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Air Squared – May 2024
Terms and Conditions of Purchase

1. APPLICATION.

  • 1.1. These Terms and Conditions of Purchase apply to all Agreements for the Delivery of Parts to Air Squared Group, LLC or any of its subsidiaries or affiliates (Air Squared).

2. DEFINITIONS.

  • 2.1. The following definitions shall have the meaning set out below in all Agreements.
  • 2.2. “Agreement” means, individually or collectively, a Purchase Agreement, Framework Agreement, or any other contract between Air Squared and the Supplier.
  • 2.3. “Air Squared” means Air Squared Group, LLC, Air Squared Manufacturing, LLC, Air Squared, LLC, or any of its subsidiaries or affiliates, the party that has issued a PO or TPO to the Supplier or otherwise entered into an Agreement with the Supplier.
  • 2.4. “Air Squared Procedures” means any procedures or instructions issued by Air Squared.
  • 2.5. “Defective Part” means any Part not meeting the requirements set on in section 11.1-11.2.
  • 2.6. “Delivery” means the delivery of a Part in accordance with all the terms of an Agreement.
  • 2.7. “Delivery Plan” is a document, whether in electronic form or on paper, which sets out the quantities, Delivery dates, and other Delivery information for Parts that Air Squared expects to request Delivery of within a certain period.
  • 2.8. “Field Action” means any activity Air Squared initiates on Products to address quality or safety issues, compliance with legal requirements or customer concerns. Field Actions include but are not limited to product recalls and service campaigns.
  • 2.9. “Force Majeure” means all events which are beyond the control of a Party, and which are unforeseen, unavoidable, or insurmountable, and which are not known at the agreement of an Agreement and which prevent total or partial performance by either Party, and as further defined in Section 25.
  • 2.10. “Framework Agreement” is an agreement that Air Squared and the Supplier may have entered into to form the basis for supply to Air Squared
  • 2.11. “Intellectual Property Rights” means all forms of intellectual property rights in any country or region, including but not limited to inventions, trade secrets, patents, copyrights, design, trademarks (whether or not registered or registrable and including applications for registration of any such thing) and know how.
  • 2.12. “Parts” means parts, systems, components, assemblies, materials, fittings, equipment, supplies, articles, commodities, prototypes, samples, services, processes, items, software, firmware, hardware, or any other thing that Air Squared orders that the Supplier supplies to Air Squared
  • 2.13. “Party” or “Parties” means the parties to an Agreement.
  • 2.14. “Product” means the product in which a Part is, or is intended to be, incorporated.
  • 2.15. “Purchase Agreement” is an agreement between Air Squared and the Supplier for the purchase by Air Squared of Parts from the supplier in accordance with Section 3 below.
  • 2.16. “Purchase Order” or “PO” is a document, in paper or electronic form, issued by Air Squared to the Supplier for the purchase of Parts.
  • 2.17. “Regional Value Content” or “RVC” means the percentage of a Part’s content that originates from a specific country or region as defined by the United States-Mexico-Canada Agreement (USMCA).
  • 2.18. “Supplier” means the party to an Agreement that supplies, or is intended to supply, Parts to Air Squared.
  • 2.19. “Supplier Proposal” means any acknowledgement, estimate, quote, offer to sell, invoice, proposal, or proffer of Supplier relating to the supply of Parts to Air Squared, whether electronic or paper document, including any in connection with a request for quotation, request for proposal or other information, or similar process whether initiated by Air Squared or the Supplier.
  • 2.20. “Technical Specifications” means documentation provided or referred to by Air Squared or provided, referred to or published electronically, by print or by any other means by the Supplier which describes the Part’s or Typebound Tooling’s shape, function, material content and/or any other requirement of the Part or Typebound Tooling. In the event of a conflict between the documentation provided or referred to by Air Squared and documentation provided, referred to or published electronically, by print or by any other means by the Supplier, the documents provided or referred to by Air Squared shall control.
  • 2.21. “Tooling Purchase Order” or “TPO” is a document, in paper or electronic form, issued by Air Squared to the Supplier for the purchase of Typebound Tooling.
  • 2.22. “Typebound Tooling” means any and all tools, jigs, fixtures, dies, molds, models, test stands and/or other equipment, including related software, specifically manufactured, or adapted for manufacture or quality control of parts.
  • 2.23. Terms defined in these Terms and Conditions of Purchase shall have the same meaning in all documents being part of an Agreement unless the context expressly provides otherwise.

3. CONCLUSION OF A PURCHASE AGREEMENT AND OTHER CONTRACTUAL DOCUMENTS.

  • 3.1. A Purchase Agreement is established between Air Squared and the Supplier when Air Squared has issued a PO to the Supplier and the Supplier has accepted such PO. The Supplier shall be deemed to have accepted the PO (Purchase Order Confirmation) at the earliest of (i) the Supplier notifying Air Squared of its acceptance, (ii) the Supplier beginning performance pursuant to the PO, or (iii) the Supplier does not inform Air Squared of non-acceptance of an PO within five (5) business days of receipt of such PO.
  • 3.2. Air Squared accepts no liability for orders for parts that have not been placed in accordance with this Section 3.
  • 3.3. A Purchase Agreement includes these Terms and Conditions of Purchase and, to the extent they are issued, the following documents:
    • (a) Framework Agreement, if applicable (which shall prevail over these Terms and Conditions of Purchase)
    • (b) Purchase Agreement
    • (c) Purchase Order
    • (d) Tooling Purchase Order
    • (e) Technical Specifications
    • (f) Price Agreement
    • (g) Warranty Charter
    • (h) Air Squared Supplier Quality Manual
    • (i) Air Squared Workmanship Standard
    • (j) Delivery Plan according to Section 8.1
    • (k) Other agreed documents. With respect to such documents, a subsequently issued document shall prevail over a previously issued one.
  • 3.4. In the event of a conflict between the documents which constitute a part of an Agreement, the documents shall apply in the order they are mentioned in Section 3.3 unless otherwise expressly agreed in a specific document.
  • 3.5. No terms or conditions submitted by the Supplier apply to an Agreement unless accepted in writing by Air Squared. Supplier hereby specifically agrees without reservation that Air Squared objects to, and is not bound by, any terms and conditions published by the Supplier, whether electronically, in print, or any other media, specifically inclusive of any terms and conditions stated in the Supplier’s quote, proposal, notification of acceptance of a Purchase Order, confirmation, acknowledgement, invoice or any other document, without respect to any language in said acceptance notification.
    • Any reference in an Agreement or any other form of communication to any Supplier Proposal is solely for the purpose of incorporating the descriptions and specifications of the Parts contained in the Supplier Proposal, and only to the extent that the terms of the Supplier Proposal do not conflict with this Terms and Conditions of Purchase, the PO, Technical Specifications, or any other Agreement.
  • 3.6. Any reference in an Agreement or any other form of communication to any Supplier Proposal is solely for the purpose of incorporating the descriptions and specifications of the Parts contained in the Supplier Proposal, and only to the extent that the terms of the Supplier Proposal do not conflict with this Terms and Conditions of Purchase, the PO, Technical Specifications, or any other Agreement.

