Purchaser and Seller (Air Squared Group, Inc., Air Squared, Inc., or Air Squared Manufacuturing, Inc., herein "Air Squared") hereby agree to be bound by the Terms and Conditions as agreed upon in this contract.
1. Blanket Order (When Applicable)
By ordering a blanket order quantity, the Seller agrees to give the Buyer volume discounts according to the number of units the Purchaser is committing to purchase. The Purchaser commits to purchasing the agreed upon quantity in a one (1) year period time from the purchase order date. If the Purchaser chooses not to, or is unable to purchase the agreed upon quantity in a one (1) year period of time the cancellation clause in Section 11 will apply.
Delivery of the equipment hereunder shall be made F.O.B. Broomfield, CO. Shipping dates are approximate and are based on prompt receipt of all necessary information and castings at Seller’s plant. In case of delay in furnishing complete information, dates of shipment may be extended for a reasonable time based on conditions at Seller’s plant. Receipt of the equipment by Purchaser shall constitute a waiver of all claims for delay, and in no event shall Seller be liable for special or consequential damages.
Seller shall not be liable for delay in delivery due to causes beyond its reasonable control or due to acts of God, acts of Purchaser, fires, strikes, picketing, boycotts, floods, epidemics, quarantine restrictions, war, insurrection, riot, civil or military authority, freight embargoes, transportation shortages or delays, unusually severe weather or inability to obtain necessary labor, materials, or manufacturing facilities due to such causes, and in the event of any such delay, the delivery shall be extended for a length of time equal to the period of the delay.
3. Special Tooling
Purchaser agrees that all tooling whether paid for by the Purchaser or Seller, for use by the Seller or anyone contracted by the Seller in producing product for the Purchaser, will be the property of the Seller and therefore the cost to maintain such tooling shall be the responsibility of the Seller.
Purchaser agrees to protect, indemnify and hold harmless Seller and its respective directors, officers, employees and representatives from and against any and all claims, demands and causes of action of every kind and character, including without limitation any losses, costs or expenses (including legal costs), on account of personal injury to or illness or death of persons or loss of or damage to property resulting from the supply of product in compliance with this agreement.
5. Product Warranty
Seller agrees to repair or replace F.O.B. Seller’s plant, any products manufactured by Seller which are found by Seller to be defective as to materials or workmanship within twelve(12) months from date of shipment or five thousand (5,000) hours of operation, whichever comes first, provided that written notice of claim of defect is received by Seller within the twelve (12) month period. Products claimed to be defective must be returned, freight prepaid and in accordance with Seller’s instructions to the point of manufacture, unless Seller directs otherwise. Seller will reimburse Purchaser for shipping on units that are determined by Seller to be a warranted repair. Shipping will be reimbursed at the current ground transportation rates. Shipper will also pay for returning the warranted items to the Purchaser using ground shipping. This warranty shall not apply to any product that has been subject to misuse, inadequate maintenance, neglect, damage by accident, or in transit.
Seller’s obligation with respect to such products supplied hereunder shall be limited to replacement or repair, F.O.B. Seller’s plant. In no event shall Seller be liable for consequential, incidental, or special damages or transportation, removal, reinstallation, adjustment or other expenses which may arise in connection with such products, including but not limited to delays and any other conditions which are beyond the control of Seller.
For motors, generators, controls, couplings, and other products purchased by Seller from other parties and sold to Purchaser, whether sold separately or affixed to Seller’s product, the warranty, if any, provided by the manufacturer of these products shall apply.
Purchaser acknowledges that it has investigated the applicability of this product to its stated use and that it relies upon its own investigation in determining that the product is suitable for such use. Seller makes no representations regarding the suitability of the product for its end use. SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE EXCEPT AS STATED ABOVE. PURCHASER IS RESPONSIBLE FOR DETERMINING THE SUITABILITY OF PRODUCTS SUPPLIED BY AIR SQUARED TO PURCHASER’S USE OR RESALE, OR FOR INCORPORATING THEM INTO ANY PRODUCTS OR APPLICATIONS. The limited warranty provided hereby and the obligations and liabilities of Seller hereunder are exclusive and in lieu of, and Purchaser hereby waives, all other remedies, warranties (except as to title), guarantees or liabilities, expressed or implied, written or oral, arising by law or otherwise or whether or not occasioned by Seller’s negligence. This warranty shall not be extended or altered except by written instrument signed by Seller.
All prices are F.O.B. Seller’s plant. Unless otherwise stated, all transportation, insurance and similar charges incident to delivery shall be borne by Purchaser. A Penalty of 1.5% per month will be applied to all invoices not paid in accordance to these terms. In addition, Purchaser agrees Seller may, at its own discretion, withhold subsequent deliveries to the Purchaser if any invoice or penalty remains unpaid twenty (20) business days after due date of the Invoice. Seller agrees that no less than two (2) notices will be sent to Purchaser before any such withholding of deliveries occurs. If the Purchaser fails to make timely payment as agreed to above, the customer agrees to pay any legal (including attorney fees) or other costs or expenses incurred by Seller in its effort to collect on overdue accounts whether by court proceedings or otherwise. Purchaser agrees to provide Seller with Purchaser’s updated financial statements as may be occasionally requested from time to time.
