amounts past due shall bear interest at the lower of the maximum rate allowed by law or one and a half percent (1.5%) per month. Failure on the part of Buyer to pay invoices when due shall, at the option of Seller, constitute a default in addition to all other remedies Seller may have under these Terms and Conditions of Sale, applicable law, and/or in equity. If, in the judgment of Seller, the financial condition of Buyer at any time prior to delivery does not justify the terms of payment specified, Seller may require payment in advance or cancel any outstanding order, whereupon Seller shall be entitled to receive reasonable cancellation charges. If Buyer delays shipment, payments based on date of shipment shall become due as of the date when ready for shipment. If Buyer delays completion of manufacture, Seller may elect to require payment according to percentage of completion. Equipment held for Buyer shall be at Buyer’s risk and storage charges may be applied at the discretion of Seller. Seller expressly reserves the right to cease all work on the order if payment is not received when due.
Export Shipments. In the event Seller agrees to export any Product, all export shipments by Seller are subject to Buyer arranging for an irrevocable Letter of Credit in favor of Seller from a recognized United States bank, unless expressly agreed otherwise. It is expressly agreed that all Letters of Credit shall: (a) be acceptable to Seller; (b) be maintained in sufficient amounts and for the period necessary to meet all payment obligations; (c) be irrevocable; and (d) be issued or confirmed by a financial institution acceptable to Seller. Notwithstanding anything else, in the event Seller is not able to in a timely way obtain an export license (if required) in connection with Seller exporting a Product, Seller’s delay shall be excused, and Seller expressly reserves the right to cancel the order.
6. Taxes. Taxes are not included in the price, unless the price indicated by Seller specifically lists such tax as a line item.Buyer is responsible for any and all applicable taxes (except any taxes on Seller’s income). If sales tax, use tax, or similar taxes in addition to any listed specifically as part of the stated purchase price are imposed upon Seller, Buyer agrees to pay the same or reimburse Seller. Seller will accept a valid exemption certificate from Buyer, if applicable.
7. Security Interest. Seller reserves and retains a security interest in the Product and the proceeds thereof until Buyer has paid Seller the full price. Seller shall have the rights and remedies of a secured party under the Uniform Commercial Code. Buyer authorizes Seller to file financing statements and to do any other proper act in perfecting Seller’s security interest in the Product, and agrees to execute at Seller’s reasonable request any and all documents required to be executed by Buyer to perfect Seller’s said security interest. The Product shall remain personal property, regardless of how affixed to any realty or structure. It is expressly agreed that until the price of the Product has been fully paid, Seller shall, in the event of Buyer’s default, have the right to repossess the Product.
8. Cancellation.8.1. Notwithstanding anything else, Seller expressly reserves the right to cancel Buyer’s order at any time at Seller’s sole discretion for any or no reason. Without limiting the generality of the foregoing, Seller may cancel an order regardless of whether Seller has received payment from Buyer. In the event Seller cancels an order after receiving payment, Seller will provide a refund subject to any and all amounts due from Buyer. Buyer has the right to cancel the order if Seller becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated (voluntarily or otherwise).In addition, Buyer has the right to cancel the order if Seller fails, within 30 days after receipt of written notice from Buyer specifying the material breach and intent to terminate, to commence and diligently pursue cure of the breach. It is acknowledged that Seller may suspend Seller’s performance in whole or in part immediately if Buyer fails to make any payments when due.
8.2. Except as set forth in Section 8.1, above, Buyer shall have no right to cancel a Product order (or a part of the order) unless Seller, at its sole discretion, agrees in writing that the specific order (or the part of the order) may be cancelled and Buyer pays cancellation charges in accordance with Seller’s cancellation charge policy. The cancellation charges may include, among other things, all costs and expenses incurred, and to cover commitments made, by Seller, and the fee shall not exceed the Product’s purchase price.
