HYDAC TECHNOLOGY CORP. AND hYDAC CORP.
Terms and Conditions of Sale
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For all purposes hereof,
“HYDAC” shall mean, collectively, HYDAC CORP., and HYDAC TECHNOLOGY CORP., both
For all purposes hereof, "Buyer" shall mean the direct purchaser of the Goods.
These TERMS AND CONDITIONS OF SALE
(“Sale Terms”) shall apply to any and all sales of goods (“Goods”) by HYDAC.
Terms: All payments shall be due and
payable within thirty (30) days of the invoice date.
Any amounts payable to HYDAC hereunder, which are not paid within thirty
(30) days of the invoice date shall
thereafter bear interest at the rate of one and one-half percent (1.5%) per
month or the maximum amount permitted by
law, whichever is less.
Interest on overdue amounts shall be calculated from the original payment due
All delivery dates are approximate and are subject to change and
extension as HYDAC shall deem necessary and all Goods shall be packaged as
separately agreed to by the parties.
Except as otherwise agreed, delivery of all Goods shall be “Ex-Works” at HYDAC’s
designated facility. Buyer shall be
solely responsible for all transportation costs, insurance and risk of loss.
Each purchase order shall specify Buyer’s preferred routing.
Buyer will be solely responsible for all freight charges.
Buyer will pay all freight charges in accordance with the terms of
Buyer’s designated freight carrier, including without limitation, any advance
payments required by Buyer’s designated freight carrier.
Goods (Warranty Claim): See Section 2
of these Sale Terms for the return of Goods resulting from a warranty claim.
Buyer shall not be permitted to cancel any purchase orders submitted to
HYDAC except as follows: (1) HYDAC, in its sole discretion, provides prior
written approval of the cancellation to Buyer; and (2) Buyer pays a cancellation
charge of at least 25% of the
original purchase price of the canceled Goods (as
determined by HYDAC, in its sole discretion).
and Liability: Please refer to the
“HYDAC Limited Warranty and Limitation of Liability” and the “HYDAC Intellectual
Property Terms and Conditions”, respectively Section 2 and Section 3 of these
Limitation of Actions:
Any action for any loss or damage with respect to the Goods or services
covered hereunder must be commenced by Buyer within one year after Buyer’s cause
of action has accrued.
material costs increase by more than ten percent (10%), HYDAC reserves
the right to deliver notice of such cost increase to Buyer and to renegotiate
the product sales prices within a thirty (30) day period from the date of such
notice; provided that in the event that HYDAC and Buyer do not agree on the
renegotiated sales price within such thirty (30) day period, HYDAC shall have
the right to cancel the applicable purchase order(s) and be released from any
and all obligations and liabilities under such purchase order(s), including
without limitation any obligation to manufacture, deliver and supply the Goods
referenced therein, without penalty, payment, premium or other obligation or
liability of any kind.
HYDAC’s prices for the Goods do not include any sales, use, excise, or
any other taxes, or any other charges imposed by federal, state, local or
foreign governments on the manufacture, sale, shipment, import, export or use of
the Goods or service (other than income taxes) all of which shall be paid by
Buyer unless Buyer provides to HYDAC a tax-exemption certificate acceptable to
the relevant taxing authorities. Buyer
shall defend, indemnify and hold HYDAC harmless from and against all liabilities
for such taxes or charges and all attorney’s fees or costs incurred by HYDAC in
HYDAC Limited Warranty and Limitation of
For the limited purpose of this Limited Warranty
and Limitation of Liability, HYDAC CORP., and HYDAC TECHNOLOGY CORP., both
Pennsylvania corporations, are hereinafter referred to collectively as “HYDAC”.
However, HYDAC CORP. and HYDAC TECHNOLOGY CORP. provide this Limited Warranty
and Limitation of Liability in their individual capacity, on their own behalf
and separate from the other corporation. Each corporation is solely responsible
for its products and warranty, and any other obligation pursuant to any
agreement or otherwise. HYDAC CORP. or HYDAC TECHNOLOGY CORP. will not be
responsible for the obligations of the other company.
