Terms & Conditions of Sale
BEVERAGE GAS EQUIPMENT / PRODUCT SUPPLY
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. THESE TERMS AND CONDITIONS OF SALE ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS AND/OR THE EQUIPMENT, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND NUCO2 HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF TRADE WILL BE RELEVANT TO DETERMINE THE MEANING OF THESE TERMS AND CONDITIONS OR ANY INVOICE. UNLESS CUSTOMER AND NUCO2 HAVE SIGNED A SEPARATE AGREEMENT, THESE TERMS AND CONDITIONS CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS CONTAINED HEREIN AND SUPERSEDE AND REPLACE IN ITS ENTIRETY ANY AND ALL PRIOR AND CONTEMPORANEOUS COMMUNICATIONS AND UNDERSTANDINGS, WHETHER ORAL, WRITTEN, ELECTRONIC OR IMPLIED, IF ANY, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
The Customer agrees to lease from NuCO2 LLC ("NuCO2") the equipment (the "Equipment") described in the invoice delivered by NuCO2 to Customer and purchase from NuCO2 its entire present and future requirements of beverage gases ("Product") pursuant to the following terms and conditions:
1. Prices: Prices for Equipment and/or Product supplied by NuCO2 to Customer may be adjusted by NuCO2 from time to time without notice. If in the sole judgment of NuCO2 any Equipment installed or provided by NuCO2 shall become inadequate, including, without limitation, because of a substantial change in Customer's requirements of Product, NuCO2 shall have the right, at its own expense, to substitute a different size or type of Equipment and the applicable prices shall be adjusted to reflect such substitutions.
2. Payments: Interest shall accrue at the rate of 1.5% per month on all unpaid balances 30 days or more in arrears. All payments shall be made by Customer without set-off or deduction of any kind.
3. Taxes, Fees, Charges and Surcharges: Customer shall pay all applicable taxes (including personal property taxes on the Equipment together with a personal property tax preparation service charge retained by NuCO2), fees, assessments and penalties and will provide permits and licenses in any manner connected with the operation and/or use of the Equipment, and will comply with all laws, regulations and ordinances applicable thereto. Customer shall pay a hazardous materials handling charge ("Hazmat") in the event that NuCO2's costs relating to hazardous materials compliance increase above those in effect as of the date NuCO2 first begins to deliver Product to Customer. Customer acknowledges that Hazmat is not a government fee but rather results from increasing costs incurred by NuCO2 in order to comply with federal, state and local regulations applicable to its operations and activities and is retained by NuCO2 and not paid to any governmental agency or authority. Customer shall pay NuCO2 any applicable delivery charge, surcharges, including an energy surcharge for delivery of Product (per Customer location) in accordance with NuCO2's then current energy surcharge, and other charges or surcharges applicable to NuCO2's customers generally as in effect from time to time.
4. Maintenance Service: NuCO2 shall render maintenance service to the Equipment and keep the Equipment in good working order provided Customer's payments required to be made hereunder are not in default. Regular maintenance service shall be rendered free of cost. NuCO2 shall charge Customer for time and materials for any service call resulting from a malfunction of equipment not installed by NuCO2, to relocate the Equipment or for damage to the Equipment as a result of misuse.
5. Limitation of Liability: Customer acknowledges that there are hazards associated with the use of the Product, that it understands such hazards, and that it is the responsibility of Customer to warn and protect its employees and others exposed to such hazards through Customer's use and storage of Product. NuCO2 shall provide Customer and Customer acknowledges receipt of copies of Material Safety Data Sheets relating to Product in order to make such warnings and Customer will incorporate such information into Customer's safety program. Customer solely assumes all risk and liability for loss, damages or injury to persons or property arising out of the use and storage of Product. Customer shall indemnify and leave NuCO2 harmless from any and all damage or loss of Equipment and also against any claims, suits, damages and expenses, including but not limited to legal fees, resulting by reason of injury caused to any person or property due to the use, storage or presence of Product or the operation of the Equipment.
6. Default: In addition to any other rights or remedies NuCO2 may have at law or in equity, NuCO2 reserves the right to immediately disrupt service in the event of payment delinquency or upon default by Customer in any of these terms and conditions. In such events or in the event any proceeding under bankruptcy laws shall be commenced by or against Customer or in the event that Customer shall be adjudged insolvent or make any assignment for the benefit of creditors, NuCO2 may repossess the Equipment with or without demand or notice to Customer and without court proceedings and Customer waives any and all claims against NuCO2 with respect to such undertaking. Customer agrees to pay the repossession charges for the Equipment, including but not limited to reasonable attorney's fees.
7. Title: Title to the Equipment shall at all times remain in NuCO2's affiliate, NuCO2 Supply LLC. Customer expressly agrees not to hold itself out at any time as having title to the Equipment and shall keep the Equipment free from levies, liens, and encumbrances of all kinds.
8. Defects: Customer will notify NuCO2 promptly after learning of defects in the Equipment.
9. Contingencies: In the event of any contingency beyond NuCO2's reasonable control that would make the delivery of the Product to Customer's locations commercially impracticable, then NuCO2 shall be relieved of any responsibility to Customer's affected locations during such contingency. In such event, or in the event that NuCO2's supply of the Product is limited due to production disruption or NuCO2 incurs cost increases as a result of natural catastrophes, surcharges imposed by its Product supplier, or other uncontrollable events, Customer shall reimburse NuCO2 for the additional costs incurred by NuCO2 in providing Product during such contingency; provided, however, that Customer may, at its option, instead purchase Product from a third party during such contingency. In no event shall either party be liable for consequential damages.
10. Use of Equipment: The Equipment shall be used by Customer only at Customer's location(s) and shall not be removed, sublet or otherwise disposed of without the prior written consent of NuCO2. Customer shall be responsible for the care and safekeeping of the Equipment and shall return the Equipment to NuCO2 in the same condition as when received, ordinary wear and tear excepted. Customer shall pay NuCO2 for any repairs to the Equipment in excess of ordinary wear and tear. Customer shall pay NuCO2 the replacement value of any lost Equipment. NuCO2 shall have the right at all reasonable times to enter Customer's premises to service and inspect the Equipment.
11. Jurisdiction: These terms and conditions and any dispute between Customer and NuCO2 shall be governed by and construed under the laws of the State of Florida.
12. Representation and Indemnity: Customer represents and warrants to NuCO2 that it is not obligated to lease Equipment or purchase Product from any person or entity other than NuCO2. In the event that the foregoing representation and warranty proves to be false, Customer hereby indemnifies and holds harmless NuCO2 from and against all costs, including reasonable attorney's fees, damages or liabilities which NuCO2 may incur in connection with any claim asserted by any third party as a result thereof.
13. Severability: If any of these terms and conditions is held invalid or unenforceable, the remainder of these terms and conditions shall not be affected thereby.
14. Customer Relocation: If the operations at any of Customer's locations are conducted at a new location, such new location, at the option of NuCO2, shall be a location subject to all of these terms and conditions. Customer shall give notice to NuCO2 at least one (1) month prior to the date of any such relocation.