9. Returns.Buyer shall have no right to return any Product unless Seller, at its sole discretion, agrees in writing that the specific Product may be returned. If Seller agrees that Buyer may return the Product, Seller will issue a Return Material Authorization number to Buyer, and Buyer must include such Return Material Authorization number with the return. All such returns must be in accordance with Seller’s instructions (including but not limited with respect to condition of the Product, shipping, and re-stocking fees, if applicable).
10. Scope of Service.10.1. Unless specifically agreed upon by Seller and Buyer in writing, Seller will not perform installation, startup, maintenance, training or any other Service.Any and all Service to be performed by Seller shall be scheduled and confirmed with Seller’s service department.Seller’s performance of Service is subject to Seller’s normal working hours (8:30 am to 5:00 pm, Monday through Friday excluding public holidays), unless expressly agreed otherwise. If any forklift, crane, and/or other lifting or rigging equipment or lighting equipment is necessary (as reasonably determined by Seller’s service technician) for Seller to perform Service on Buyer’s premises, Buyer shall supply such equipment at its own expense together with sufficiently skilled and qualified labor in connection therewith, unless expressly agreed otherwise. If Seller will provide any Service, the scope of work of the Service is limited to the agreed-upon service activities specified in Seller’s written service quotation and any changes thereto mutually agreed between Buyer and Seller in writing. Only the agreed-upon Product or other equipment identified by serial number (or by another agreed-upon method of identification) in Seller’s written quotation is included in the scope of work of Service.
10.2. It is expressly understood and agreed that the Service (if any) to be provided by Seller is ancillary to, and not a substitute for, Buyer’s full compliance with the Product’s/equipment’s manual (including but not limited with respect to daily and weekly inspection/maintenance), accompanying labels, inserts and other applicable documents by the manufacturer in addition to specific recommendations (if any) to Buyer by Seller’s Service technician. For example, if Seller will provide preventative maintenance, such service is not a substitute for Buyer’s compliance with any daily or weekly or other routine maintenance instructions contained in the Product’s/equipment’s manual.
11. Seller’s Insurance.Seller’s insurance obligations shall be as follows. Seller shall have insurance coverage if Seller’s personnel or representatives will be physically present on Buyer’s premises (or anywhere else), and such insurance coverage shall be as follows:
- Commercial General Liability insurance in an amount of $2,000,000 each occurrence for bodily injury and physical damage to tangible property, subject to an annual aggregate not to exceed $5,000,000;
- Automobile Liability insurance in an amount of $2,000,000 combined single limit each occurrence;
- Worker’s Compensation insurance in accordance with applicable statutory law; and
- Employer’s Liability insurance in an amount of $1,000,000 for bodily injury each accident or disease.
At Buyer’s reasonable request, Seller shall provide an ACORD form of certificate confirming the above-stated insurance coverage. Seller shall have no other insurance-related requirement, unless specifically agreed to in writing by an authorized manager of Seller at Seller’s headquarters. Seller shall not be required to add Buyer or any third party as an additional insured to any insurance policy or to waive subrogation, unless specifically agreed to in writing by an authorized manager of Seller at Seller’s headquarters. Any agreement by Seller to name Buyer as an additional insured on Seller’s insurance policy shall be applicable only to Seller’s above-mentioned Commercial General Liability insurance policy and shall be subject to ISO CG 20 10 Additional Insured Endorsement Form, July 2004 edition. Any agreement by Seller to waive any rights of subrogation is subject to the condition that Buyer carries comparable insurance coverage and likewise waives all rights of subrogation.
12. Warranty.Seller warrants that any and all Products delivered by Seller under this order are delivered free of defects in design, material and workmanship. Unless specified otherwise in writing by an authorized manager of Seller in connection with a particular Product order, the above-stated warranty shall expire fifteen (15) months from the date of shipment from Seller to Buyer or twelve (12) months from date of initial start-up of the Product, whichever expires first. Notwithstanding the foregoing, in the event the Product is a part (spare part/ replacement part), the above-stated warranty shall expire ninety (90) days from the date Buyer receives the part, unless specified otherwise in writing by an authorized manager of Seller in connection with a particular Product order. The warranties herein expressly excludes the effects of normal wear and tear. In the event Buyer and Seller have agreed that Seller will provide installation, start-up or other service in connection with the order, Seller warrants that the service will be performed in a workmanlike manner; this warranty shall expire forty-five (45) days after the service is performed.