4. NON-EXCLUSIVE SUPPLY.

  • 4.1. The Supplier is not the exclusive supplier of the Parts.

5. INFORMATION.

  • 5.1. The Supplier shall upon Air Squared’s request, provide Air Squared with its latest financial and other business information related to the Supplier to evaluate the Supplier’s financial performance and the relationship with the Supplier and/or such other information that Air Squared may request. The Supplier shall provide Air Squared with the information without undue delay from the receipt of Air Squared’s request.
  • 5.2. In addition to the above, the Supplier shall provide Air Squared without undue delay with any other information about the Parts and/or the Supplier that may be requested for the import or export of the Parts.
  • 5.3. If the Supplier enters composition proceedings, is declared bankrupt, goes into liquidation or for any other reason can be assumed to have become insolvent, the Supplier shall immediately inform Air Squared thereof. Supplier shall also without any undue delay inform Air Squared of any other event that may have a material negative impact on the Supplier’s financial status, the Supplier’s performance of its obligations under an Agreement and/or the Supplier’s relationship with Air Squared.
  • 5.4. If the Supplier does not provide the information requested by Air Squared according to this Section 5 within a reasonable time, Air Squared shall be entitled, after reasonable notification, to perform a financial audit of the Supplier (either by itself or by appointing an independent third party), at the Supplier’s expense. The scope of such audit shall be limited to financial information that is required for Air Squared to evaluate the Supplier’s financial performance. The Supplier shall only be entitled to withhold requested information to the extent the Supplier can demonstrate that the Supplier is prevented from disclosing certain information due to mandatory legislation, applicable stock exchange regulations, or due to confidentiality undertaking with a third party.

6. ELECTRONIC INFORMATION.

  • 6.1. The Parties agree that if Air Squared implements an electronic data interchange (EDI), then applicable communication will be conducted utilizing EDI. When and to the extent EDI is implemented, the Parties will apply the terms of the EDI procedures communicated from Air Squared to the Supplier.

7. CONFORMITY WITH ORDER.

  • 7.1. The Supplier shall supply Parts in accordance with the Technical Specifications and terms of the Purchase Agreement, without any obligation upon Air Squared to validate, check, qualify, verify, measure, analyze, inspect, or to perform any other procedure to verify Parts are in accordance with the Technical Specifications (Inspect). It is incumbent upon the Supplier to perform all required inspections, measurements, quality or other checks, and any other verification procedures (Supplier Inspection) to ensure Parts comply with the Technical Specifications and to store the Supplier Inspection results for thirty-six (36) months. The Supplier shall, upon Air Squared’s request, provide Air Squared with Supplier Inspection and/or such other related information that Air Squared may request.
  • 7.2. Seller will not substitute or change any Parts ordered by Air Squared without the prior written approval of Air Squared. Air Squared will not pay for any substitutions or changes that are not approved in writing by Air Squared prior to any substitutions or changes being implemented.
  • 7.3. Air Squared reserves the right to Inspect some or all Parts Delivered. In such cases, Air Squared will have thirty (30) days following Delivery to undertake such Inspection, and upon such Inspection Air Squared will have the right to reject any Parts that are determined to be Defective Parts.
  • 7.4. An Inspection may include a sample of Parts selected by Air Squared by random choice. If an Inspection of any quantity of Parts reveals Defective Parts, Air Squared may determine the entire Delivery of such parts to be Defective Parts.
  • 7.5. Air Squared reserves the right to modify the Technical Specifications of a Part. Any change in the price or other conditions resulting from a modification of the Technical Specifications shall be agreed upon in writing prior to any change of production equipment and prior to the commencement of Delivery by the Supplier of any modified part.
  • 7.6. The Supplier shall supply Typebound Tolling ordered by Air Squared in accordance with the Technical Specifications, if issued by Air Squared, and in accordance with the terms of the TPO, without any obligation upon Air Squared to undertake any verification or inspection.
  • 7.7. Air Squared reserves the right to modify the Technical Specifications of Typebound Tooling, and the Supplier shall immediately modify the Typebound Tooling according to the new Technical Specifications. Any change in price or other conditions resulting from a change in Technical Specifications shall be agreed upon in writing prior to making any change to the Typebound Tooling.