Seller’s prices do not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale or use of the products or services hereunder shall be paid by the Purchaser, or in lieu thereof the Purchaser shall provide Seller with a tax-exemption certificate acceptable to the taxing authorities.
8. General Limitations of Liability
Seller’s total liability to Purchaser for all claims of any kind, whether based on contract, tort (including negligence), strict liability or otherwise, for any loss or damage arising out of, connected with, or resulting from the performance or breach of this contract of purchase, or from all services covered by or furnished under this contract, shall in no event exceed the amount of the price of the specific product, or service contract price allocable to the unit or equipment, which gives rise to the claim. In applying the monetary limitation of Seller’s total liability, such liability shall be reduced by the sum of (1) any damages paid to Purchaser by Seller, (2) any costs incurred and settlements made by Seller under “Warranty” and (3) any refund of the price for the product in the event of a rescission.
In all cases where Purchaser’s claim, whether based upon contract, tort (including negligence), strict liability or otherwise, involves defective work or nonconforming product, or damage resulting therefrom, Purchaser’s exclusive remedies and Seller’s sole liability shall be those specifically provided for under “Warranty.”
Seller shall not be responsible for the acts and workmanship of the employees, contractors, subcontractors or agents of Purchaser.
In no event, whether based upon contract, tort (including negligence), strict liability or otherwise, and whether arising before or after completion of its obligations under this contract of purchase, shall Seller be liable to Purchaser for losses or damages caused by reason of loss of use, revenue or profits, cost of capital or special, consequential, incidental, or penal damages of any nature.
The liability, if any, for any claims, whether based upon contract, tort (including negligence), strict liability or otherwise, for any loss or damage arising out of, connected with, or resulting from, the performance or breach of this contract of purchase shall be limited to specifically identified written claims submitted prior to the expiration of the applicable warranty period as set forth under “Warranty.”
Furthermore, the Seller shall not be liable for any property damage (including the equipment within the work description) or personal injury caused by (a) the negligence or fault of the employees, contractors, subcontractors or agents of the Purchaser, or (b) by the failure or malfunctioning of any tools, equipment, facilities, or devices not furnished by the Seller, or (c) by use of instruments and/or the making of adjustments by the employees, contractors, subcontractors, or agents of the Purchaser.
In addition when maintenance service is performed, the Seller’s liability for any loss or damage shall not include units or parts of equipment upon which maintenance was not performed, or loss or damage caused by defects not observable by the field representative, or units or parts returned to use at the request of the Purchaser.
This provision for “General Limitations of Liability” shall also protect Seller’s suppliers, shall apply to the full extent permitted by law regardless of fault and shall survive termination, cancellation or completion of the work under this contract of purchase.
9. Limitations of Actions
The statute of limitations for purposes of bringing any action under this contract of purchase shall be one year from the date the cause of action accrued.
If any provision of this contract of purchase is deemed to be void, invalid or inoperative for any reason, or any phrase or clause within such provision is deemed to be void, invalid or inoperative, that phrase, clause or provision shall be deemed modified to the extent necessary to make it valid and operative; or if it cannot be so modified, then such phrase, clause or provision shall be deemed severed from this contract of purchase, with the remaining phrases, clauses and provisions continuing in full force and effect as if this contract of purchase had been signed with the void, invalid or inoperative portion so modified or eliminated.
Generally, because most products manufactured by Seller are made to order, Purchase Orders are not cancelable. If Purchaser wishes to cancel this contract of purchase, Purchaser must give notice to Seller in writing and Seller will quote to Purchaser reasonable and proper cancellation charges. The Purchase Order will not be considered cancelled until receipt of such payment by Seller.
For blanket orders, if the Purchaser wishes to cancel the order before the blanket order is fulfilled, the cancellation charge will be based on the difference between the purchase order price and the price for the quantity break that corresponds to the quantities actually supplied multiplied by the quantity of units already invoiced against the purchase order, plus the value of any work in process, plus any other reasonable and proper cancellation charges as determined by Seller.
If in the opinion of Seller, the financial condition of Purchaser does not justify continuance of the contract, Seller may require full or partial payment in advance or shall receive reimbursement for its reasonable and proper cancellation charges. In the event of bankruptcy or insolvency of Purchaser or in the event any proceeding is brought against Purchaser, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Seller shall be entitled to cancel this contract of purchase at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges.
Any transfer or assignment (including any transfer or assignment by operation of law or otherwise) of this contract of purchase or any rights hereunder by Purchaser without written consent of Seller shall be void. Seller may withhold consent for any reason. Purchaser will provide written notice to Seller no less than 60 days prior to any contemplated sale of the majority of their stock or assets.
13. Applicable Law
The rights and obligations of the parties under this contract of purchase shall be interpreted and governed in all respects by the laws of the State of Colorado.
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