If Products do not meet the above-stated warranties, Buyer shall promptly within the applicable above-stated warranty period notify Seller in writing. Subject to this warranty, Seller will replace or (at Seller’s option) repair the defective Product. At Seller’s sole discretion, Seller may (if so decided by an executive officer at Seller’s headquarters) take back any defective Product and refund (or credit) monies paid by Buyer to Seller for the defective Product less a reasonable allowance for use, in lieu of repair or replacement. Seller will determine at its sole discretion which of the above-mentioned options (repair, replacement, refund, or credit) Seller will take.
Some examples of conditions NOT covered by the warranty are failures or defects in the Product caused by: accident, abuse, neglect, Acts of God, corrosion, normal wear and tear, improper installation, improper storage, failure to perform proper maintenance at the proper frequency in accordance with the Product’s instruction manual, improper use, the use of unsuitable parts or attachments, the use of contaminated fuel, the use of fuels, lubricants, oils, or fluids other than those recommended in the Product’s manual, and unauthorized modifications.
Seller warrants that service performed by Seller is performed in a workmanlike manner; unless specified otherwise by Seller in its written quotation, this warranty shall expire forty-five (45) days after the date Seller performs the particular service activity. If Seller provides parts in connection with the service, Seller warrants that the parts are free of defects in design, material and workmanship; this warranty shall expire ninety (90) days from the date Seller provides such part, unless specified otherwise by Seller in its written quotation. If service (and/or parts provided in connection therewith) does not meet the above-stated warranties, Buyer shall promptly within the applicable above-stated warranty period notify Seller in writing. Seller shall at its option (i) re-perform the non-conforming portion of the service and (if applicable) repair or (at Seller’s option) replace the nonconforming part, or (ii) provide a refund or credit allocable to the nonconforming portion of the service/part.Seller will determine at its sole discretion which of the above-mentioned options (re-performance, repair, replacement, refund, or credit) Seller will take.
If the nature of the nonconformity is such that it is appropriate in the judgment of Seller to do so, repairs shall be made at the site of the defective Product/service. Repair or replacement under applicable warranty shall be made at no charge for replacement parts, F.O.B. Seller Warehouse, warranty labor, serviceman transportation and living costs, when work is performed during normal working hours (8 a.m. to 5:00 p.m. Monday through Friday, exclusive of holidays). Labor performed at other times will be billed at the overtime rate then prevailing for services of Seller personnel.Warranty repair or replacement or re-performed service shall not extend or renew the original warranty period; such Products or parts or service shall remain under warranty only for the unexpired portion of the original warranty period. Replaced Products/parts become the property of Seller.Seller warrants that Seller has good and marketable title to the Products delivered by Seller.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (WRITTEN, ORAL, IMPLIED, OR OTHERWISE), AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. CORRECTION OF NONCONFORMITIES (i.e. warranty repair or replacement or refund or credit, all at Seller’s option, of Products that do not conform to the Product warranty above, and re-performance or refund or credit, all at Seller’s option, of service that does not conform to the service warranty above) IN THE MANNER AND WITHIN THE APPLICABLE WARRANTY PERIOD SET FORTH ABOVE PROVIDES THE EXCLUSIVE REMEDIES WITH RESPECT TO THE QUALITY OF OR ANY NON-CONFORMITY IN PRODUCTS OR SERVICES DELIVERED OR PERFORMED HEREUNDER.
