1. General Terms
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.
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 date.
Delivery And Packing:
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.
Returned Goods (Warranty Claim):
See Section 2 of these Sale
Terms for the return of Goods resulting from a warranty
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
Warranty 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 Sales Terms.
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.
If raw 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 connection therewith.
2. HYDAC Limited Warranty and Limitation of Liability
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 date.
HYDAC warrants that the Goods shall be free from defects in
material and workmanship, under normal use and service,
during the Warranty Period.
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
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 warranty claim.
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.
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
In no 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.
THE 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.
3. HYDAC Intellectual Property Terms and Conditions Trademarks:
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
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
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.
4. 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 (hereafter “Excluded
- Manufacturing, assembling or production of aircraft products including, but
not limited to:
- Aircraft (including missile or spacecraft), and any ground support or
control equipment used therewith;
- Any product used in or connected with, or incorporated into aircraft,
aircraft parts, aircraft equipment or aircraft accessories including ground
handling tools or equipment; and
- Any products used at an airport for the purposes of guidance, navigation or
direction of aircraft.
- Nuclear Energy applications including, but not limited to:
- Any 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.
5. Security Agreement: Credit and Collection
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
6. 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