STANDARD TERMS AND CONDITIONS
OF ANY AND ALL PURCHASE ORDERS / AGREEMENTS
WHEREIN AIRFASCO, INC. IS THE
SELLER, VENDOR AND/OR SUPPLIER
Notwithstanding any terms/conditions
contained within any and/or all purchase orders/agreements, (“Purchase Terms”),
submitted to Airfasco, Inc., an Ohio corporation, (“Airfasco”), from any
customer(s)/vendee(s) of Airfasco, (“Customer(s)”), and/or to which Airfasco is
a party with any Customer(s), (“Order(s)” in any event), and as a material
consideration/inducement to Airfasco under or relating to the Order(s), the
following terms/conditions, (“Controlling Terms”), shall be and/or are wholly:
(a) incorporated by reference within and as part of the Order(s); and, (b) controlling
as to any Purchase Terms conflicting therewith and/or contrary thereto:
1. Shipping: Airfasco’s pricing, (“Price”), to Customer excludes
freight/delivery, transportation, demurrage and insurance costs (if Customer
obtains insurance) for the goods, (“Delivery”).
Delivery shall always be F.O.B. Airfasco (unless expressly provided in the
Order(s) to the contrary and specifically included in the Price). Customer assumes all risk(s) of loss(es)/damage(s) to any goods upon Delivery.
2. Acknowledgment(s)/Warranties: Customer acknowledges/agrees that:
(a) Despite
Airfasco’s utilization of and expertise with applicable scientific methods for manufacturing,
treating and/or processing, imperfections relative to goods do or may
exist. The goods will substantially
conform, (“Conformance”), to applicable industry standards.
(b) Before
Customer accepts Delivery of the goods, Customer will have the full and
reasonable opportunity to inspect/test the goods, (“Inspection”), to reasonably
determine the Conformance thereof and any other issues material thereto (i.e.
defective treatment/processing, physical defects, deformity, etc.). After Customer’s Inspection (or Customer’s
failure to inspect or waiver of Inspection) and/or if Customer takes Delivery
of the goods, Airfasco shall not thereafter have any duty, liability and/or
obligation whatsoever to Customer and/or Customer’s successor(s)/assign(s),
(“Liability”), as to the goods except as otherwise expressly provided under the
Controlling Terms and Customer will have conclusively waived the same. Time is of the essence.
(c) Any
Liability of Airfasco shall in any event cease after Customer has further
processed, assembled and/or undertaken any other work, manufacturing or
processing relative to any goods and/or substantially/materially changed or
altered the condition thereof.
(d) Where
applicable, Customer is solely responsible for furnishing to Airfasco complete
and accurate print(s) and/or specifications as to the goods, (collectively the “Plans”). Customer warrants/represents to Airfasco that
the Plans will not violate, (“Violation”), any intellectual property rights of
any person(s)/entity thereto (i.e. patents, copyrights or the like). Customer will hold Airfasco harmless from any
such Violation and indemnify Airfasco as to/upon any damages that Airfasco incurs
or may incur resulting from or relating to any Violation; including, without
limitation, reasonable attorney’s and/or expert’s fees and court costs.
(e) Airfasco
will make reasonable efforts to meet the delivery date(s), but will not be
liable to Customer for Airfasco’s failure to meet such delivery date(s) or for
any delay(s) resulting in whole or in part from any cause(s) beyond Airfasco’s control;
including, without limitation, Acts of God, fires, floods, labor
strikes/stoppage, catastrophes, work conditions, material or transportation
shortages, embargoes, defaults/delays by suppliers/vendors, act(s)/omission(s)
of Customer or for other cause(s) rendering Airfasco’s Delivery of the goods
untimely, difficult and/or not possible.
3. Collection: If Customer defaults upon or breaches any of
the Purchase Terms and/or Controlling Terms, (“Default(s)”), Airfasco may: (a)
retain Customer’s deposit (if applicable) and pursue any and all
legal/equitable remedies available to Airfasco under applicable law; and, (b)
recover from Customer any and all costs/expenses which Airfasco incurs relating
to or resulting from the Default(s); including, without limitation, reasonable
legal and expert’s fees and court costs.
4. Indemnification: Customer shall indemnify Airfasco and hold Airfasco
harmless from and against any and all claims, causes of action, liabilities
and/or expenses; including, without limitation, reasonable attorney’s fees and
expert’s fees, which Airfasco incurs or may incur relating in any manner
whatsoever to Customer’s: (1) Default(s); (2) use, distribution and/or
possession of the goods; and/or, (3) intentional, reckless and/or negligent
acts and/or omissions (including and whether those of Customer and/or those of
Customer’s successor(s)/assign(s), employee(s), agent(s) and/or end-user(s)).
