The following Terms and Conditions of Sale shall apply to any sale of goods and services by Air Techniques International (“ATI”), a division of Hamilton Associates, Inc., a Maryland corporation. The Buyer shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding if either the goods and services referred to in a quotation from ATI are delivered and accepted by the Buyer, or if the Buyer does not within five days from the date of their Purchase Order deliver to ATI written objection to said Terms and Conditions.
1. SOLE AND EXCLUSIVE TERMS AND CONDITIONS OF SALE
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in the Buyer’s Purchase Order or in any other form issued by the Buyer, whether any such form has been acknowledged or accepted by ATI, ATI’s terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon ATI unless made in writing and signed by a duly authorized ATI representative.
Unless otherwise stated, ATI’s quotation shall be null and void unless accepted by the Buyer by the expiration date shown on the quotation.
3. LEAD TIME
Lead times and production schedules referenced in the quotation are approximate and are based on prevailing market conditions applicable respectively at the time of ATI’s quotation and acceptance of the Buyer’s Purchase Order. ATI may extend (or contract) delivery schedules or may, at its option, cancel the Buyer’s Purchase Order in full or in part without any liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
4. TERMS OF PAYMENT
Unless otherwise stated in the “Payment Terms” of the quotation, all purchases are payable by cash in advance of shipment. Unless specifically provided, no cash discounts are available to the Buyer. For purchases made on credit terms, ATI reserves the right, until the full balance has been paid, to charge the Buyer with interest on overdue payments at a rate of 18% per annum. Interest charges applied by ATI shall not be construed as granting any extension of time in the terms of payment.
5. TAXES; RE-EXPORT
Any government tax, fee, duty, or charge on the sale, purchase, delivery, or use of the goods and/or services sold hereunder shall be paid by Buyer, in addition to the purchase price, unless otherwise agreed. Buyer shall be responsible for compliance with all regulations related to the export of goods to end-users including, but not limited to, adherence to the US Export Administration Regulations. Buyer agrees to provide ATI with any end user information necessary to support compliance with all regulations related to the export of goods.
6. DELIVERY OR PERFORMANCE OF SERVICE
Delivery or performance dates for services, if applicable, are good faith estimates and do not mean that “time is of the essence.” Buyer’s failure to promptly make advance or interim payments, supply technical information, drawings and approvals if required will result in a commensurate delay in delivery or performance. If the service is carried out at ATI’s site, the delivery of the equipment to ATI´s site will be at the risk and account of the Buyer, if not otherwise agreed. The property and the risk of accidental loss or damage to the equipment shall always remain with the Buyer. Upon completion of the service, the Buyer must accept the service within 3 working days after delivery, otherwise, it shall be deemed to be accepted.
7. SHIPMENT; INSPECTION; ACCEPTANCE
Except for obligation stated under “Warranty” herein, or when Incoterms® are indicated as other than FCA: FACTORY, OWINGS MILLS, MD, ATI’s responsibility for goods ceases upon acceptance by the Buyer or Buyer’s designated carrier at the ATI Factory/Warehouse. In the event of loss or damage during shipment, the Buyer’s claim shall be against the carrier only. ATI will, however, give the Buyer any reasonable assistance to secure adjustment of the Buyer’s claim against the carrier, provided immediate notice of such claim is given by the Buyer to ATI. Buyer shall inspect goods delivered or repairs performed within 15 business days from the date of receipt of the goods or completion of the repairs. Within that time Buyer shall send ATI a written notice specifying any respects in which the goods or repairs are nonconforming. Failure to send a written notice shall constitute a waiver of Buyer’s claims for any nonconformity that an inspection, whether or not in fact carried out, should have discovered. Buyer is deemed to have accepted delivered goods on terms set forth herein, unless within 15 business days of receipt of the goods Buyer sends a written notice of rejection that provides detailed grounds for rejection. No order may be canceled or altered by Buyer except on terms and conditions accepted in writing by ATI. ATI may impose reasonable cancellation charges.
8. RETURNED GOODS
Goods may not be returned for credit unless pre-approved in writing by ATI. ATI reserves the right to decline all returns or to accept them subject to a handling/restocking charge. In the event that return authorization is granted, ATI reserves the right to adjust the amount of any credit given to the Buyer, including rejecting the return, based on the condition of the goods on arrival in ATI’s warehouse. Credit for returned goods will be issued to the Buyer only where such goods are returned by the original Buyer and not by any subsequent owner. Goods will be considered for return only if they are in their original condition and packaging. When the Buyer returns any merchandise, the Buyer shall pay all expenses of transit, and all risks of loss shall remain with Buyer until merchandise is received and accepted by ATI.
a. Manufacturer’s Warranty: Goods sold hereunder are covered by a warranty against defects in material and workmanship, provided the goods are subjected to normal use and service, for a period of twelve (12) months from the date of shipment. ATI does not provide any warranty on finished goods manufactured by others. The obligation under this warranty is limited to the repair or replacement, at ATI’s option, of defective parts, if prompt notice of any defect is given by the Buyer to ATI within the applicable warranty period and upon the Buyer’s return of the defective parts to ATI or, if designated by ATI, to the location where the applicable repairs or replacement are to be performed. The Buyer assumes all responsibility and expense for (where applicable) dismantling, removal, re-installation, and freight in connection with the foregoing. ATI does not assume liability for any applicable installation, labor, or other consequential damages.
