HY13-1526-001-M1/US
Torqmotor™ Service Procedure
TC, TS, TB, TE and TJ Series
Parker Hannifin Corporation
Hydraulic Pump/Motor Division
Greeneville, TN 37745 US
51
Offer of Sale
The items described in this document and other documents and descriptions provided by Parker Hannifin Corporation, its subsidiaries and its authorized distributors (“Seller”) are
hereby offered for sale at prices to be established by Seller. This offer and its acceptance by any customer (“Buyer”) shall be governed by all of the following Terms and Conditions.
Buyer’s order for any item described in its document, when communicated to Seller verbally, or in writing, shall constitute acceptance of this offer. All goods, services or work
described will be referred to as “Products”.
1. Terms and Conditions.
Seller’s willingness to offer Products, or accept an order
for Products, to or from Buyer is subject to these Terms and Conditions or any newer
version of the terms and conditions found on-line at www.parker.com/saleterms/. Seller
objects to any contrary or additional terms or conditions of Buyer’s order or any other
document issued by Buyer.
2. Price Adjustments; Payments.
Prices stated on Seller’s quote or other documenta-
tion offered by Seller are valid for 30 days, and do not include any sales, use, or other
taxes unless specifically stated. Unless otherwise specified by Seller, all prices are
F.C.A. Seller’s facility (INCOTERMS 2010). Payment is subject to credit approval and is
due 30 days from the date of invoice or such other term as required by Seller’s Credit
Department, after which Buyer shall pay interest on any unpaid invoices at the rate of
1.5% per month or the maximum allowable rate under applicable law.
3. Delivery Dates; Title and Risk; Shipment.
All delivery dates are approximate and
Seller shall not be responsible for any damages resulting from any delay. Regardless
of the manner of shipment, title to any products and risk of loss or damage shall pass
to Buyer upon placement of the products with the shipment carrier at Seller’s facility.
Unless otherwise stated, Seller may exercise its judgment in choosing the carrier and
means of delivery. No deferment of shipment at Buyers’ request beyond the respec-
tive dates indicated will be made except on terms that will indemnify, defend and hold
Seller harmless against all loss and additional expense. Buyer shall be responsible for
any additional shipping charges incurred by Seller due to Buyer’s acts or omissions.
4. Warranty.
Seller warrants that the Products sold hereunder shall be free from de-
fects in material or workmanship for a period of eighteen months from the date of
delivery to Buyer or 2,000 hours of normal use, whichever occurs first. The prices
charged for Seller’s products are based upon the exclusive limited warranty stated
above, and upon the following disclaimer:
DISCLAIMER OF WARRANTY:
THIS WAR-
RANTY COMPRISES THE SOLE AND ENTIRE WARRANTY PERTAINING TO PROD-
UCTS PROVIDED HEREUNDER. SELLER DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS AND IMPLIED, INCLUDING DESIGN, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
5. Claims; Commencement of Actions.
Buyer shall promptly inspect all Products
upon delivery. No claims for shortages will be allowed unless reported to the Seller
within 10 days of delivery. No other claims against Seller will be allowed unless as-
serted in writing within 30 days after delivery. Buyer shall notify Seller of any alleged
breach of warranty within 30 days after the date the defect is or should have been
discovered by Buyer. Any action based upon breach of this agreement or upon any
other claim arising out of this sale (other than an action by Seller for an amount due on
any invoice) must be commenced within 12 months from the date of the breach without
regard to the date breach is discovered.
6. LIMITATION OF LIABILITY.
UPON NOTIFICATION, SELLER WILL, AT ITS OP-
TION, REPAIR OR REPLACE A DEFECTIVE PRODUCT, OR REFUND THE PURCHASE
PRICE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS
THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS
OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY CHARGES OR
EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT,
EVEN IF SELLER HAS BEEN NEGLIGENT, WHETHER IN CONTRACT, TORT OR OTH-
ER LEGAL THEORY. IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM
MADE BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
7. User Responsibility.
The user, through its own analysis and testing, is solely re-
sponsible for making the final selection of the system and Product and assuring that
all performance, endurance, maintenance, safety and warning requirements of the
application are met. The user must analyze all aspects of the application and follow
applicable industry standards and Product information. If Seller provides Product or
system options, the user is responsible for determining that such data and specifica-
tions are suitable and sufficient for all applications and reasonably foreseeable uses of
the Products or systems.
8. Loss to Buyer’s Property.
Any designs, tools, patterns, materials, drawings, confi-
dential information or equipment furnished by Buyer or any other items which become
Buyer’s property, will be considered obsolete and may be destroyed by Seller after two
consecutive years have elapsed without Buyer ordering the items manufactured using
such property. Seller shall not be responsible for any loss or damage to such property
while it is in Seller’s possession or control.
9. Special Tooling.
A tooling charge may be imposed for any special tooling, including
without limitation, dies, fixtures, molds and patterns, acquired to manufacture Prod-
ucts. Such special tooling shall be and remain Seller’s property notwithstanding pay-
ment of any charges by Buyer. In no event will Buyer acquire any interest in apparatus
belonging to Seller which is utilized in the manufacture of the Products, even if such
apparatus has been specially converted or adapted for such manufacture and notwith-
standing any charges paid by Buyer. Unless otherwise agreed, Seller shall have the
right to alter, discard or otherwise dispose of any special tooling or other property in its
sole discretion at any time.
10. Buyer’s Obligation; Rights of Seller.
To secure payment of all sums due or oth-
erwise, Seller shall retain a security interest in the goods delivered and this agreement
shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer
authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents
Seller deems necessary to perfect its security interest.