8. ORDERED QUANTITY AND CAPACITY, DELIVERIES AND COMPENSATION FOR CANCELLED PURCHASES.

  • 8.1. The Supplier hereby specifically agrees without reservation that time is of the essence and Delivery shall be strictly in accordance with an Agreement.
  • 8.2. Air Squared’s delivery reception hours are 8:00 am to 3:00 pm Mountain Time Zone, unless otherwise agreed to in advance of Delivery.
  • 8.3. Air Squared may issue Delivery Plan(s) for Parts. The Delivery Plans set out the quantities and Delivery dates for Parts that Air Squared expects to request Delivery. Firm requests for Delivery of Parts, including the fixing of the exact quantity and Delivery time, are made in the PO. Only what Air Squared explicitly has agreed, in a Purchase Agreement agreed prior to the Delivery in question, to be a firm request for Delivery shall be deemed to be a firm request for Delivery.
  • 8.4. Any quantity included in the Delivery Plan that exceeds what is a firm request for the Delivery of Parts, or any volume estimates provided elsewhere (Excess Quantity), shall be considered a forecast only and shall not be binding on Air Squared. However, the Supplier is obliged to maintain such production and Delivery capacity so that deliveries can be made in accordance with the forecast quantity in the Delivery Plan. In the event an Excess Quantity is shipped and Air Squared incurs additional shipping, storage or other costs as a result, the Supplier shall refund such additional costs to Air Squared.
  • 8.5. The Supplier shall immediately inform Air Squared if there is a risk of non-compliance with the most recent Delivery Plan issued by Air Squared. Recognizing that time is of the essence, the Supplier will take all necessary actions, both ordinary and extraordinary, to ensure timely deliveries.
  • 8.6. If the Supplier is unable to meet Air Squared’s need for the Parts, the Supplier shall find alternative supplies for Air Squared in consultation with Air Squared. Actual procurement from an alternative supplier is subject to Air Squared’s written approval.
  • 8.7. Should Air Squared cancel, wholly or partly, or fail to purchase a quantity of a Part for which Air Squared’s order is firm, in accordance with Section 8.1 above, Air Squared shall compensate the Supplier for actual and reasonable costs, which shall not include penalties, fees, or other costs not related to actual costs relating to such cancelled quantity. In calculating such costs, the Supplier shall not receive compensation to the extent that the Part or components, semi-manufactured items or raw materials intended for a Part can be used for other Deliveries to Air Squared or another party, or for another purpose. Air Squared’s obligation to compensate for cancellations is conditional upon the Supplier submitting specified claims for compensation in writing not later than six (6) weeks after the Supplier should have been able to establish the costs relating to the cancelled quantity.
  • 8.8. The Supplier is obliged to provide Air Squared with regular updates on the progress of Delivery of Parts. The Supplier will accordingly provide, at intervals to be agreed with Air Squared, progress reports on the Delivery of the Parts. If the Supplier is unable to Deliver in accordance with an Agreement, the Supplier shall immediately notify Air Squared of this fact in writing, stating the nature of the circumstances, the measures the Supplier has taken and the expected duration for the delay, in default of which the Supplier will be precluded from citing these circumstances at a later time.

9. PRICES AND PAYMENT.

  • 9.1. The price for Parts is stated in the PO and shall, subject to Section 9.2 below, apply until the Parties agree on a new price in writing. Unless otherwise agreed in writing, the price stated for any Part shall be a fixed price, inclusive of packing, shipping, hauling, storage, and transportation to the point of Delivery, and all duties, levies, fees, and taxes in the country of origin of the Parts. No separate or additional charges for these items will be accepted.
  • 9.2. The Supplier shall during the term of an Agreement provide Air Squared with Parts that are competitive in terms of price, quality, Delivery, and technical function. If either Party considers that the Supplier’s Delivery of one or more Parts is no longer competitive in relation to price, quality, Delivery and/or technical function even though the delivered Parts are in accordance with the terms of an Agreement, the aggrieved Party shall supply the other party with such notification and information supporting this belief, however Supplier shall not cease, suspend, or cancel supply of Parts or fail to comply with any Agreement. The Supplier and Air Squared shall in good faith discuss how to make the Part competitive. If the Parties are unable to arrive at a mutually acceptable solution within sixty (60) days after said notification, then either Party shall have the right to terminate the Purchase Agreement insofar as it concerns the non-competitive Part by giving the other party ninety (90) days’ notice.
  • 9.3. The Supplier undertakes to supply a complete cost breakdown (including but not limited to labor, material, and amortization) and the price of all the basic components of any Part, which in the aggregate shall not exceed the price of the Part it together represents.
  • 9.4. Remittance of payment shall not imply any acceptance of the Delivery or of the invoiced amount.
  • 9.5. The Supplier shall not issue an invoice prior to the actual Delivery date of the Parts.
  • 9.6. All payments are contingent on acceptance of the Parts by Air Squared. The Supplier shall issue separate invoices for each shipment.
  • 9.7. Payment shall be deemed to have been made on the date Air Squared’s check is mailed or payment is otherwise tendered. Supplier shall promptly repay Air Squared any amounts paid in excess of amount due to Supplier.
  • 9.8. Invoices which do not agree with prices or other terms of an Agreement, including invoices for Defective Parts, will be returned to Supplier for corrections. Payment schedule shall commence upon receipt of the corrected invoice by Air Squared. Air Squared will have no obligation to pay invoiced amounts it disputes in good faith until such dispute is resolved. Air Squared will notify Supplier promptly of any such dispute, and Air Squared and Supplier will seek to resolve all such disputes expeditiously and in good faith. Supplier will continue to perform all of its obligations under this Order while Air Squared and Supplier work to resolve any such dispute.
  • 9.9. Invoices shall be emailed to ap@airsquared.com and will not be considered received unless the invoice is correct and includes all information required by Air Squared. Invoices sent to any other address, whether email address or physical address, shall not be valid. Payment will be based on Purchase Agreement Delivery date or invoice receipt date, whichever is later.
  • 9.10. The Supplier and Air Squared will jointly pursue cost reduction opportunities for the duration of an Agreement and will reflect the achievements of such opportunities in price reductions to Air Squared.

10. DELIVERY AND PASSING OF TITLE.

  • 10.1. The agreed Delivery term shall be construed in accordance with Incoterms® 2020, and unless otherwise agreed, shall be “FOB”, the Supplier’s factory or named point specified in the PO.
  • 10.2. The Supplier shall provide an advance shipping notice (ASN) by sending an email to pickupscheduling@airsquared.com. The ASN shall include the Part number, Purchase Order number, quantity of Parts, expected Delivery date, and if applicable, the carrier’s name and contact information, tracking number, progressive number (PRO#) and any other pertinent information that will allow Air Squared to track the shipment.
  • 10.3. The Supplier shall package the Parts for shipment to protect from loss or damage in conformance with instructions issued by Air Squared and in compliance with applicable regulations. If no instructions are issued by Air Squared, the Supplier is solely responsible for packaging design. Parts shall be packaged for shipment to protect from loss or damage in conformance with good commercial practice, and at a minimum, Parts shall be packaged for loading, transport, unloading and delivery and to protect from loss or damage for shipment by air, land, or sea and to be stored under normally anticipated conditions, and to eliminate part to part contact.
  • 10.4. All Goods that are hazardous materials will be marked by Seller with international danger symbols and will display the name of the material in English. Delivery and other shipping documents must include disclosure of the relevant hazard(s) and emergency response procedures. Such information may be provided on a Material Safety Data Sheet furnished with the Goods that identifies each hazardous chemical and includes information concerning its carcinogenicity or toxicity.
  • 10.5. Supplier will include a packing slip with all deliveries. The packing slip will set forth the applicable Air Squared PO number, line number, part number, the shipment quantity, and batch number. If a Certificate of Conformance is required on the PO that includes additional specifications, the specifications will be included in the packing list in addition to an authorized signature.
  • 10.6. Unless otherwise set out in the PO, title in the Parts will pass to Air Squared at the same time as the risk will pass to Air Squared according to Section 10.1.

