Parker Hannifin Corporation
Automation Actuator Division
Wadsworth, OH 44281
7
Automation
Heavy Duty Mill Series Rotary Actuator
M Series
Bulletin PM-M-B/USA
1. Terms and Conditions of Sale: All descriptions, quotations, proposals,
offers acknowledgments, acceptances and sales of Seller's products are
subject to and shall be governed exclusively by the terms and conditions
stated herein. Buyer's acceptance of any offer to sell is limited to these
terms and conditions. Any terms or conditions in addition to, or inconsistent
with those stated herein, proposed by Buyer in any acceptance of an offer
by Seller, are hereby objected to. No such additional, different or inconsis-
tent terms and conditions shall become part of the contract between, Buyer
and Seller unless expressly accepted in writing by Seller. Seller's acceptance
of any offer to purchase by Buyer is expressly conditional upon Buyer's
assent to all the terms and conditions stated herein, including any terms in
addition to, or inconsistent with those contained in Buyer's offer. Acceptance
of Seller's products shall in all events constitute such assent.
2. Payment: Payment shall be made by Buyer net 30 days from the date of
delivery of the items purchased hereunder. Amounts not timely paid shall
bear interest at the maximum rate permitted by law for each month or portion
thereof that the Buyer is late in making payment. Any claims by Buyer for
omissions or shortages in a shipment shall be waived unless Seller receives
notice thereof within 30 days after Buyer's receipt of the shipment.
3. Delivery: Unless otherwise provided on the face hereof, delivery shall be
made F.O.B. Seller's plant. Regardless of the method of delivery, however,
risk of loss shall pass to Buyer upon Seller's delivery to a carrier. Any
delivery dates shown are approximate only and Seller shall have no liability
for any delays in delivery.
4. Warranty: Seller warrants that the items sold hereunder shall be free from
defects in material or workmanship for a period of 18 months from date of
shipment from Parker Hannifin Corporation. THIS WARRANTY COMPRISES
THE SOLE AND ENTIRE WARRANTY PERTAINING TO ITEMS PROVIDED
HEREUNDER. SELLER MAKES NO OTHER WARRANTY, GUARANTEE,
OR REPRESENTATION OF ANY KIND WHATSOEVER. ALL OTHER
WARRANTIES, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY
AND FITNESS FOR PURPOSE, WHETHER EXPRESS, IMPLIED, OR
ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF
DEALING ARE HEREBY DISCLAIMED.
NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES
WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR PARTIALLY,
TO BUYER'S DESIGNS OR SPECIFICATIONS.
5. Limitation of Remedy: SELLER'S LIABILITY ARISING FROM OR IN
ANY WAY CONNECTED WITH THE ITEMS SOLD OR THIS CONTRACT
SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF THE
ITEMS SOLD OR REFUND OF THE PURCHASE PRICE PAID BY BUYER, AT
SELLER'S SOLE OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR
ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND
OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST
PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR ITEMS SOLD HEREUNDER, WHETHER ALLEGED TO
ARISE FORM BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY,
OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, FAILURE
TO WARN OR STRICT LIABILITY.
6. Changes, Reschedules and Cancellations: Buyers may request to
modify the designs or specifications for the items sold hereunder as well as
the quantities and delivery dates thereof, or may request to cancel all or part
of this order, however, no such requested modification or cancellation shall
become part of the contract between Buyer and Seller unless accepted by
Seller in a written amendment to this Agreement. Acceptance of any such
requested modification of cancellation shall be at Seller's discretion, and shall
be upon such terms and conditions as Seller may require.
7. Special Tooling: A tooling charge may be imposed for any special
tooling, including without limitation, dies, fixtures, molds and patterns,
acquired to manufacture items sold pursuant to this contract. Such special
tooling shall be and remain Seller's property notwithstanding payment 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 items sold
hereunder, even if such apparatus has been specially converted or adapted
for such manufacture and notwithstanding 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.
8. Buyer's Property: Any designs, tools, patterns, materials, drawings
confidential information or equipment furnished by Buyer, or any other
items which become Buyer's property, may be considered obsolete and
may be destroyed by Seller after two (2) consecutive years have
elapsed without Buyer placing an order for the items which are
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. Taxes: Unless otherwise indicated on the face hereof, all prices and
charges are exclusive of excise, sales, use, property, occupational or
like taxes which may be imposed by any taxing authority upon the
manufacture, sale or delivery of the items sold hereunder. If any such
taxes must be paid by Seller or if Seller is liable for the collection of
such tax, the amount thereof shall be in addition to the amounts for the
items sold. Buyer agrees to pay all such taxes or to reimburse Seller
therefore upon receipt of its invoice. If Buyer claims exemption from
any sales, use or other tax imposed by any taxing authority, Buyer
shall save Seller harmless from and against any such tax, together with
any interest or penalties thereon which may be assessed if the items
are held to be taxable.
10. Indemnity For Infringement of Intellectual Property Rights:
Seller shall have no liability for infringement of any patents, trade-
marks, copyrights, trade dress, trade secrets or similar rights except as
provided in this Part 10. Seller will defend and indemnify Buyer against
allegations of infringement of U.S. patents, U.S. trademarks,
copyrights, trade dress and trade secrets (hereinafter '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 an item sold pursuant to this contract
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 negotiations for
settlement or compromise. If an item sold hereunder 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 said item, replace or modify said item so as to make
it non-infringing, or offer to accept return of said item and return the
purchase price less a reasonable allowance for depreciation. Notwith-
standing the foregoing, Seller shall have no liability for claims of
infringement based on information provided by Buyer, or directed to
items 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 item sold hereunder. The
foregoing provisions of this Part 10 shall constitute Seller's sole and
exclusive liability and Buyer's sole and exclusive remedy for infringe-
ment of Intellectual Property Right.
If a claim is based on information provided by Buyer or if the design for
an item delivered hereunder is specified in whole or in part by Buyer,
Buyer shall defend and indemnify Seller for all costs, expenses or
judgements resulting from any claim that such item infringes any
patent, trademark, copyright, trade dress, trade secret or any similar
right.
11. Force Majeure: Seller does not assume the risk of 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, acts of God, strikes or labor
disputes, acts, laws, rules or regulations of any government or
government agency, fires, floods, delays or failures in delivery of
carriers or suppliers, shortages of materials and any other cause
beyond Seller's control.
12. Entire Agreement/Governing Law: The terms and conditions set
forth herein, together with any amendments, modifications and any
different terms or conditions expressly accepted by Seller in writing,
shall constitute the entire Agreement concerning the items sold, and
there are no oral or other representations or agreements which pertain
thereto. This Agreement shall be governed in all respects by the law of
the State of Ohio. No actions arising out of the sale of the items sold
hereunder of this Agreement may be brought by either party more than
two (2) years after the cause of action accrues.
The items described in this document and other documents or descriptions provided by Parker Hannifin Corporation, its subsidiaries and its authorized
distributors are hereby offered for sale at prices to be established by Parker Hannifin Corporation, its subsidiaries and its authorized distributors. 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 such item, when communicated
to Parker Hannifin Corporation, its subsidiary or an authorized distributor ("Seller") verbally or in writing, shall constitute acceptance of this offer.
Offer Of Sale