For purposes hereof, “Warranty Period” shall
mean: the shorter of:
(a) eighteen (18) months from the date of HYDAC’s shipment of the Goods
to the Buyer or (b) twelve (12)
months from the date the product is first placed in operation ; provided that
with respect to repairs made by HYDAC to Goods or any replacement Goods provided
by HYDAC pursuant to the limited warranty set forth herein, the Warranty Period
shall be the longer of: (i) any
remaining portion of the original Warranty Period applicable to such Goods as
set forth above or (ii) three (3) months from the repair date or replacement
HYDAC warrants that the Goods shall be free from
defects in material and workmanship, under normal use and service, during the
HYDAC will, at its option, refund the purchase
price, repair or replace any product, which under normal conditions proves to be
defective in material or workmanship during the Warranty Period.
No charge will be made for parts or for labor provided by HYDAC with
respect to defects covered by this warranty. However, this warranty does not
cover any costs, expenses or damages related to the removal and reinstallation
of any Goods, whether or not proven defective.
To obtain protection under this warranty, Buyer
must provide HYDAC with immediate written notice of the alleged defect in the
Goods along with the purchase receipt or other proof that the
Goods are within the Warranty Period.
HYDAC shall have no obligation for any defective
Goods unless and until: (1) HYDAC
has completed an inspection of the
Goods; (2) HYDAC has determined the existence of a defect during the Warranty
Period; and (3) HYDAC has issued a RGA # for the return of the Goods. Buyer
shall be obligated for all costs, expenses, charges and risk of loss for
shipment of the non-conforming product to HYDAC. However, shipping charges will
be credited to Buyer if and to the extent that HYDAC accepts the
Specifically excluded from this warranty are any
claims arising as a result of improper application, use, neglect, abuse, or
unauthorized service of parts or Buyer’s failure to comply with all
installation, operation and maintenance requirements and specifications set
forth in any operating manual for the Goods and other documentation related to
the Goods provided to Buyer by HYDAC.
and/or any affiliate or related company will not be liable under any
circumstances for any consequential, incidental, special, punitive, exemplary or
other damages (including, but not limited to, damages resulting from commercial
or economic loss) or costs and expenses (including, but not limited to,
attorneys’ fees and litigation costs), incurred as a result of any claim whether
based on breach of warranty or otherwise.
event shall HYDAC’s liability exceed the cost of repairing or replacing the
Goods which give rise to any claim or refunding the purchase price of the Goods
which give rise to any claim.
WARRANTY SET FORTH HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Any USE, sale, resale,
lease, assignment or other transfer of Goods is expressly subject to THE ABOVE
STATED HYDAC LIMITED WARRANTY AND
LIMITATION OF LIABILITY.
No attempt to alter, amend or extend this
warranty and limitation of liability shall be effective unless in writing and
signed by an executive officer of HYDAC.
HYDAC Intellectual Property Terms and Conditions
All trademarks, trade names, or other identifying marks (collectively referred
to as the "Marks") now or hereafter registered or used by HYDAC are its property
and Buyer's use of these Marks must be approved in advance in writing by HYDAC
and shall be limited to use on or in connection with HYDAC's products.
HYDAC reserves the right to review, approve or restrict the use of all
printed materials bearing any HYDAC Marks. Buyer shall, under no circumstances
use any HYDAC Marks as part of a corporate name.
If Buyer is required to register under any statute for registration of a
fictitious business name bearing any HYDAC Marks, Buyer shall register in a form
approved by HYDAC. Any use of any HYDAC Marks
shall inure to the benefit of HYDAC.
Any written materials supplied by HYDAC are its property and Buyer's use of
these materials must be approved in writing by HYDAC.
HYDAC at all times reserves the right to review, approve or inspect the
use of all supplied written materials.
HYDAC, at its sole discretion, may prosecute any infringement of HYDAC patents.
In the event that HYDAC elects to prosecute alleged patent infringements,
Buyer shall render such assistance to HYDAC as may be reasonably necessary to
carry out such prosecution.
Furthermore, Buyer shall immediately inform HYDAC of any known infringements of
HYDAC's patents and of any and all known or claimed patent infringements
relating to Goods supplied or manufactured by HYDAC.