5. Default(s)/Cancellation: Airfasco may cancel the Order upon written
notice to Customer upon any Default(s) and/or if Customer becomes bankrupt, is
insolvent or makes any assignment(s) to or benefiting Customer’s creditor(s).
6. Order
of Precedence: The Controlling Terms
take precedence over any other additional, different or ambiguous Purchase
Terms, order(s)/form(s), communication(s), terms and conditions of Customer,
whether written or verbal, (“Other Terms”), as to the goods and constitute the
entire understanding between Airfasco and Customer relating thereto. The acceptance of any Order is subject and
limited to the Controlling Terms. When
Customer accepts the Order, Customer will be irrevocably deemed to have
assented to and accepted the Controlling Terms.
Any such Other Terms of any type/manner shall not be effective or
binding upon Airfasco unless Airfasco consents thereto in writing through Airfasco’s
duly authorized representative. Airfasco’s
Delivery of the goods to Customer shall not be deemed or construed to be Airfasco’s
acceptance of any Other
Terms.
7. Governing
Law: The Order(s) shall be governed
by and construed in accordance with
8. Waiver
of Jury Trial: Customer and Airfasco
waive any and all rights/entitlements to a jury trial upon and/or relating to
any Claims.
9. Limitation: In accordance with Ohio Revised Code Section
1302.98(A), any and/or all of Customer’s Claim(s) must be commenced within one
(1) year from the date upon which any such Claim(s) has/have accrued.
10. Severability: If any Controlling Term(s) is/are held by a
court of competent jurisdiction to be invalid, void or unenforceable, all other
Controlling Terms shall remain in full force and effect and shall not be
affected, impaired or otherwise invalidated.
11. Non-Waiver: Airfasco’s waiver of and/or acquiescence as
to any Default(s) or Airfasco’s failure to insist upon Customer’s strict
performance of any of the Purchase Terms and/or the Controlling Terms shall not
constitute Airfasco’s waiver of Customer’s subsequent and/or other Default(s)
or failure(s).
12. Disclaimer: AIRFASCO MAKES NO EXPRESS WARRANTY WHATSO-EVER
RELATING TO THE GOODS. AIRFASCO MAKES NO
IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR ANY
PARTICULAR PURPOSE AS TO ANY OF THE GOODS.
AIRFASCO IS SELLING, PROVIDING AND/OR DELIVERING THE GOODS TO CUSTOMER “AS
IS” AND NOT SUBJECT TO ANY IMPLIED WARRANTY.
13. Exclusive
Remedies: AIRFASCO SHALL NOT
BE LIABLE TO CUSTOMER AND/OR ANY SUCCESSOR AND/OR ASSIGN OF CUSTOMER FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSE-QUENTIAL DAMAGES RELATING IN ANY
MANNER WHATSOEVER TO THE GOODS WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY. CUSTOMER’S EXCLUSIVE
REMEDY RELATING TO THE GOODS SHALL BE LIMITED SOLELY TO EITHER AIRFASCO’S
REFUND OF THE PURCHASE PRICE APPLICABLE TO THE DEFECTIVE AND/OR NON-CONFORMING
GOODS (UPON CUSTOMER’S RETURN THEREOF TO AIRFASCO AT CUSTOMER’S EXPENSE) OR AIRFASCO’S
REPAIR, CURE, CORRECTION AND/OR REPLACEMENT OF ANY OF THE GOODS WHICH ARE
DEFECTIVE AND/OR NON-CONFORMING.
14. Liquidated
Damages: If and/or upon Airfasco’s default/breach
upon the Order and notwithstanding any Purchase Terms and/or Controlling Terms to
the contrary, Customer’s sole and exclusive remedy against Airfasco is and
shall be limited to and shall not exceed the price of the goods as and for
liquidated damages. Airfasco will not
otherwise be liable/responsible to Customer for any other costs, expenses
and/or damages; including, without limitation, any legal/expert’s fees, court
costs, lost business and/or profits and/or any other incidental or consequential
damages.
15. Successor(s)/Assign(s): The Controlling Terms are wholly binding
upon, benefit and/or apply to the successor(s)/assigns of Airfasco and
Customer.