b. Service Labor Warranty: ATI warrants to Buyer that any services provided, which may include calibration, maintenance, repairs, installation, commissioning, or other related services, will be performed free from defects in workmanship. If any direct failure to meet this warranty appears within three (3) months from the date of completion of the service, ATI as its sole obligation for breach of this warranty will correct the failure by re-performing any defective portion of the services furnished, on the conditions that ATI be promptly notified of the defect in writing and the Buyer fully complies with ATI’s instructions for return of parts or equipment for proper investigation and analysis of the problem. ATI reserves the right to refuse or delay services if the equipment is found to be in an unsafe or unsuitable condition.
c. Service Replaced Parts Warranty: If any part replaced directly by ATI during the service fails within twelve (12) months from the date of replacement, ATI will replace the failed part at no charge. This warranty does not cover other parts that were not replaced within the 12-month period and does not cover Service Labor if the failure appears more than 3 months from the date of service. Warranty coverage for replaced parts is subject to examination and verification by ATI.
d. The foregoing Manufacturer’s Warranty, Service Labor Warranty, and/or Service Replaced Parts Warranty are VOID if the product is opened, altered, or repaired by anyone other than an ATI factory-authorized service center with the one exception where requirements set forth in the manual allow an operator to replace consumables or perform recommended cleaning. These warranties are VOID if the product has been misused, neglected, subjected to accidental or intentional damage, or is not properly installed, maintained, or cleaned according to the requirements of the manual. Unless specifically authorized in a separate writing by ATI, ATI makes no warranty with respect to, and shall have no liability in connection with, goods which are incorporated into other products or equipment, or which are modified by any person other than ATI.
OTHER THAN THE FOREGOING, NO WARRANTIES, EXPRESS OR IMPLIED, ARE GIVEN BY ATI HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. FORCE MAJEURE
ATI shall not be responsible or liable for any loss or damage incurred by the Buyer resulting from causes beyond the reasonable control of ATI including, but not without limitation, acts of God, war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes, or labor disputes, or the failure of ATI’s suppliers to meet their delivery promises. The acceptance of delivery of the equipment by the Buyer shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
The following limitations of liability shall apply:
a) In no event shall ATI, its officers, directors, employees, subcontractors, suppliers, or affiliated companies be liable to the Buyer and any third party, and shall be held harmless by the Buyer and any third party, from any damage, losses or claims of whatever kind, contractual, consequential, incidental, direct or indirect, arising out of or in connection with, or resulting from the sale governed hereby, or the goods or services, including but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the goods and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing.
b) The aggregate liability of ATI, its officers, directors, employees, subcontractors, suppliers, or affiliated companies, for all claims of any kind for any loss, damage, or expense resulting from, arising out of, or connected with the goods or services, shall in no event exceed 50% of the purchase order price.
c) In no event shall ATI be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of equipment serviced. If ATI furnishes Buyer with advice or assistance concerning any products or systems that is not required pursuant to the purchase order, the furnishing of such advice or assistance will not subject ATI to any liability whether in contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise.
12. BUYER’S SPECIFICATION AND USE OF GOODS
If the goods sold are manufactured to Buyer’s specifications, or if the goods are used in conjunction with products not supplied by ATI, then Buyer shall indemnify and hold ATI harmless from and against any suits, claims, losses, expenses, and other liabilities including costs and attorneys’ fees, whether for loss, personal injury, infringement or otherwise, which result from Buyer’s specifications or use of product not furnished by ATI. Product or equipment furnished to ATI by Buyer shall be at Buyer’s sole risk and expense. Unless agreed in writing by ATI, any materials used in producing goods to the Buyer’s specifications shall remain ATI’s property.
13. EXPRESS INDEMNIFICATION
During the life of goods sold, Buyer agrees to use its best efforts to ensure that all safety and product information provided by ATI is provided to all users (customers, employees, and independent contractors). This may include warning labels, instruction manuals, and training users in the safe installation, use, and maintenance of the goods. Buyer agrees to defend, protect, indemnify, and hold ATI harmless from and against all claims, losses, expenses, damages, and liabilities to the extent caused by Buyer’s negligence, including Buyer’s failure to comply with the aforementioned safety obligations.
14. AGREEMENT; GOVERNING LAW
An acceptance of the official confirmation of the Buyer’s Purchase Order by ATI shall constitute the complete agreement, subject to the terms and conditions of sale herein set forth and shall supersede any previous agreements. The Law of the State of Maryland shall govern the validity, interpretation and enforcement of these terms and conditions of sale and of any contract of which these terms and conditions are a part.
In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the Buyer, including the calling of a creditors’ meeting, or in the event of the appointment, with or without the Buyer’s consent, of an assignee for the benefit of creditors or of a receiver, then ATI shall be entitled to cancel any unfilled part of this order without any liability whatsoever.
16. COSTS; ATTORNEYS’ FEES
If any legal action or other proceeding is brought by ATI for the enforcement of this agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this agreement, ATI shall be entitled to recover from the unsuccessful or non-prevailing party or parties, reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled at law or in equity.
17. GENERAL; MISCELLANEOUS
a) These terms and conditions are not acceptance of any offer. All orders are subject to acceptance by ATI.
b) Any action arising hereunder, or concerning the transactions evidenced hereby, in contract, in tort, or otherwise, other than an action for failure to pay, must be commenced within 12 months of the date the cause of action accrues.
c) ATI may correct any errors in the typed portion of these terms and conditions at any time.