Air Squared – May 2024
Terms and Conditions of Sale
1. APPLICABILITY. Although labeled “Terms and Conditions of Sale” (these “Terms”), these Terms and the accompanying quotation, sales order acknowledgement, invoice or other documents provided by Air Squared Group, LLC or any of its subsidiaries or affiliates (“Air Squared”) constitute an offer (this “Offer”) by Air Squared to sell to the buyer to which this Offer is directed (“Buyer”) the goods (“Goods”) and/or services (“Services”) identified in this Offer. This Offer consists of these Terms and the accompanying quotation, sales order acknowledgement, invoice or other documents provided by Air Squared and contains all and the only terms and conditions upon which Air Squared will sell Goods and Services to Buyer. Air Squared may withdraw or revoke this Offer at any time prior to Buyer’s acceptance. Unless otherwise indicated in writing, this Offer expires 30 days from the date of issuance by Air Squared.
2. ACCEPTANCE OF OFFER. Buyer’s acceptance of this Offer will be confirmed by the earlier of Buyer timely (a) placing a purchase order or other request for Air Squared to supply the Goods or Services, (b) providing any other written or oral indication that this Offer has been accepted and that the right to supply the Goods or Services has been awarded to Air Squared, or (c) accepting delivery of the Goods or Services supplied by Air Squared. Upon such acceptance, this Offer (including these Terms) will form a valid and binding supply contract and will constitute the entire agreement between Buyer and Air Squared for the sale of Goods and Services (the “Order”). This Offer is expressly conditioned on Buyer’s unconditional acceptance of these Terms and the prices, specifications, and other terms stated in the Offer. Air Squared expressly rejects all additional or different terms or conditions (i) submitted to Air Squared in Buyer’s tender or request for proposal/quotation documents, purchase orders, shipping instructions or other acceptance documents, (ii) as set forth under any prime or other contract to which Buyer is a party, and (iii) implied by trade, custom, practice, or course of dealing. Buyer acknowledges that such additional or different terms and conditions will be deemed material alterations to the Offer and will not form part of the Order. Fulfillment of this Order does not constitute acceptance of any of other terms and conditions and does not serve to modify, add to, or amend this Order, regardless of when or how such terms and conditions were submitted to Air Squared.
3. PRICES. Air Squared reserves the right during execution of this Order to adjust the prices for Goods and Services if Air Squared’s costs of performing the Services or producing, manufacturing, packaging, storing, or transporting the Goods increase as a result of (a) Air Squared’s compliance with any new or amended rules, policies or Specifications of Buyer, (b) Air Squared’s compliance with any new or amended law, regulation, or ordinance, including without limitation any change in, or introduction of, a tax, tariff, duty, or fee, or (c) a significant change in Air Squared’s costs for raw materials, wages, production of the Goods, or performance of the Services, as determined by Air Squared in its sole discretion. Such price adjustments will become effective 30 days after the date Air Squared provides Buyer with written notice of such price adjustment.
4. TAXES. Prices do not include, and Buyer is responsible for the payment of all, taxes associated with the Goods and Services provided hereunder, including without limitation sales, use, excise, rental, personal property, and any other taxes or assessments levied by any foreign, federal, state, municipal, or other governmental authority.
5. PAYMENT. Unless otherwise stated on the Order, Buyer will pay to Air Squared the prices set forth in this Order no later than 30 days from the date of invoice. All payments will be made in the manner and to the place identified in the invoice. All Orders are subject to management approval and periodic review of credit and payment terms, which may be modified by Air Squared on reasonable notice for cause. Payments not received when due will incur service charges at a rate of 2% per month (24% per annum) of the unpaid amount until paid. Air Squared reserves the right, among other remedies, to suspend further deliveries or performance, or terminate this Order if Buyer fails to pay any invoices when due. Buyer will pay all reasonable attorneys’ fees, collection costs, and other expenses incurred by Air Squared for collection of past due invoices.