13. Software. In the event the Product and/or Service contains or otherwise includes software, the software shall remain the proprietary property of Seller (and/or its affiliates or other third parties who are Seller’s licensors, if applicable), and in no event shall title thereto be sold or transferred to Buyer. In the event a Product and/or Service supplied hereunder contains or otherwise includes software, the following shall apply: (i) subject to Buyer complying with these Terms and Conditions of Sale, Buyer is granted a non-exclusive, non-transferable license to properly use the software in machine readable object code form only; (ii) any license so granted is limited to the proper use of the Product/Service containing the software only in the manner authorized by Seller; and (iii) Buyer shall not sublicense the software to any other entity nor assign its license rights. Notwithstanding the above, in the event Buyer transfers (in compliance with any and all applicable laws and regulations) title to any Product containing the software, the license granted hereby shall transfer to Buyer’s transferee. Any license granted hereunder shall continue: (i) until terminated in accordance with this agreement, or, (ii) for the useful life of the Product/Service in which the software is embedded or is otherwise an integral part, or, (iii) for the useful life of the software, whichever is shorter. Any modification, alteration, or removal or unauthorized use of any software contained in any Product/Service constitute a breach of this agreement and shall automatically terminate any license granted hereby. Buyer shall not (and shall not permit any third party to) create derivative works based on the software, or reverse engineer, or disassemble or decompile the software, or transfer, copy, or modify, the software. In the event a separate written applicable Seller-provided Software License is provided with the Product/Service, specified in Seller’s quotation, and/or otherwise communicated to Buyer, then the software shall be governed, in order of precedence, by the terms of the separate Software License and then by any non-conflicting terms hereof.
14. Intellectual Property. No patents, copyrights, trademarks, or other intellectual property is being sold, assigned, or otherwise transferred to Buyer.It is expressly acknowledged that Seller retains all right, title and interest in and to all inventions, discoveries, ideas, works of authorship, processes, methods, know-how, and techniques developed, discovered or conceived by Seller or its employees, including without limitation those developed and/or used in connection with the manufacture of Products or performing Services hereunder. No drawings, designs, specifications, or anything else provided by Seller shall be deemed to be “work made for hire” as that term is used in connection with the U.S. Copyright Act.
15. Intellectual Property Indemnity.Seller agrees to defend and indemnify Buyer against any claim by any third party alleging that any Product or Service (furnished by Seller to Buyer hereunder) infringes any United States patent, trademark, trade dress, or copyright, provided that Buyer (i) promptly notifies Seller in writing of the claim and provides Seller with a copy of the claim; (ii) gives Seller full authority to control the defense and settlement of the claim; and (iii) provides Seller with full information and reasonable assistance at Seller’s expense.Seller shall ensure that no such settlement intending to bind Buyer shall be entered into without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed.Buyer shall be permitted to participate in the defense and settlement with counsel of its own choosing at its own expense. In case the Product/Service, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, Seller will, at Seller’s option and expense, either: (i) procure for Buyer the right to continue using said Product/Service; or (ii) replace the Product/Service with substantially equivalent non-infringing Product/Service; or (iii) modify the Product/Service so it becomes non-infringing; or (iv) take back the infringing Product/Service and refund or credit monies paid by Buyer to Seller for such infringing Product/Service less a reasonable allowance for use. Seller will have no duty or obligation to Buyer under this Section to the extent that the Product/Service is (i) supplied according to Buyer's design or instructions wherein compliance therewith has caused Seller to deviate from Seller’s normal designs or specifications, (ii) modified, (iii) combined with items, systems, methods, or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a claim is brought against Buyer. If by reason of such design, instruction, modification or combination, a claim is brought against Seller, Buyer shall protect Seller in the same manner and to the same extent that Seller has agreed to protect Buyer under the provisions above in this paragraph.THIS PARAGRAPH STATES SELLER’S AND ITS AFFILIATES’ EXCLUSIVE LIABILITY FOR INFRINGEMENT OF ANY THIRD PARTY’S PATENT, TRADEMARK, TRADE DRESS, AND/OR COPYRIGHT.