11. Improper use and Indemnity.
Buyer shall indemnify, defend, and hold Seller harm-
less from any claim, liability, damages, lawsuits, and costs (including attorney fees),
whether for personal injury, property damage, patent, trademark or copyright infringe-
ment or any other claim, brought by or incurred by Buyer, Buyer’s employees, or any
other person, arising out of: (a) improper selection, improper application or other mis-
use of Products purchased by Buyer from Seller; (b) any act or omission, negligent
or otherwise, of Buyer; (c) Seller’s use of patterns, plans, drawings, or specifications
furnished by Buyer to manufacture Product; or (d) Buyer’s failure to comply with these
terms and conditions. Seller shall not indemnify Buyer under any circumstance except
as otherwise provided.
12. Cancellations and Changes.
Orders shall not be subject to cancellation or change
by Buyer for any reason, except with Seller’s written consent and upon terms that will
indemnify, defend and hold Seller harmless against all direct, incidental and conse-
quential loss or damage. Seller may change product features, specifications, designs
and availability with notice to Buyer.
13. Limitation on Assignment.
Buyer may not assign its rights or obligations under
this agreement without the prior written consent of Seller.
14. Force Majeure.
Seller does not assume the risk and shall not be liable for delay
or failure to perform any of Seller’s obligations by reason of circumstances beyond the
reasonable control of Seller (hereinafter “Events of Force Majeure”). Events of Force
Majeure shall include without limitation: accidents, strikes or labor disputes, acts of
any government or government agency, acts of nature, delays or failures in delivery
from carriers or suppliers, shortages of materials, or any other cause beyond Seller’s
reasonable control.
15. Waiver and Severability.
Failure to enforce any provision of this agreement will not
waive that provision nor will any such failure prejudice Seller’s right to enforce that pro-
vision in the future. Invalidation of any provision of this agreement by legislation or other
rule of law shall not invalidate any other provision herein. The remaining provisions of
this agreement will remain in full force and effect.
16. Termination.
Seller may terminate this agreement for any reason and at any time
by giving Buyer thirty (30) days written notice of termination. Seller may immediately
terminate this agreement, in writing, if Buyer: (a) commits a breach of any provision of
this agreement (b) appointments a trustee, receiver or custodian for all or any part of
Buyer’s property (c) files a petition for relief in bankruptcy on its own behalf, or by a third
party (d) makes an assignment for the benefit of creditors, or (e) dissolves or liquidates
all or a majority of its assets.
17. Governing Law.
This agreement and the sale and delivery of all Products here-
under shall be deemed to have taken place in and shall be governed and construed
in accordance with the laws of the State of Ohio, as applicable to contracts executed
and wholly performed therein and without regard to conflicts of laws principles. Buyer
irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts
of Cuyahoga County, Ohio with respect to any dispute, controversy or claim arising out
of or relating to this agreement.
18. Indemnity for Infringement of Intellectual Property Rights.
Seller shall have
no liability for infringement of any patents, trademarks, copyrights, trade dress, trade
secrets or similar rights except as provided in this Section. Seller will defend and in-
demnify Buyer against allegations of infringement of U.S. patents, U.S. trademarks,
copyrights, trade dress and trade secrets (“Intellectual Property Rights”). Seller will
defend at its expense and will pay the cost of any settlement or damages awarded in
an action brought against Buyer based on an allegation that a Product sold pursuant
to this Agreement infringes the Intellectual Property Rights of a third party. Seller’s
obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within
ten (10) days after Buyer becomes aware of such allegations of infringement, and Seller
having sole control over the defense of any allegations or actions including all negotia-
tions for settlement or compromise. If a Product is subject to a claim that it infringes the
Intellectual Property Rights of a third party, Seller may, at its sole expense and option,
procure for Buyer the right to continue using the Product, replace or modify the Prod-
uct so as to make it noninfringing, or offer to accept return of the Product and return
the purchase price less a reasonable allowance for depreciation. Notwithstanding the
foregoing, Seller shall have no liability for claims of infringement based on information
provided by Buyer, or directed to Products delivered hereunder for which the designs
are specified in whole or part by Buyer, or infringements resulting from the modification,
combination or use in a system of any Product sold hereunder. The foregoing provi-
sions of this Section shall constitute Seller’s sole and exclusive liability and Buyer’s sole
and exclusive remedy for infringement of Intellectual Property Rights.
19. Entire Agreement.
This agreement contains the entire agreement between the
Buyer and Seller and constitutes the final, complete and exclusive expression of the
terms of sale. All prior or contemporaneous written or oral agreements or negotiations
with respect to the subject matter are herein merged.
20. Compliance with Law, U.K. Bribery Act and U.S. Foreign Corrupt Practices
Act.
Buyer agrees to comply with all applicable laws and regulations, including both
those of the United Kingdom and the United States of America, and of the country or
countries of the Territory in which Buyer may operate, including without limitation the U.
K. Bribery Act, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.S. Anti-Kick-
back Act (the “Anti-Kickback Act”), and agrees to indemnify and hold harmless Seller
from the consequences of any violation of such provisions by Buyer, its employees
or agents. Buyer acknowledges that they are familiar with the provisions of the U. K.
Bribery Act, the FCPA and the Anti-Kickback Act, and certifies that Buyer will adhere to
the requirements thereof. In particular, Buyer represents and agrees that Buyer shall not
make any payment or give anything of value, directly or indirectly to any governmental
official, any foreign political party or official thereof, any candidate for foreign political
office, or any commercial entity or person, for the purpose of influencing such person
to purchase products or otherwise benefit the business of Seller.
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