6. SHIPMENT. Unless otherwise stated on the Order, delivery will be made F.C.A. Air Squared’s manufacturing site (the “Delivery Point”) using Air Squared’s standard packaging and containers for the Goods. Buyer will be responsible for all loading costs and provide equipment and labor necessary for receipt of the Goods at the Delivery Point. If Buyer designates a specific carrier to take delivery of the Goods at the Delivery Point, Air Squared will attempt to use that carrier. All freight, insurance, and other shipping expenses will be borne by Buyer. Buyer will inspect shipments for freight damage at time of receipt, immediately notify the carrier and Air Squared of any freight damage and file its claim directly with the carrier. Air Squared is not liable for damage or losses incurred by Buyer as the result of freight damage or delays.
7. TITLE, RISK OF LOSS, & NON-DELIVERY. Risk of loss and title will pass to Buyer upon delivery at the Delivery Point. Until full payment of the purchase price of the Goods and as collateral security for that full payment, Buyer hereby grants to Air Squared a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section 7 constitutes a purchase money security interest under the Uniform Commercial Code in effect in the state where the Delivery Point is located. Air Squared will not be liable for any non-delivery of Goods (even if caused by Air Squared’s negligence) unless Buyer gives written notice to Air Squared of the non-delivery within 10 days of the date when the Goods, in the ordinary course of events, would have been delivered. Buyer’s sole and exclusive remedy for non-delivery of the Goods will be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
8. DELIVERY. Any dates stated for delivery of the Goods or performance of the Services are an estimate only. Air Squared will endeavor to achieve any dates stated on the Order, but will not be liable for damages (including, without limitation, consequential or incidental damages), nor be deemed to have defaulted under or breached this Order, for any delay in delivery of the Goods or performance of the Services. Should Air Squared experience a delay, it shall be entitled to partial deliveries and will cooperate with Buyer in reasonable ways to minimize the impact of such circumstances. Unless otherwise stated on the Order, all Goods ordered by Buyer must be deliverable no later than 12 months after the date of this Order. Buyer may request changes to the schedule for delivery of the Goods, but any such change must be agreed to in writing in advance by Air Squared. Refusal to accept delivery within 5 days of Air Squared’s notice to Buyer that the Goods have been delivered to the Delivery Point or placing an indefinite “HOLD” on delivery, will be treated by Air Squared as an improper termination of this Order by Buyer, and Air Squared will have all rights and remedies under this Order or at law related to such termination.
9. SPECIFICATIONS. Air Squared will manufacture the Goods strictly in accordance with the drawings and/or specifications provided by Air Squared or otherwise agreed upon by Buyer and Air Squared in writing (the “Specifications”).
10. INSPECTION & REVOCATION. Buyer must inspect the Goods for any apparent defect, damage, or shortage within at least 30 days of the date of delivery. Buyer must provide written notice to Air Squared of any defect, damage, or shortage within such 30-day period. If Buyer does not provide notice within such 30-day period, Buyer will be deemed to have accepted the Goods and will not be entitled to object to or reject the Goods or any portion of them. Buyer’s sole and exclusive remedies for any defect, damage, or shortage with respect to the Goods are set forth in Sections 11, 12 & 13.
11. WARRANTY. Air Squared warrants that, for a period of 12 months from the date of delivery of the Goods to the Delivery Point, the Goods manufactured by Air Squared and provided under this Order will: (a) be free from material defects in material and workmanship; and (b) materially comply with the Specifications. These warranties do not apply to any Goods or materials that are manufactured by a third party and that constitute, contain, or are incorporated into, attached to, or packaged with the Goods. These warranties also do not apply if (i) the damage to or defect in a Good is caused by abuse, misuse, accident, neglect, improper testing, installation, or handling, abnormal physical stress or environmental conditions, or use contrary to Air Squared’s instructions, (ii) Buyer or its agents or customers make further use of the Goods after discovery of a defect in such Goods, or (iii) Buyer or its agents or customers alter or repair the Goods without the prior written consent of Air Squared. Air Squared warrants that its Services will be performed by Air Squared in accordance with generally recognized industry standards for similar services under similar circumstances. AIR SQUARED MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, OR AS STATED IN ANY AIR SQUARED LITERATURE OR OTHER SALES BROCHURES, WITH RESPECT TO THE GOODS, OTHER PRODUCTS, OR SERVICES PROVIDED UNDER THIS ORDER. AIR SQUARED EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Experimental, developmental or special application Goods or Goods requiring destructive testing are sold without warranty. In such case, Air Squared warrants that the goods shall meet applicable Specifications when shipped by Air Squared but Air Squared shall have no other or further responsibility whatsoever.