11. WARRANTY FOR PARTS, SUITABILITY FOR INTENDED USE.

  • 11.1. The Supplier warrants, for a period of three (3) years (unless a longer period is agreed) from the date the Parts are delivered to Air Squared that all Parts delivered under an Agreement (i) shall conform to the Technical Specifications and to any samples approved by Air Squared, (ii) shall be free from defects in title, materials, workmanship, manufacture and design (to the extent the Supplier, its employees, agents, contractors and/or vendors are responsible for the design), and (iii) shall be fit and sufficient for their intended use.
  • 11.2. The Supplier agrees to waive the time limitation to which the foregoing warranties are subject in the event that after the applicable warranty period has expired (i) defects of the same or similar nature have been discovered in a statistically significant portion of the Parts as solely determined by Air Squared, (ii) a defect is discovered which may cause or has caused (or is alleged by a third party to may cause or has caused) damage or poses a significant threat of damage to property or to the health or safety or any person, or (iii) Air Squared anywhere in the world is statutory obliged to perform a Field Action involving the repair or replacement of Parts.
  • 11.3. The Supplier shall immediately inform Air Squared of any Defective Parts discovered or anticipated which have been dispatched to Air Squared.
  • 11.4. The Supplier shall ensure it has obtained all information on the intended use of, application of and other conditions affecting the Parts. Air Squared shall upon request from the Supplier provide all information, which Air Squared in its sole discretion deems relevant for the design, development and/or manufacturing of the Parts.
  • 11.5. Air Squared personnel may from time-to-time render assistance and/or give suggestions and/or opinions to, or affect an exchange of, information with the Supplier’s personnel concerning the Parts to be furnished under a PO (“Assistance”). Air Squared is not obliged to provide such Assistance and the provision of Air Squared of such Assistance shall not create any liability for Air Squared and shall not in any way limit the Supplier’s liability to fully perform its obligations under an Agreement, nor shall any Assistance constitute a change binding upon Air Squared unless issued as an amendment to an Agreement. In all cases, and as acknowledged by the Supplier, Air Squared is relying upon the Supplier’s knowledge and expertise in performing all work regarding the Parts to be furnished.

12. LIABILITY FOR DEFECTS OR OTHER NON-CONFORMING DELIVERIES.

  • 12.1. In the event a Part does not fulfill the requirements set out in Section 11- (a Defective Part), then Air Squared shall be entitled to (i) demand immediate rectification, or (ii) demand immediate Delivery of substitute Part(s). Defective Parts may not be reworked or repaired and delivered to Air Squared without Air Squared’s written permission.
  • 12.2. If a Defective Part cannot be repaired or replaced by the Supplier without delay or if there is a risk of production disturbances at Air Squared or Delivery disturbances from Air Squared to Air Squared’s customers, Air Squared shall be entitled, without obtaining the Supplier’s consent and at the Supplier’s expense of at least $345 per hour, to make the necessary repair work or completely or partly terminate the purchase of the Part and other such Parts that Air Squared does not consider having any use of due to the defect or shortcoming, and also, to undertake substitute purchases from other supplier(s).
  • 12.3. In addition to what is set forth in Sections 12.1 and 12.2 above, the Supplier shall compensate Air Squared for any loss or damage arising out of or relating to a Defective Part including but not limited to costs (including reasonable attorney’s and expert’s fees) for any Field Actions, labor, replacement, assembly and disassembly, detection and analyze, scrapping and transportation to Air Squared and/or its end-users.
  • 12.4. If due to a Delivery of a Defective Part Air Squared considers it necessary to inspect all or some Parts of the same kind delivered by the Supplier, Air Squared shall be entitled, after giving the Supplier notice thereof, to make such inspection at the Supplier’s expense of at least $225 per hour and without awaiting the Supplier’s approval.
  • 12.5. If a Delivery does not contain the quantity specified in the request for Delivery, Air Squared shall be entitled to demand immediate rectification and the Supplier shall compensate Air Squared for all costs arising out of or relating to the delay or shortfall in Delivery. If the Supplier delivers a quantity either in excess of Air Squared’s ordered quantity or earlier than the Delivery date, Air squared shall not be responsible for taking Delivery of, storing or maintaining such Parts and shall further be entitled to return any excess or prematurely delivered quantity to the Supplier at the Supplier’s expense and/or receive compensation from the Supplier for storage and/or maintenance costs.
  • 12.6. If Air Squared accepts Parts that do not conform to the terms of an Agreement this will not relieve the Supplier of its obligations to correct any such nonconformance or preclude Air Squared from any remedy under an Agreement.
  • 12.7. In the event of a late Delivery of a Part, Air Squared is entitled to (i) completely or partly terminate the purchase of the Part and of other Parts which Air Squared does not consider having any use of due to the late Delivery, and (ii) make substitute purchases from other suppliers. The Supplier shall indemnify Air Squared against, and hold Air Squared harmless from, any costs, losses and damages incurred or arising out of or relating from late Delivery. No act of Air Squared, including acceptance of late deliveries, will act as a waiver of this Section 12 or any other remedy.

13. WARRANTY FOR TYPEBOUND TOOLING ORDERED BY AIR SQUARED.

  • 13.1. The Supplier warrants that all Typebound Tooling delivered (i) shall conform to the Technical Specifications, if issued, (ii) shall be free from defects in title, materials, workmanship, manufacture, and design, and (iii) shall be fit and sufficient for their intended purpose, including without limitation that they will be capable of producing the relevant Parts in the volume projected by Air Squared.