16. Confidentiality.Each Party (as to information disclosed, the “Disclosing Party”) may each disclose Confidential Information to the other Party (the “Receiving Party”) in connection with this order/contract and/or performance hereunder. “Confidential Information” means information related to the business, products, or services of the Disclosing Party that is not generally known to the public. The Receiving Party agrees: (i) to use the Confidential Information only as the Disclosing Party intended it to be used by the Receiving Party in connection with the order/contract, and (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties.Upon the Disclosing Party’s request, the Receiving Party shall destroy or return to Disclosing Party all copies of Confidential Information. The obligations of this Section 16 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or affiliates, (ii) is independently developed by the Receiving Party, its representatives or affiliates, without reference to or use of the Confidential Information, (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party when the source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party; or (iv) is required to be disclosed by valid legal process or law provided that the Receiving Party who intends to make such disclosure shall promptly notify the Disclosing Party prior to such disclosure and shall reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information. It is expressly agreed that this Section 16 survives any expiration/termination of the order/contract.
17. Tooling. Any and all tooling, fixtures, dies, molds, patterns and other materials used by Seller (or, if applicable, an affiliate of Seller who manufactures the Product) to produce the Products are and shall remain the property of Seller (or of Seller’s affiliate, if applicable). Seller is not selling any such tooling, fixtures, dies, molds, patterns, etc. to Buyer. Buyer is not providing Seller any such tooling, fixtures, dies, molds, patterns, etc., unless specifically agreed by the parties in writing signed by hand by authorized managers of the parties (in which case Buyer will retain any ownership rights Buyer has in the items provided to Seller).
18. Force Majeure.If Seller is not able to perform or is delayed due to any cause beyond its reasonable control (including but not limited to acts of God, strike or other concerted action of workmen, act or omission of any governmental authority, act of war or terrorism, act of the public enemy, embargo, delays of carriers, or delays by Seller’s usual suppliers), the time of performance will be extended by the amount of time reasonably sufficient to make up for the delay.
19. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE, THE TOTAL LIABILITY, IN THE AGGREGATE, OF SELLER (ARISING FROM OR RELATED TO THE PRODUCTS, SERVICES, ORDER, AND/OR CONTRACT, INCLUDING BUT NOT LIMITED TO PERFORMANCE OR BREACH THEREOF) SHALL BE LIMITED TO THE ACTUAL PURCHASE PRICE AMOUNT PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM (REGARDLESS OF WHETHER SUCH DAMAGES ARE CHARACTERIZED AS ARISING OUT OF BREACH OF WARRANTY, TORT, CONTRACT, OR OTHERWISE). ALL CAUSES OF ACTION AGAINST SELLER ARISING FROM OR RELATED TO THE CONTRACT OR THE PERFORMANCE HEREOF SHALL EXPIRE UNLESS BROUGHT WITHIN ONE YEAR OF TIME OF ACCRUAL THEREOF. For purposes of this Section, the term “Seller” means Atlas Copco Compressors LLC, its affiliates, suppliers, and subcontractors, and their respective employees/agents.
20. No Consequential Damages, etc. NOTWITHSTANDING ANYTHING ELSE, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF TOTAL OR PARTIAL USE OF PRODUCTS OR SERVICES, DOWNTIME COSTS, AND DELAY COSTS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE (REGARDLESS OF WHETHER SUCH DAMAGES ARE CHARACTERIZED AS ARISING OUT OF BREACH OF WARRANTY, TORT, CONTRACT, OR OTHERWISE). For purposes of this Section, the term “Seller” means Atlas Copco Compressors LLC, its affiliates, suppliers, and subcontractors, and their respective employees/agents.
21. U.S. Government Contracts. If the Products and/or Service are to be used in the performance of a U.S. Government contract or subcontract, Buyer expressly agrees to notify Seller in writing in connection with Buyer’s order.Further, if the Products and/or Service are to be used in the performance of a U.S. Government contract or subcontract, only those clauses of the applicable U.S. Government procurement regulations which are mandatorily required by federal statue to be included in this order/contract shall be incorporated herein by reference.
22. Equal Employment Opportunity Requirements.If applicable to this agreement, Seller and Buyer shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
23. Miscellaneous. 23.1. Typographical and/or clerical errors in Seller’s quotations are subject to Seller’s correction.
23.2. Buyer’s issuance of a purchase order or Buyer’s receipt of any Product from Seller shall (without prejudice to any other manner in which acceptance of these Terms and Conditions of Sale may be evidenced) constitute Buyer’s assent to these Terms and Conditions of Sale.