12. BUYER’S EXCLUSIVE REMEDIES. If any Goods do not conform to the warranties set forth in Section 11, Air Squared will, at its option, repair or replace such Goods (or the defective part) or refund the purchase price for such Goods (or the defective part) at the pro rata contract rate by crediting Buyer’s account, provided that, if Air Squared so requests, Buyer will, at Air Squared’s expense, return such Goods (or the defective part) to Air Squared. Air Squared’s exercise of one of these options will not prejudice its exercise of other options in other circumstances. Goods may not be returned to Air Squared without Buyer first obtaining a Return Merchandise Authorization Number. The return to Air Squared of any nonconforming Goods and delivery of any repaired or replaced Goods will be at Air Squared’s expense unless, Buyer did not give Air Squared written notice of the defect within 30 days of the time Buyer discovered or reasonably should have discovered the defect, or after inspection by Air Squared, Air Squared determined, in its reasonable discretion, that the returned Goods are conforming to the warranties set forth in Section 11. Buyer will retain title to returned Goods until Air Squared verifies that the Goods do not meet the warranties set forth in Section 11. If any Services do not conform to the warranties set forth in Section 11, Air Squared will, at its option, re-perform such Services (or the defective part) or refund the purchase price for such Services (or the defective part) at the pro rata contract rate by crediting Buyer’s account. THE REMEDIES SET FORTH IN THIS SECTION 12 ARE BUYER’S SOLE AND EXCLUSIVE REMEDY AND AIR SQUARED’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH IN SECTION 11. IN NO EVENT WILL AIR SQUARED BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES OR LOSSES ARISING FROM A FAILURE OF THE GOODS OR SERVICES TO CONFORM TO THE WARRANTIES SET FORTH IN SECTION 11. The purpose of these express exclusive warranty remedies is to provide Buyer with replacement, exchange, re-performance, or credit for nonconforming Goods or Services. The exclusive remedies will not be deemed to have failed for their essential purpose as long as Air Squared is willing and able to replace, exchange, re-perform, or credit such nonconforming Goods or Services.
13. LIMITED LIABILITY. (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AIR SQUARED BE LIABLE TO BUYER OR TO ANY THIRD PERSON OR ENTITY WITH RESPECT TO THE SUBJECT MATTER OF THIS ORDER, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHER THEORY, FOR ANY (I) INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR (II) DAMAGES RELATING TO DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR LOSS OF SALES, CONTRACTS, BUSINESS, PROFITS, REVENUES, PRODUCTION, SAVINGS, DATA, OPPORTUNITY, USE, REPUTATION, OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THIS ORDER FAIL FOR THEIR ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR THE FOREGOING DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
(B) SUBJECT TO SECTION 13(A) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AIR SQUARED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ORDER, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY EXCEED THE LESSER OF (I) THE TOTAL OF THE AMOUNTS PAID TO AIR SQUARED FOR THE GOODS AND SERVICES SOLD PURSUANT TO THIS ORDER DURING THE 12 MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY, OR (II) $500,000.
(C) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY ACTION AGAINST AIR SQUARED MUST BE BROUGHT WITHIN 12 MONTHS AFTER THE DATE SUCH CAUSE OF ACTION ACCRUED. EACH PROVISION IN THIS ORDER THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY, OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
14. ASSUMPTION OF RISK & INDEMNIFICATION. (A) Buyer is solely responsible for determining that the Goods and Services are appropriate for Buyer’s intended use or application. Buyer acknowledges that it is familiar with and assumes all risks and liability associated with the Goods and Services and their use. Unless otherwise agreed to by Buyer and Air Squared in writing, Buyer is solely responsible for determining whether any verbal or written technical advice, assistance, recommendations, opinions, statements, or other information of Air Squared is appropriate for Buyer’s intended use or application. Any such information is provided by Air Squared to Buyer on an “AS IS” basis, and Air Squared makes no claims, promises, warranties, representations, or guarantees, either express or implied, concerning such information, including without limitation as to the accuracy, completeness, adequacy, quality, merchantability, and fitness for a particular purpose of such information.
