TERMS OF SALE
AIRPOT CORPORATION TERMS & CONDITIONS OF SALE
These terms and conditions apply to the sale of the goods (the “Products”) made by Airpot Corporation (“Airpot”) to the Buyer indicated in Airpot’s Sales Order Acknowledgment (the “Order Acknowledgment”) to Buyer. The Order Acknowledgment is EXPRESSLY CONDITIONED on Buyer’s acceptance of these terms and conditions, and Airpot REJECTS any additional or conflicting terms and conditions that are contained in any written or oral communication concerning the Products made by Buyer to Airpot either before or after Buyer’s receipt of the Order Acknowledgment. Airpot’s commencement of work on the Products described in the Order Acknowledgment shall be deemed to constitute Buyer’s acceptance of the Order Acknowledgment, including these terms and conditions.
Price. The price that shall be paid by Buyer for the Products (the “Purchase Price”) is set forth in the Order Acknowledgment and does not include any taxes, duties, shipping costs, and other costs (collectively, the “Costs”) that shall also be paid by Buyer as charged by Airpot in connection with the sale of the Products.
Risk of Loss. Unless otherwise specified in the Order Acknowledgment, the Products shall be shipped by Airpot to Buyer F.O.B. point of shipment at Norwalk, Connecticut, United States of America, and all risk of loss or damage to the Products shall pass from Airpot to Buyer upon Airpot’s delivery of the Products to the carrier used to ship the Products. Airpot has the right to select the carrier to be used for shipment of the Products to Buyer unless otherwise directed by Buyer in writing to Airpot at least fourteen (14) days prior to shipment of the Products.
Delivery. Any delivery or shipping dates contained in the Order Acknowledgment are estimates only and are not guaranteed or binding on Airpot.
Warranty; Limitation of Liability. Airpot represents and warrants that the Products will be free from defects in material and workmanship at the time of shipment. The term of this warranty shall be the earlier of a period of (i) one (1) year from the date that the Products are shipped, or (ii) where it is clearly possible to establish the duty cycle of the Airpot Product, a life of 10,000,000 cycles for dashpot and actuator products and 5 million cycles for gripper products (each cycle to include the combined excursion of one retraction and one extension stroke). This is the only representation or warranty by Airpot with respect to the Products, and shall constitute the sole basis for any liability respecting quality, performance, defects, repair, delivery and replacement of the Products. In no event does Airpot provide any representation or warranty concerning any unsatisfactory operation or appearance of any of the Products caused by any customer or end user initiated conditions, including but not limited to misuse, mishandling, operation beyond published specifications, ingress of contaminants such as dirt or oil, failure to comply with published mounting instructions, distortion or breakage due to inertial shock or external blows, mounting misalignment, or excessive side loads. In the event of any defect in material or workmanship in the Products, Airpot will, at its sole option and discretion, repair or replace the Products, F.O.B. point of shipment at Norwalk, Connecticut. AIRPOT’S WARRANTY AND UNDERTAKING TO REPAIR OR REPLACE PRODUCTS AS PROVIDED HEREIN IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES CONCERNING THE PRODUCTS, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. Airpot’s liability arising out of the sale, use or operation of the Products, whether on grounds of warranty, contract, tort or otherwise (including any liability on claims for special, punitive, incidental or consequential damages), shall not in any event exceed the cost of furnishing to Buyer a replacement for any defective Products as provided herein, and the foregoing shall constitute Airpot’s sole liability to Buyer. All claims under the warranty provided for herein must be submitted by the original Buyer and processed directly through Airpot or the authorized distributor that sold the Products to the original Buyer. Returns of any Products require a Returned Material Authorization Number (RMA #) from Airpot and must refer to an original purchase order for the Products returned. No returns of Products will be accepted by Airpot without an RMA # printed clearly on the return package. Returned Products must be properly packaged when shipped to Airpot for evaluation in connection with this warranty. Airpot is not responsible for shipping and handling charges for returned Products or for returned Products damaged in shipping. Airpot reserves the right to evaluate returned Products and approve or disapprove repair or replacement of any returned Products under this warranty. User alteration or modification of any Products may, in Airpot’s discretion, void the warranty provided for herein. Any damage incurred during user installation is the sole responsibility of the user. Airpot must be able to observe or duplicate the problem with any product that is returned for service that user has determined is not functioning to factory specifications. Any product that is evaluated by Airpot may be subject to additional charges. ANY AND ALL WARRANTIES NOT SET FORTH HEREIN, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED.
Payment; Collection. All amounts due to Airpot from Buyer shall be paid in United States Dollars (USD). Unless otherwise stated in the Order Acknowledgment, Buyer shall pay the Purchase Price in full to Airpot, together with any Costs due, within thirty (30) days from the date of Airpot’s invoice to Buyer concerning the Products. Buyer agrees to and shall pay simple interest at the rate of 1% per month (12% per annum) or the maximum rate permitted by law, whichever is less, on any amounts owed by Buyer to Airpot that are not timely paid. Buyer also agrees to and shall pay all costs and expenses, including reasonable attorney’s fees, incurred by Airpot to collect any amounts owed by Buyer to Airpot.