23.3. THESE TERMS AND CONDITIONS OF SALE CONTAIN THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO TERMS AND CONDITIONS OF SALE IN CONNECTION WITH THE WEBSITE AND SUPERSEDE ALL PREVIOUS OR CONTEMPORANEOUS STATEMENTS, AGREEMENTS, AND REPRESENTATIONS WITH RESPECT TO TERMS AND CONDITIONS. This agreement cannot be superseded, amended, or modified except by an applicable negotiated agreement signed in handwriting by a company officer of Seller and an authorized representative of Buyer. Any purchase order issued by Buyer to Seller is for Buyer’s internal purposes and no term or condition stated in such document shall modify these Terms and Conditions of Sale. Seller’s execution of any document issued by Buyer shall constitute only an acknowledgment of receipt thereof, and shall not be construed as an acceptance of any of the terms or conditions therein that differ from, conflict with, or add to these Terms and Conditions of Sale. No modification or additional term or condition shall be applicable to these Terms and Conditions of Sale by virtue of Seller’s past, present, or future receipt, acknowledgment or acceptance of Buyer’s purchase order (whether or not signed by Seller), shipping instruction forms, or other Buyer documentation containing terms or conditions which are different from or in addition to the ones set forth in these Terms and Conditions of Sale. Failure of Seller to object to terms and conditions provided by Buyer shall in no event be construed as an acceptance of any terms and conditions of Buyer. Neither Seller’s commencement of performance nor Seller’s delivery shall be deemed or constituted as acceptance of any of Buyer’s terms and conditions
23.4. Neither Party shall assign or transfer the contract without the prior written consent of the other party (which consent shall not be unreasonably withheld); any purported assignment in violation of this sentence shall be void. Irrespective of the foregoing, Seller may without consent assign the contract (or any of rights or obligations hereunder) to any of its affiliates and/or use sub-contractors.
23.5. The provisions of these Terms and Conditions of Sale are severable and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. In addition, if any provision of these Terms and Conditions of Sale (or portion thereof) is determined by a court to be unenforceable as drafted by virtue of the duration, scope, extent, or character of any obligation contained herein, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
23.6. Neither party’s failure to enforce, or its waiver of a breach of, any provision contained in these Terms and Conditions of Sale shall constitute a waiver of any other breach or of such provision.
23.7. All headings, captions and numbering in this document are for convenience of reference only and shall not be used to interpret any meaning of any terms or condition.
23.8. The validity, performance, and all other matters arising out of or relating to the interpretation and effect of these Terms and Conditions of Sale and/or the contract shall be governed by and construed in accordance with the internal laws of South Carolina without giving effect to any choice or conflict of law provision or rule (whether of South Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of South Carolina. Any legal suit, action or proceeding and all other matters arising out of or relating to the interpretation and effect of these Terms and Conditions of Sale and/or the contract shall be instituted in a court (federal court or state court) sitting in South Carolina, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action, suit, or proceeding. Notwithstanding the foregoing, Seller shall have the right at any time (at its option and where legally available) to immediately commence a legal suit, action, or proceeding in any court of competent jurisdiction (in any State or country) in order to seek an injunction or similar order to enforce the confidentiality provisions set forth in Section 16 above (entitled “Confidentiality”), to enforce or protect intellectual property rights or trade secrets, and/or to enforce the provisions of Section 5 above (entitled “Price, Payment).
23.9. Seller and Buyer expressly agree that the United Nations Convention on International Sale of Goods shall not apply.
23.10. The parties are independent contractors under this Agreement and no other relationship is intended including, without limitation, any partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or any other special relationship.
23.11. All rights and obligations contained in these Terms and Conditions of Sale, which by their nature or effect are required or intended to be kept, observed, or performed after the termination or expiration of the order/contract will survive and remain binding upon and for the benefit of the parties, their successors, and permitted assigns.