(B) Buyer will indemnify, defend, and hold harmless Air Squared and its owners, parents, affiliates, subsidiaries, officers, directors, employees, representatives, and agents, from and against any and all liabilities, losses, damages, claims, costs or expenses (including reasonable attorneys’ fees and costs) incurred by Air Squared with respect to (i) claims of misuse of proprietary information and infringements of IP based on designs, drawings, Specifications, or other information which Buyer provides to Air Squared or which is developed by Air Squared or others in conjunction with Buyer, (ii) the design, manufacture, integration or usage of a Good which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Buyer’s failure to comply with any applicable foreign, federal, state, or local law, rule, regulation, order, or ordinance, including without limitation U.S. export control laws, regulations, or orders, or Buyer’s failure to provide Air Squared adequate information related thereto, and (iv) any breach of Buyer’s obligations under this Order.
15. TOOLING. Any plant, machinery, equipment, molds, tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, and documentation (including engineering specifications and test reports) any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto (collectively, “Tooling”) that Air Squared requires to perform its obligations under this Order will, at all times, be and remain the sole and exclusive property of Air Squared and in the custody and control of Air Squared. Regardless of whether the cost of designing and producing any Tooling is paid for or reimbursed by Buyer, Buyer will have no ownership rights therein. Under no circumstances shall Buyer obtain or receive any ownership, license, or use rights with respect to any Air Squared IP or other proprietary information incorporated into, used to manufacture, or otherwise arising out of or relating to the Tooling. Any Tooling purchased by Buyer shall remain in the custody and control of Air Squared.
16. INTELLECTUAL PROPERTY. Air Squared is the sole and exclusive owner of the IP associated with or attached to the Goods or Services. Any IP first made or conceived by Air Squared in the performance of this Order, or which is derived from or based on information supplied by Buyer that is not otherwise subject to a separate written confidentiality agreement executed between the parties, will be the sole and exclusive property of Air Squared. Buyer will execute such documents as necessary to perfect Air Squared’s title in all such IP and will irrevocably assign all such IP and other rights acquired by Buyer by operation of law or otherwise. Buyer agrees that this Order does not grant to Buyer, and that Buyer will not obtain or claim, any right, title, interest, option, or license to any IP now or hereafter held by Air Squared. Buyer further agrees that it will not decipher, decompile, disassemble, or reverse engineer any of the Goods sold hereunder. As used herein, “IP” means all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
17. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Air Squared (including, without limitation, the terms of this Order and any specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates) disclosed by Air Squared to Buyer or which Buyer becomes aware in the course of carrying out its obligations under this Order, whether disclosed orally or in written, electronic or other form or media, and whether or not identified as “confidential,” is confidential and may not be disclosed or copied by Buyer without Air Squared’s prior written consent. Upon Air Squared’s request, Buyer will promptly return all documents and other materials of Air Squared. Air Squared will be entitled to injunctive relief for any violation of this Section 17. This Section17 does not apply to information that is: (a) in the public domain through no act or omission of Buyer; (b) known to Buyer at the time of disclosure as evidenced by written records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. TERMINATION. (A) Each party will have the right to terminate this Order (a) upon a material breach by the other party of any term or condition stated in this Order, provided that the non-breaching party gave the breaching party written notice of the breach and the breaching party failed to cure such breach, or present the non-breaching party with a plan to cure such breach, within 30 days after the breaching party’s receipt of the written notice of such breach, or (b) in the event the other party becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In the event that Air Squared finds that Buyer has breached any other order or contract that Buyer has with Air Squared, Air Squared may terminate this Order, in whole or in part. Buyer will remain liable under this Order in the event of such termination by Air Squared. Air Squared may also terminate this Order or suspend performance or deliveries under this Order if the costs incurred by Air Squared in performing its obligations under this Order exceed the amounts paid by Buyer to Air Squared for Goods and Services supplied under this Order.
(B) In the event of any early termination or cancellation of this Order by Buyer for any reason, in addition to any other remedies available to Air Squared under law or under this Order (including this Section 18), Air Squared shall be entitled to payment for all work performed through the date of termination, plus reimbursement of all costs for materials, tooling, WIP, shipping, transportation, handling, and labor incurred by Air Squared through the date of termination, less any value for scrapped materials received by Air Squared. All materials, tooling, and other items or property purchased by Air Squared through the date of termination shall remain Air Squared property and shall not be transferred to or become Buyer’s property upon termination or upon any payment made by Buyer in connection with termination.