14. SUPPLIER’S PRODUCTION.

  • 14.1. The Supplier shall, in respect of design, development, production, installation and service, comply with the applicable requirements of a quality system approved by Air Squared.
  • 14.2. The Supplier shall always strive to improve the production process. Air Squared shall be entitled, after reasonable notification, to inspect the Supplier’s production of a Part, perform tests and make other necessary examinations at the Supplier’s premises, including evaluating any risks for interruption in the supply of Parts as well as safety, quality, and other issues. The Supplier shall endeavor to obtain the same rights for Air Squared at the premises of its suppliers. Air Squared shall give the Supplier at least a one (1) week notice about such inspection. Supplier will ensure key personnel, production and/or services areas, and documentation are available.

15. TESTING.

  • 15.1. The Supplier shall, prior to commencement of serial production of a new or changed Part, manufacture and perform quality control of samples in accordance with Air Squared’s applicable requirements relating to testing from time to time.
  • 15.2. Once a sample has been approved by Air Squared, alteration of the process of production or the function, appearance, characteristics, material, production method, place of manufacture, Typebound Tooling or other equipment which may affect the Part, may be done only after written approval on each occasion from Air Squared. Delivery may thereafter be made only after renewed approval of a sample.
  • 15.3. If Air Squared rejects a sample, the Supplier shall make rectification so that the requirements referred to in Section 11are fulfilled.

16. RELOCATION OF PRODUCTION.

  • 16.1. The Supplier has been selected by Air Squared based on, among other criteria, Supplier’s assurances regarding and Air Squared’s expectations on, the Supplier’s ability to manufacture and deliver Parts in accordance with the Technical Specifications and otherwise in accordance with the Agreement.
  • 16.2. The Supplier may not relocate the production of a Part, wholly or partly, without Air Squared’s written consent. Such consent, if given, is without prejudice to Air Squared’s continued rights to require compliance by the Supplier with an Agreement.

17. ENVIRONMENTAL CONCERN.

  • 17.1. Air Squared Suppliers are expected to operate in an environmentally responsible and efficient manner to minimize adverse impact on the environment. Suppliers are encouraged to help their own suppliers to adopt the same standards. The Supplier recognizes Air Squared’s certification of the ISO 14001 environmental standard.
  • 17.2. With respect to Air Squared’s ISO 14001 Certification, Suppliers are expected to:
    • 17.2.1. Comply with applicable laws and regulations governing climate risk assessment and emissions management
    • 17.2.2. Comply with applicable laws and regulations governing water withdrawal, usage, and effluent management.
    • 17.2.3. Comply with applicable law and regulations governing waste, hazardous, and toxic materials, and substances.
    • 17.2.4. Comply with applicable environmental laws and regulations and obtain the necessary permits, licenses and registrations expected.
  • 17.3. Suppliers are encouraged to:
    • 17.3.1 Set science-aligned goals or targets for greenhouse gas (GHG) emissions reduction and share them with Air Squared.
    • 17.3.2 Implement a systematic approach for reducing energy usage and GHG emissions and monitor progress.
    • 17.3.3 Measure and disclose the apportion or estimation of Scope 3 emissions, as defined by the Greenhouse Gas Protocol, attributable the supply of Parts to Air Squared.
    • 17.3.4 Measure and disclose energy usage and GHG emissions for their own operations (Scope 1 and 2 as defined by the Greenhouse Gas Protocol).
    • 17.3.5 Implement a systematic approach that measures, documents, characterizes, and monitors water sources, use and discharge.
    • 17.3.6 Implement a systematic approach to identify, manage, reduce, and responsibly control disposal, and minimize waste to landfills from operations.
    • 17.3.7 Implement programs to reduce, reuse and recycle waste and promote recyclability and recycled content in packaging materials.
    • 17.3.8 Foster circularity by designing out waste by favoring sustainable sources. Implement measures to improve process efficiency and managing and treating waste.
    • 17.3.9 Implement a systematic approach to identify and prevent air pollutions, accidental spills, and release of hazardous materials into the local community and environment.
    • 17.3.10 Understand and monitor the impacts of operations and the supply base on biodiversity.

18. AIR SQUARED PROCEDURES.

  • 18.1. Air Squared issues Air Squared Procedures from time to time. Such Procedures may include, but are not limited to, warranty handling procedures or instructions, packaging and labeling procedures and instructions, logistical procedures or instructions, supplier change requests, supplier corrective actions, EDI procedures or instructions, return merchandise authorizations, Purchase Order Confirmation, or invoicing instructions. Such Air Squared Procedures will not be contradictory to an Agreement between Air Squared and the Supplier. The Supplier undertakes to comply with all Air Squared Procedures issued from time to time that the Supplier has been informed of.
  • 18.2. Should the Supplier determine that it will not be possible for the Supplier to comply with any Air Squared Procedure issued after the agreement of a Purchase Agreement, the Supplier shall notify Air Squared of its objection within two (2) weeks from the publishing of such new Air Squared Procedure and will in such case not be bound by the Air Squared Procedure in question pursuant to that specific Purchase Agreement.
  • 18.3. Should the Supplier notify Air Squared of its objection against an Air Squared Procedure, then Air Squared has the right to terminate the such Purchase Agreements that may be affected by such objection by providing Supplier thirty (30) days written notice thereof.

19. PROVISION OF PARTS.

  • 19.1. The Supplier shall, subject to the conditions of an Agreement and at commercially reasonable prices, supply Parts to such an extent that Air Squared can offer its customers spare parts for thirty-six (36) months after Air Squared’s purchases of the Part for serial production from the Supplier have ceased. Should Air Squared require supply of Parts longer than the said fifteen (15) years, the Parties shall agree on an all-time buy, at commercially reasonable prices.