Warranties and Limits of Liabilities:
HYDAC MAKES NO WARRANTY WITH RESPECT TO
AND SHALL NOT BE LIABLE TO BUYER FOR ANY DAMAGES RELATING TO ANY TRADEMARK,
PATENT AND/OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT ARISING FROM: (i) GOODS
MANUFACTURED ACCORDING TO BUYER'S DESIGN OR SPECIFICATIONS; AND (ii) USE OF THE
GOODS IN CONJUNCTION OR COMBINATION WITH ANY OTHER GOODS NOT FURNISHED BY HYDAC
WHERE INFRINGEMENT WOULD NOT HAVE OCCURRED BUT FOR SUCH USE.
With respect to any claimed infringements arising out of (i) or (ii)
above, Buyer shall indemnify HYDAC for any and all losses and damages incurred
by HYDAC as a result thereof.
HYDAC SPECIFICALLY DISCLAIMS ANY
LIABILITY WITH RESPECT TO PROCESS PATENTS OF OTHERS INVOLVING THE MANNER IN
WHICH THE GOODS MAY BE INSTALLED, APPLIED OR USED.
Where HYDAC Goods are
adjudged by a court of competent jurisdiction to infringe upon any trademark,
patent or other intellectual property right, or where HYDAC written materials
are adjudged to infringe upon any copyright, HYDAC shall have the right to
repair, replace or otherwise remove the patent, trademark,
copyright or other intellectual property infringement.
In such circumstances, HYDAC's liability is limited to the refund of the
cost of the Goods or the written materials.
In any and all circumstances, HYDAC shall not be responsible for any
consequential, incidental, special, punitive, exemplary or other damages.
Prohibited Uses of Goods
Without the prior written consent of an
authorized HYDAC executive officer, Buyer shall not use, sell, lease, assign or
otherwise transfer any Goods , or
otherwise permit any Goods to be used, for purposes of, or in connection with,
any of the following applications
Manufacturing, assembling or production of aircraft products including, but not
(including missile or spacecraft), and any ground support or control equipment
product used in or connected with, or incorporated into aircraft, aircraft
parts, aircraft equipment or aircraft accessories including ground handling
tools or equipment; and
products used at an airport for the purposes of guidance, navigation or
direction of aircraft.
Energy applications including, but not limited to:
furnishing of materials, parts or equipment in connection with maintenance,
operation or use of any nuclear facility; and
Furnishing products that will be used in any facility that handles, processes,
uses, stores, transports or disposes of nuclear material including spent nuclear
fuel or waste.
Buyer is encouraged to contact HYDAC to evaluate
any potential use of HYDAC Goods for any Excluded Applications.
Buyer shall indemnify, defend and hold HYDAC harmless from and against
any and all claims and damages incurred as a result of
the use of HYDAC Goods for any Excluded Applications unless Buyer
receives the prior written approval of a HYDAC executive officer authorizing the
use of Goods for any Excluded Applications.
Security Agreement: Credit and
To secure payment of
all sums due HYDAC hereunder or otherwise, HYDAC shall retain a security
interest in the Goods delivered hereunder and this contract shall be deemed a
security agreement under the Uniform Commercial Code.
Buyer authorizes HYDAC as its attorney to execute and file on Buyer’s
behalf all documents HYDAC deems necessary to perfect such security interest.
HYDAC is relying upon Buyer’s representation of solvency and if HYDAC at
any time reasonably believes that Buyer is insolvent or that Buyer’s credit is
impaired, Buyer shall be in material breach hereof and HYDAC may, without
liability to Buyer, withhold performance hereunder, change the payment terms
and/or repossess Goods heretofore delivered.
Title to the Goods covered hereby shall remain in HYDAC until full
payment is received. HYDAC may
charge Buyer finance, service, or late charges in an amount no greater than
allowed by law, and if Buyer fails to make payment when due, Buyer shall be
liable to HYDAC for all costs of collection including attorney’s fees.
End User Responsibility
Except as otherwise
provided in these HYDAC Sales Terms, Buyer shall be solely responsible to all
end-users of the Goods for any and all claims and actions related to the use of
the Goods. Buyer shall indemnify,
defend and hold HYDAC harmless from and against any and all such claims and
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