19. NON-WAIVER/SEVERABILITY. Air Squared’s waiver of any right under this Order will not constitute a waiver of such right or any other right on any other occasion. In the event any provision of this Order is determined to be invalid, such invalidity will not affect the validity of remaining portions of this Order, and the parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision.
20. INDEPENDENT CONTRACTORS. The relationship of the parties established under this Order is that of independent contractors and neither party is a partner, employee, agent, or joint ventures of or with the other. Nothing in this Order will preclude Air Squared from providing similar goods or services to others.
21. SUBCONTRACT & ASSIGNMENT. Air Squared expressly reserves the right to subcontract all or part of this Order without the consent of Buyer. Air Squared reserves the right to assign any of its rights or obligations under this Order without the consent of Buyer. Buyer will not assign any of its rights or obligations under this Order without the prior written consent of Air Squared. Any assignment without Air Squared’s consent will be null and void.
22. SURVIVAL. The provisions of this Order that, by their sense and context, are intended to survive performance by either or both parties will also survive the completion, expiration, termination, or cancellation of this Order.
23. COMPLIANCE WITH LAWS. Each party must comply with all applicable standards, provisions, and stipulations of all foreign, federal, state, and local laws, rules, regulations, ordinances, and Executive Orders. In addition, each party will, at all times, act in a lawful manner and will not use monies associated with this Order to bribe government officials.
24. EXPORT COMPLIANCE. Air Squared is subject to U.S. export and import laws and regulations, including without limitation the Office of Foreign Assets Control (OFAC), 31 CFR Parts 500-599; the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120- 130; the Export Administration Regulations (EAR), 15 CFR Parts 730-774; and the Foreign Trade Regulations (FTR), 15 CFR Part 30. Buyer agrees that it will not export, re-export, release or otherwise transfer, directly or indirectly, Goods, technical data, and/or Services provided by Air Squared in violation of U.S. law. Buyer is responsible for obtaining any necessary U.S. government authorization required to ensure compliance of Buyer with U.S. law. Buyer represents and warrants that any export-controlled Goods or information that are subject to U.S. export controls will be appropriately marked or otherwise labeled in accordance with U.S. law. Orders requiring Air Squared to obtain export licenses may be subject to additional fees and/or minimum order requirements. Unless otherwise notified in writing prior to any shipment of Goods, Buyer who is a Foreign Principle Party in Interest authorizes Air Squared, the U.S. Principal Party in Interest, to prepare, transmit, or otherwise direct the filing of Electronic Export Information in AES as required by U.S. law in connection with the exportation of any Goods supplied by Air Squared. Buyer may contact the Air Squared Trade Compliance Department by e-mail at info@air squared.com with questions regarding export requirements.
25. CHOICE OF LAW, JURISDICTION, & VENUE. The laws of the State of Colorado will govern, construe, and interpret this Order, notwithstanding conflict of laws. If an arbitrator or court determines that terms and conditions in addition to those contained in this Order should be included in interpreting the agreement between the parties, then notwithstanding any contrary Colorado law, the parties agree that any different terms and conditions will be interpreted under Article 2 of the Uniform Commercial Code, section 2-207(2). The parties elect not to be bound by the United Nations Convention on Contracts for the International Sale of Goods. By ordering the Goods and Services, Buyer acknowledges that it is transacting business at Air Squared’s principal place of business in Golden, Colorado. The federal and state courts in the State of Colorado will have exclusive jurisdiction over all disputes and controversies arising out of this Order. Venue will be proper in Denver, Colorado.
26. MODIFICATION & MERGER. This Order may be modified only by a written agreement that is expressly designated as an amendment to this Order and is signed by both the parties. This Order comprises the entire agreement between the parties and supersedes all prior or contemporaneous oral and written understandings, agreements, negotiations, representations, warranties, and communications between the parties.
If you have any questions, please contact our Sales Department at +1 (303) 466-2669 or sales@airsquared.com.