20. TYPEBOUND TOOLING OWNED BY AIR SQUARED.

  • 20.1. Typebound Tooling referred to in a TPO is owned by Air Squared. The Supplier may not issue an invoice to Air Squared for Typebound Tooling and Typebound Tooling will not be considered complete until such Typebound Tooling has been approved by Air Squared.
  • 20.2. The Supplier shall mark Typebound Tooling owned by Air Squared in such a manner that Air Squared’s ownership is clearly indicated and shall inform insurers as to the fact of Air Squared’s ownership. The Supplier shall establish a register, accessible to Air Squared, of all Typebound Tooling in Supplier’s possession owned by Air Squared and, upon Air Squared’s request, certify Air Squared’s ownership of the Typebound Tooling to third parties and/or Air Squared.
  • 20.3. The Supplier may not use Typebound Tolling owned by Air Squared for production or supply Parts to any third party.
  • 20.4. The Supplier is solely responsible for (i) maintaining the Typebound Tooling, including its repair or replacement, in the condition necessary to produce the Parts in accordance with the terms of the Technical Specifications for the relevant Parts and be responsible for all wear and tear, (ii) housing the Typebound Tooling and insuring the Typebound Tooling against loss or damage, even if loss or damage occurs despite the Supplier’s exercise of due care, and (iii) keeping the Typebound Tooling identifiable as Air Squared’s property.
  • 20.5. Supplier shall defend, indemnify and hold Air Squared harmless from and against any and all loss, liability, cost and expense (including reasonable attorney’s fees and expert’s fees) arising from personal injury, death or property damage resulting from (i) Supplier’s failure to comply with its obligations under this Section 20, (ii) any use of the Typebound Tooling by any employee, agent, or contractor of Supplier in a manner contrary to the Typebound Tooling’s intended use or any instructions, manuals or other documentation issued or available to Supplier, and/or (iii) the disabling of any safety device on or about the Typebound Tooling by Supplier, its employees, agents or contractors. This obligation shall survive the expiration or termination of the any Agreement.

21. TYPEBOUND TOOLING OWNED BY THE SUPPLIER.

  • 21.1. The Supplier shall bear the cost of developing, manufacturing, maintaining, and renewing all Typebound Tooling used in the production of Parts ordered by Air Squared.
  • 21.2. If Air Squared has any Intellectual Property Rights in Typebound Tooling or has any Intellectual Property Rights in Parts manufactured by such Typebound Tooling, the Supplier may not use such Typebound Tooling for production or supply of Parts to any third party.
  • 21.3. If the Supplier enters composition proceedings, is declared bankrupt, goes into liquidation or for any other reason can be assumed to have become insolvent, the Supplier shall immediately inform Air Squared thereof. In such case, the Supplier undertakes to assist Air Squared in acquiring the Typebound Tooling which is necessary to manufacture the Parts. If the Typebound Tooling is covered by Intellectual Property Rights owned by Air Squared, the Supplier shall immediately inform the trustee, receiver, or other accredited person(s) of Air Squared’s Intellectual Property Rights to Typebound Tooling.
  • 21.4. The Supplier shall upon Air squared’s request return to Air Squared all documents transmitted regarding the development, the manufacturing and maintenance of the Typebound Tooling and Parts (e.g., drawings, technical documents).
  • 21.5. In case of termination of an Agreement for a Part without respect to the reason for such termination, Air Squared is entitled to acquire the ownership of all Typebound Tooling, used solely for production to Air Squared of such Part, against payment of market value. The Supplier hereby certifies that the Supplier at all times will be able to fulfill its obligations in this respect.
  • 21.6. Typebound Tooling may not be destroyed or scrapped without Air Squared’s written consent. Typebound Tooling that is the subject of Intellectual Property Right(s) may furthermore not be copied without the consent of the owner of such Intellectual Property Right(s).

22. INTELLECTUAL PROPERTY RIGHTS.

  • 22.1. The Supplier may use the Intellectual Property Rights owned or licensed to Air Squared, whether such Intellectual Property Rights are in Parts or in Typebound Tooling, only for the production and supply of Parts to Air Squared and may not use such Intellectual Property Rights for the production and/or supply of any goods or services to any third party.
  • 22.2. If Air Squared pays or otherwise compensates the Supplier for development or design work or contributes in other material respect to such development or design work, for Parts or Typebound Tooling, any Intellectual Property Rights arising from such work shall accrue to Air Squared. For the avoidance of doubt, Air Squared shall have the right to freely use and dispose of such Intellectual Property Rights, including but not limited to the right to modify, alter, adapt, transfer, and grant sub-licenses to such Intellectual Property Rights in its sole discretion and without restrictions.
  • 22.3. Air Squared and the Supplier may also in a separate development agreement agree on conditions for Intellectual Property Rights resulting from design and/or development work performed by the Supplier.
  • 22.4. The Supplier is responsible for ensuring that the Part, its use, or its assembly does not directly or indirectly infringe the Intellectual Property Rights of any third party. The Supplier will, at its sole cost and expense, indemnify and hold Air Squared harmless against any and all claims that may be brought against Air Squared or anybody that uses the Parts alleging that the Part, components of the Part, its use or its assembly infringes on the Intellectual Property Rights of a third party and will either replace the Part by another equivalent Part or obtain all necessary consents for the continued use of the Part. Said undertaking shall not apply if the alleged infringement is proved to result directly from development or design work performed solely by Air Squared. The Supplier shall, at Air Squared’s request, assist Air Squared in disputes in which Air Squared could become involved by reasons of such infringement and if required by Air Squared take on the conduct of any dispute.

23. PRODUCT LIABILITY AND INSURANCE.

  • 23.1. The Supplier shall defend, indemnify, and hold Air Squared harmless from and against any and all loss, liability, cost and expense (including reasonable attorney’s and expert’s fees) arising out of a claim that a defect in the design or manufacture of the Parts, including defects in material and/or manufacturing processes or techniques, caused personal injury or loss of, destruction or damage to property. This obligation of indemnification includes the Supplier’s responsibility for all judgements or settlement amounts which may otherwise be or become the responsibility of Air Squared but for the obligation of indemnification set forth in this Section 23.1. This obligation of indemnification shall inure to the benefit of Air Squared, its officers, directors, subsidiaries, successors, and assigns. The Supplier shall, at Air Squared’s request, assist Air Squared in disputes in which Air Squared could become involved by reason of such alleged defects and if required by Air Squared take on the conduct of any dispute.
  • 23.2. Neither Air Squared nor the Supplier will file crossclaims or third-party complaints against the other in product liability litigation without notifying the other Party in advance. Where practicable, notice should be given sufficiently in advance to allow thorough discussion of alternatives to such filing.
  • 23.3. If there is a risk of a Product causing personal injury or property damage due to a Part being a Defective Part, such that Air Squared decides to perform a Field Action, the Supplier shall compensate Air Squared for its costs in conjunction with such Field Action, including but not limited to costs (including reasonable attorney’s and expert’s fees) for labor, replacement, assembly and disassembly, detection and analyze, scrapping and transportation to Air Squared and/or its end-users.
  • 23.4. The Supplier shall enter into and maintain an adequate product liability insurance policy during the period of an Agreement. The policy shall cover, at a minimum, the cost of any potential Product recall, direct and indirect costs that are the result of Defective Parts, and any other potential costs incurred by Air Squared as the result of Defective Parts. The Supplier shall submit a copy of the current policy to Air Squared at least annually and upon request. The Supplier shall immediately inform Air Squared in writing in the event of a change in the policy, including but not limited to, a policy being renewed, canceled, revoked or lapses, coverage limits change, or any change in carrier.