Security Interest. Buyer hereby grants to Airpot, and Airpot shall have, a security interest in all of the Products, and in any proceeds of the Products, to secure the full payment of the Purchase Price and all other amounts due to Airpot under the Order Acknowledgment, and Airpot shall have the rights and remedies of a secured party under the Uniform Commercial Code in effect in any jurisdiction where Airpot seeks to enforce any of its rights as a secured party. Buyer shall, within ten (10) days after any written request by Airpot, properly execute and deliver to Airpot such documents, in form acceptable to Airpot, which Airpot may request for the purpose of confirming and perfecting Airpot’s security interest in the Products.
Cancellations. Any cancellation by Buyer of its order of the Products subject to the Order Acknowledgment must be in writing and delivered to Airpot prior to shipment of the Products, and Buyer shall pay to Airpot all costs incurred by Airpot in connection with any such cancellation within ten (10) days after Airpot’s written demand to Buyer for payment of such costs.
Confidentiality. Buyer hereby acknowledges and agrees that Buyer shall keep confidential any and all Product information provided by Airpot to Buyer, which information may include but is not limited to any drawings, pictures, models, data, goods, tools, materials, equipment, or any other information provided by or on behalf of Airpot to Buyer. The Purchase Price, quantity, and other terms of Buyer’s order shall also be considered confidential for the purposes of this provision.
Force Majeure. Airpot shall not be liable to Buyer or any other person for any failure or delay in the performance of any obligation relating to the Order Acknowledgment or the Products due to events beyond Airpot’s reasonable control, including but not limited to fire, storm, flood, earthquake, explosion, accident, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God or of a public enemy, breakdown in machinery or equipment, and acts or regulations of the federal, state or local governments.
Assignment. Buyer may not assign the Order Acknowledgment or any of Buyer’s rights, claims, duties or obligations in connection the order of the Products which is the subject of the Order Acknowledgment without the prior written consent of Airpot, which consent may be withheld in Airpot’s sole and absolute discretion.
Indemnification. Buyer agrees to and shall indemnify Airpot and its employees, agents, successors and assigns (collectively, the “Indemnified Parties”) against, reimburse the Indemnified Parties for, and hold the Indemnified Parties harmless from, any and all liabilities, obligations, suits, claims, proceedings, or judgments, and any damages, losses, injury, penalties, fines, costs and expenses of any kind whatsoever (including but not limited to reasonable attorneys’ fees and litigation costs), that may at any time be imposed on, incurred by, or asserted against any of the Indemnified Parties in any way relating to or resulting in whole or in part from (i) Buyer’s non-compliance with or breach of the Order Acknowledgment or any of these terms and conditions; (ii) Buyer’s use of any of the Products; (iii) any claim for infringement or alleged infringement of any license, patent, copyright, or other intellectual property right to which any of the Indemnified Parties is subjected as a result of Buyer’s use of the Products; or (iv) any injury (including death) or damage to any property occurring as a result of, or caused in whole or in party by, any act or omission of Buyer or its employees, officers, directors, agents, representatives, contractors, successors or assigns. Buyer shall pay to the Indemnified Parties all amounts owed under this indemnification provision within ten (10) days after written demand for such payment. This provision shall be construed to provide the greatest possible indemnification and protection to the Indemnified Parties, including indemnification and reimbursement of expenses (including but not limited to reasonable attorneys’ fees and litigation costs) incurred by any of the Indemnified Parties in connection with efforts to enforce this indemnification provision and collect any amounts due from Buyer under this provision; provided, however, that this indemnification provision shall be construed, and shall be deemed to be modified as and to the extent required, so as to exclude indemnification of any of the Indemnified Parties which is expressly prohibited by applicable statute or law.
Governing Law. The Order Acknowledgment (including these terms and conditions) and the rights and obligations of the parties thereunder shall in all respects be governed by and construed and enforced in accordance with the laws of the State of Connecticut without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Connecticut. Buyer acknowledges and agrees that Buyer is a “merchant” as that term is defined under the Uniform Commercial Code.
Relationship between the Parties. Buyer acknowledges that the relationship between Airpot and Buyer is that of merchant and vendee. Nothing in the Order Acknowledgment (including these terms and conditions) shall be construed as establishing an employer-employee or principal-agent relationship between Airpot and Buyer. Buyer shall not have any authority, express or implied, to make any representation or enter into any obligation on behalf of Airpot.
Jurisdiction. Buyer consents to the exclusive jurisdiction and venue of the state or federal courts located in Connecticut for any litigation regarding the Products, the Order Acknowledgment (including these terms and conditions) or the parties’ rights and obligations thereunder.
Severability. If any provision in the Order Acknowledgment (including these terms and conditions) as originally written is determined to be unenforceable or invalid in whole or in part in any litigation in which there is jurisdiction over Airpot, such provision shall be deemed to be amended to the extent necessary to be valid and effectuate as closely as possible the original intent of the provision, and if no validating construction is possible then such provision shall be severable and the invalidity or unenforceability of such provision shall not affect the validity or enforceability of any other provision herein.
Captions. The captions in these terms and conditions are for general reference and convenience only and shall not limit or alter in any way the provisions of these terms and conditions.
Entire Agreement; Modification. The Order Acknowledgment (including these terms and conditions) is the final and entire agreement between the parties concerning Airpot’s sale of the Products and shall supersede any prior or contemporaneous agreement, representation or understanding between Airpot and Buyer concerning sale of the Products to Buyer, whether written or oral. The Order Acknowledgment (including these terms and conditions) may only be modified in a writing signed by an authorized representative of Airpot which specifically refers to the Order Acknowledgment and these terms and conditions.