Terms and Conditions of Sale

Updated January, 2019

These terms (“Terms”) of sale govern the terms upon which you (“you” or “Customer”) purchase Products (as defined below) from Zephyr Solutions LLC, a Delaware limited liability company (“Supplier”).

 

COMMERCIAL DELIVERY

Please note: Zephyr Solutions does not deliver to residential customers or addresses. By purchasing any of (the “Products”) through the Zephyr website, you are ensuring that the delivery address is a corporate, retail, or commercial property. Zephyr Solutions and its vendors reserves the right to refuse delivery in any instance in which the shipping address qualifies as a residence.

 

PURCHASE COMMITMENT

You agree that Supplier will be the exclusive provider of helium and/or propane (the “Products”), for use in connection your locations listed on the order form (each, a “Location”).

 

PRICES

The Prices for the Products will be the prices that are in existence for such Products at the time an order is placed. 

 

DELIVERIES

Supplier shall deliver Products to Customer, either in high pressure cylinders owned or leased by Supplier (“Supplier Cylinders”) or, at the request of Customer, in high pressure cylinders owned or leased by Customer (“Customer Cylinders”). Supplier Cylinders and Customer Cylinders are sometimes referred to herein as “Cylinders”. Risk of loss or damage as to Products and Cylinders shall pass to Customer upon delivery by Supplier to the applicable Location.

 

TREATMENT OF CYLINDERS

Customer shall, at Customer’s sole cost and expense, comply with all applicable laws, regulations, rules and ordinances concerning Customer’s use and storage of the Products and Cylinders. Customer shall, retain in its sole and exclusive possession all Cylinders other than any Cylinders removed from any Location by Supplier. Customer shall not remove any labels or evidence of ownership affixed to any Cylinders. Customer shall not allow any Supplier Cylinders to become subject to any lien, claim or encumbrance. Title to all Supplier Cylinders shall at all times remain with Supplier and, upon termination or expiration of this Agreement, Supplier may remove all Supplier Cylinders from all Locations without notice to or consent from Customer.

Until all Supplier Cylinders are returned to Supplier, all risk of loss or damage to Supplier Cylinders is hereby assumed by Customer and Customer shall pay to Supplier and be responsible for all damages to the Supplier cylinders. If a Supplier Cylinder is damaged beyond repair, Customer shall pay to Supplier, on demand, the full replacement value of such Supplier Cylinders. If a Supplier Cylinder is damaged and can be repaired then Customer shall pay Supplier the actual cost of such repair. The determination as to whether a Supplier Cylinder can be repaired will be at the sole discretion of Supplier. If Supplier provides one or more Supplier Cylinders full of Product to Customer at any Location, and simultaneously removes from such Location one or more Customer Cylinders to be filled with Product and returned to Customer, Customer will be charged a monthly rental charge for the rental of the Supplier Cylinder. 

 

PAYMENT TERMS

Payment is due at the time an order is placed or upon receipt of an invoice.

 

FORCE MAJEURE

Supplier’s performance of its obligations hereunder shall be subject to floods, earthquakes or other natural disasters or acts of God, strikes, labor disturbances, fires, accidents, acts of terrorism, wars, delays of carriers, inability to obtain power or fuel, machinery breakdowns, failure of normal sources of Product supply or Product shortages, restraint of government, state of emergency, or any other cause or event beyond Supplier’s reasonable control. In the event of any Product shortage, Supplier may, in its sole and absolute discretion, allocate such Products as it chooses among its various Customers. 

 

INDEMNIFICATION

Customer shall indemnify, defend and hold harmless Supplier and its Affiliates and their respective successors and assigns, from and against any and all claims (including, but not limited to, all costs, expenses, losses, damages, liabilities and reasonable attorneys’ fees) arising out of or relating to the purchase, use or possession of Products or Cylinders by Customer or any third party including any personal injury or death to any third party.

 

LIMITED WARRANTY; LIMITATION ON DAMAGES.

Supplier warrants to Customer that all Products delivered to Customer shall comply with Supplier’s standard specifications. Except for the express warranty in the immediately preceding sentence, Supplier makes no other warranties to Customer of any kind, whether express or implied, including without limitation any implied warranties of merchantability OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF SUPPLIER IS AWARE OF THE INTENDED PURPOSE OF THE PRODUCTS. If any Products shall not be as warranted, Customer’s sole and exclusive remedy shall be to reject the nonconforming Products and to require Supplier to replace such Products at no cost to Customer. Any failure by Customer to give written notice to Supplier of a claim of nonconforming Product, within ten (10) days after Customer’s receipt of the Products in question, shall constitute an unconditional waiver by Customer of all claims with respect to such Products. IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

 

MSDS COMPLIANCE

Customer acknowledges that there are hazards associated with the use and storage of the Products and the Cylinders, and Customer shall be responsible for warning, training and protecting, as appropriate, Customer’s employees, Customers and others who may be exposed to such hazards due to Customer’s storage and use of Products and/or Cylinder(s). Customer assumes all risk of loss and liability for damage, or injury to persons or to property of Customer or others, arising out of the storage and/or use of the Products and/or Cylinders. Supplier shall make available to Customer all relevant Material Safety Data Sheets (“MSDS”) and, upon Customer’s written request, provide copies of such MSDS to Customer. Customer is aware that OSHA regulations may require Customer to develop and implement a written chemical hazard communications program for Customer’s employees with respect to the Products and/or Cylinders. Customer understands that neither the Products nor the Cylinders may be used without first consulting the MSDS. Customer shall provide all persons who might become exposed to the Products with copies of the relevant MSDS.

 

MISCELLANEOUS

The Terms sets forth herein together with the order placed by Customer with Supplier is the entire understanding of the parties with respect to the purchase and sale of Products. No terms or conditions in any purchase order, sale order or other document issued with respect to the sale or purchase of Products shall vary or supplement the Terms. No modification or waiver of any Term shall bind Customer or Supplier unless in writing and signed and accepted by a duly authorized representative of both parties. The failure of either party to require performance by the other party of any provision hereof shall in no way affect its right to require performance thereafter, and no waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. These Terms are governed by and construed in accordance with the laws of the State of Ohio, without regard to conflict of laws principles. The parties agree to the exclusive jurisdiction of the courts of the State of Ohio with regard to any dispute arising hereunder, and waive their right to request mediation, arbitration or a trial by jury. If a legal or equitable proceeding is instituted by either party against the other party to enforce its rights hereunder, the non-prevailing party shall pay all of the prevailing party’s costs and expenses (including attorneys’ fees).

These Terms inure to the benefit of, and shall be binding on, the parties and their respective successors and permitted assigns. Supplier may assign this Agreement and its rights and obligations hereunder to any other party without the consent of Customer. Customer may not assign these Terms or any of its rights or obligations hereunder without the prior written consent of Supplier; provided, however, that Customer shall assign this Agreement and all of its rights and obligations hereunder to any purchaser of all or substantially all of its assets, in which case the form of such assignment shall be reasonably acceptable to Supplier.