24. OTHER PROVISIONS.

  • 24.1. The Supplier will maintain all certifications, permits and licenses currently in effect and will immediately notify Air Squared in the event any certifications, permits or licenses lapse, are suspended, canceled, or revoked.
  • 24.2. The Supplier is fully responsible for any actions or omissions including, but not limited to, the Technical Specifications of the Part of or related to its sub-suppliers.
  • 24.3. The Supplier will comply with European Reach Regulation (EU 1907/2006) considering the latter revisions of the Candidate List of Substances of Very High Concern (“SVHC”) for authorization, Authorization list (Annex XIV) and Restriction List (Annex XVII) as published by the European Chemicals Agency (“ECHA”). As per Reach Art. 33, the Supplier will inform Air Squared of any Part containing a substance identified on the candidate list of SVHC for authorization in a concentration above 0.1% weight by weight. If requested, the Supplier will provide all data required for Air Squared to submit a Substance of Concern in Products (“SCIP”) notification on their behalf.
  • 24.4. Supplier agrees to not directly or indirectly source minerals of concern such as tin, tantalum, tungsten, gold, and cobalt, also known as Conflict Minerals, defined by the U.S. Secretary of State or the U.S. Securities and Exchange Commission.
  • 24.5. Supplier represents and warrants that the Parts satisfy the Buy America requirements of 49 CFR 661, and Supplier shall provide certification of compliance with Buy America with each Part Delivery in a form reasonably acceptable to Air Squared, if requested.
  • 24.6. The Supplier must notify Air Squared in writing prior to any changes in the composition of the Part that may affect compliance with Section 24.5. In the event that the Supplier changes sub-supplier or implements changes in the Part in such a way that it has a negative impact on the compliance with Section 24.5, Air Squared shall have the right to claim compensation for any loss or damage suffered as a result of such change. For the avoidance of doubt, in case of such negative impact, Air Squared shall be entitled to resource the Parts to other suppliers. The Supplier shall not be entitled to any compensation of whatever nature due to Air Squared’s decision to resource the Parts to other suppliers according to this Section 24.6.

25. FORCE MAJEURE.

  • 25.1. Force Majeure events shall include earthquakes, typhoons, flood, war, epidemics, civil disturbances, and any other event which cannot be foreseen, prevented, or controlled. For the avoidance of doubt, strikes, lockouts or other industrial action or disputes solely related to the Supplier and/or its subcontractors or agents shall not be deemed as events of Force Majeure.
  • 25.2. If an event of Force Majeure occurs, a Party’s contractual obligations affected by such an event shall be suspended during the period of delay caused by the Force Majeure and the period for performing such obligations shall be extended, without penalty, for a period equal to such suspension.
  • 25.3. The Party claiming Force Majeure shall promptly inform the other Parties in writing and shall furnish within ten (10) days thereafter evidence of the occurrence and expected duration of such Force Majeure.
  • 25.4. In the event of Force Majeure, the Parties shall immediately consult with each other to find an equitable solution and shall use all reasonable endeavors to minimize the consequences of such Force Majeure. If the consequences of the Force Majeure event continue for a period of fourteen (14) days without a solution acceptable to both Parties, the Party that is not subject to Force Majeure shall be entitled to immediately terminate the applicable Purchase Agreements.

26. LEGAL REQUIREMENTS.

  • 26.1. Each party shall comply with all laws and regulations relevant to the performance under an Agreement. This will include but not be limited to the Supplier’s obligation to treat dangerous goods in accordance with all applicable laws and regulations.

27. EXPORT COTROLS AND ORIGIN.

  • 27.1. If any Part, or component therein, which the Supplier delivers to Air Squared is subject to national sanctions or export control regulations in those countries where the Supplier produces the Part, or component therein, or those countries from which the components originate, the Supplier shall be obliged, prior to the Parties agreeing on the Technical Specifications or any Agreement, to notify Air Squared in writing thereof and of the scope of the export restrictions and provide Air Squared with the applicable export control classification number (ECCN) or equivalent, if any, of the Part or component therein.
  • 27.2. The Supplier shall be obliged to deliver all assistance, information or certificates needed by Air Squared for customs clearance for any Part, or component therein including, upon request from Air Squared, technical information sufficient to determine the applicable export classification.
  • 27.3. If requested by Air Squared, the Supplier shall supply Air Squared with an export certificate or its equivalent containing among other things details of the origin of a Part delivered and, in relevant instances, its EC or EEA value, and either (i) the percentage by value of the Parts’ or sub-components’ content with United States origin, or (ii) a written statement that such percentage is less than 10 per cent.
  • 27.4. The origin, EC or EEA value of a Part may not be altered without the prior written consent of Air Squared.

28. CONFIDENTIALITY.

  • 28.1. This Section 28 shall apply if and to the extent that the Parties have not entered into a separate confidentiality agreement that covers the entire duration set out in Section 28.2. Section 28.4 shall however apply regardless of a separate confidentiality agreement between the Parties.
  • 28.2. All information, equipment, know-how and technical documentation, including electronically stored data and computerized geometries, to which a Party has obtained access through the Parties’ business relationship, shall for the duration of an Agreement and for the ten (10) years thereafter be treated as confidential and may not be used for any purpose other than for deliveries to Air Squared. The information may not be shown to or in any other way communicated to or used by others than such personnel of either of the Parties that are directly involved in the implementation of the deliveries to Air Squared. Copying or reproduction of such confidential information is permitted only within the framework of the fulfilment of a Party’s obligations and regarding the applicable copyright laws and regulations. However, the confidentiality undertaking outlined above shall not apply to the information which is (i) known to the public other than by breach of this Agreement, (ii) information which a Party can show was in its possession before receiving it from the other Party, and (iii) information which a Party receives from a third-party without restraints as to the disclosure thereof.
  • 28.3. Information which a Party is required to disclose by reason of law or order of a court of a competent jurisdiction may however be disclosed for such purpose. The Party requested to disclose such information shall beforehand notify the other Party of any such requirement and consult with the other Party regarding the manner of such disclosure. The Party disclosing information pursuant to this Section shall, as far as is legally possible, require the receiver of the information to treat it as confidential as required in Section 28.1.
  • 28.4. The Supplier shall at Air Squared’s request either return or destroy everything referred in Section 28.2, including copies thereof.
  • 28.5. The Supplier may not make public the business relationship of the Parties through advertising or in any other way without prior written consent from Air Squared.
  • 28.6. The Supplier shall not use any corporate name or trademarks belonging to or licensed to Air Squared other than as instructed by Air Squared in writing.
  • 28.7. The size and position of the Supplier’s trademark (brand) and other supplier related information on the Parts shall be approved by Air Squared.
  • 28.8. The Supplier shall comply with Air Squared’s instructions regarding the size and position of Air Squared’s trademark (brand).

29. WAIVER.

  • 29.1. No waiver by either Party of any breach of an Agreement shall be considered a waiver of any subsequent breach of the same or any other provision. Notwithstanding the generality of the foregoing, any failure by Air Squared to answer a question or communication from the Supplier about a delayed Delivery shall not affect Air Squared’s right to impose a sanction in accordance with an Agreement or as otherwise agreed.

30. SEVERABILITY.

  • 30.1. If any provision of an Agreement should become invalid, only the said provision shall be considered invalid while the remaining provisions shall remain in force. The Parties shall in such a case immediately conclude a new agreement that replaces the invalid provision and as far as is possible ensure through its content an equivalent result.

31. TRANSFER AND ASSIGNMENT OF AGREEMENT.

  • 31.1. A Party may neither transfer nor assign its rights or obligations under an Agreement without the written consent of the other Party.

32. TERM OF THE AGREEMENT.

  • 32.1. An Agreement shall be valid for an indefinite period unless otherwise specifically agreed.
  • 32.2. An Agreement may be terminated by:
    • 32.2.1. The Parties by mutual consent
    • 32.2.2. The Parties on the date on which either Party delivers notice to the other Party’s intent to terminate an Agreement as a result of the receiving Party’s breach of an Agreement and failure to cure such breach within forty-five (45) days after the receipt of written notice thereof
    • 32.2.3. Air Squared in the event more than 1% of delivered Parts, whether one instance of a Delivery or cumulatively over a period of time, are determined by Air Squared, in its sole discretion, to be Defective Parts and Air Squared provides notice of intent to terminate an Agreement and defective supply quantities reoccur
    • 32.2.4. Either Party by written notice to terminate by written notice twelve (12) months after the receipt of written notice thereof.
  • 32.3. An Agreement can also be terminated in accordance with sections 9.2, 18.3, and 25.4 above.
  • 32.4. In addition to the above, a Party is entitled to terminate an Agreement with immediate effect and without any liability for compensation due to such termination if (i) the other Party enters into composition proceedings, is declared bankrupt, goes into liquidation or for any other reason can be assumed to have become insolvent; or (ii) the other Party is acquired by a competitor of the Party seeking termination.
  • 32.5. If an Agreement is terminated the Supplier shall at its own cost, use all reasonable efforts to assist Air Squared in the move of production of Parts from the Supplier without any disturbances in Air Squared’s production. This includes, but is not limited to, the return of Air Squared owned Typebound Tooling without any delay upon Air Squared’s written request.

33. AMENDMENTS.

  • 33.1. Any amendment to an Agreement, these Terms and Conditions of Purchase, or any other contractual document shall be made in writing and signed by authorized representatives of both Parties.

34. LANGUAGE.

  • 34.1. All Agreements, contractual documents and transactional discussions will utilize the English language unless otherwise mutually agreed.
  • 34.2. Should any Agreements or contractual document be translated into another language other than English, the English version shall prevail in case of inconsistency.

35. APPLICABLE LAW.

  • 35.1. The rights and obligations of the Parties under an Agreement shall be interpreted and governed in all aspects by the laws of the State of Colorado. The prevailing party in any dispute hereunder shall be entitled to recover reasonable fees and expenses, including attorney’s and expert’s fees.
  • 35.2. Notwithstanding the above, a Party shall be entitled to apply for interim or conservatory measures to any competent court.

36. DISPUTES.

  • 36.1. Any disputes arising out of or relating to an Agreement shall be finally settled by arbitration in accordance with rules of arbitration promulgated by the American Arbitration Association under its Commercial Dispute Resolution Procedures (the “Rules”). Such arbitration shall take place in a venue chosen by Air Squared, at Air Squared’s sole discretion, in English before a neutral arbitrator selected pursuant to such Rules, exclusively from a list provided by the American Arbitration Association. A judgement on the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction thereof, with each Party hereby consenting to the jurisdiction of such court over it and waiving, to the fullest extent permitted by law, any defense or objection relating to in personam jurisdiction, venue, or convenience of the forum. All matters arising in any action to enforce an arbitral award shall be determined in accordance with the law and practice of the forum court. Notwithstanding the foregoing, this arbitration clause shall not apply to claims for indemnification from third-party claims where the said third party has litigated against Air Squared or Supplier, or both.
  • 36.2. Disputes arising out of or relating to several Purchase Agreements shall, however, provided that such disputes are substantially based on similar legal grounds, be settled in a single arbitration in accordance with 36.1 above.
  • 36.3. Notwithstanding the above, a Party shall be entitled to apply for interim or conservatory measures to any competent court.

If you have any questions, please contact our Purchasing Department at +1 (303) 466-2669 or purchasing@airsquared.com.

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