The following terms and conditions, including any on the front side of this invoice, shall constitute the entire agreement for the purchase and sale of products and/or services from Air Automation Engineering. (Herein “AAE”). Any acceptance contained herein is made expressly conditional upon the purchaser’s assent to the terms, which are different from, in addition to, or vary, from the terms contained in the purchaser’s purchase order or request for quotation. Such assent shall be deemed to occur upon the failure of the purchaser to object in writing within five (5) days specifically to such term or request for quotation, which are different from, in addition to, or vary from AAE’s terms and conditions.
Prior to the date of delivery of any products and/or services hereunder, the purchaser shall have the right to make changes in its order provided that AAE receives written notice of the desired changes and accepts the same and provided further that the purchaser accepts the additional charge therefore as determined by AAE. Changes which interfere with or alter AAE’s vendor production schedules will not be acceptable unless the time for performance is extended for such period as deemed necessary by AAE, in its discretion. Failure of AAE to accept a purchaser’s request to change its purchase order shall not be cause for purchaser’s cancellation of its order except upon payment of a cancellation charge to be determined by AAE, in its discretion.
(A) AAE shall have the absolute right to cancel this agreement upon breach thereof by the purchaser, including but not limited to, the failure by the purchaser to make any payment required by this agreement or the insolvency or bankruptcy of the purchaser.
(B) A purchase order or any part thereof which is hereby accepted by AAE may not be cancelled unless and until AAE receives written notice of the cancellation, has determined the additional charge to be made, and the same has been accepted and paid by the purchaser. Upon receipt of a notice of cancellation, AAE shall be entitled to take whatever action it deems necessary and advisable to minimize cancellation charges.
WARRANTY-LIMITATION OF LIABILITY
(A) AAE IS NOT EXTENDING ANY WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE BEYOND THE WARRANTIES THAT MAY BE PRINTED BY THE MANUFACTURERS OF THE PRODUCTS SOLD WHICH PRINTED GUARANTEES AND WARRANTIES SHALL BE DEEMED A CONTRACT SOLELY BETWEEN THE MANUFACTURERS AND THE PURCHASER, IT BEING UNDERSTOOD BY PURCHASER THAT AAE IS IN NO RESPECT THE AGENT OF ANY MANUFACTURERS, AAE WILL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, DIRECTLY OR INDIRECTLY, ARISING FROM THE SALE, USE OR OPERATION OF SUCH PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY LOSSES DUE TO DOWN TIME OR ANY LABOR CHARGES.
(B) ANY CLAIM MADE HEREUNDER BY THE PURCHASER, WHETHER AS TO PRODUCTS DELIVERED, FOR NON-DELIVERY OF PRODUCTS, DEFECTS IN SERVICES RELATING TO ANY SYSTEM DESIGN, CONSULTATION, ENGINEERING, PROGRAMMING, ASSEMBLY, FABRICATION AND/OR INSTALLATION SHALL BE LIMITED IN ITS RECOVERY TO AN AMOUNT NOT GREATER THAN THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES IN RESPECT OF WHICH SUCH CLAIM IS MADE, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, WHETHER ANY SUCH CLAIMS OF PURCHASER INVOLVE CLAIMS OF NEGLIGENCE, PROFESSIONAL ERRORS OR OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR WARRANTY, EXPRESSED OR IMPLIED, OF AAE OR ANY OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. FURTHER, PURCHASER SHALL NOT BE ENTITLED TO RECOVER FROM AAE ANY CONSEQUENTIAL DAMAGES, DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS OR INCOME, OR ANY OTHER INCIDENTAL DAMAGES, PURCHASER, IN ACCEPTING THE PRODUCTS AND/OR SERVICES PROVIDED BY AAE, ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND ACCEPTS ALL OF THE PROVISIONS OF THIS WARRANTY DISCLAIMER COVERING THE PRODUCTS AND/OR SERVICES PROVIDED BY AAE, AND THAT PURCHASER HAS NOT RELIED ON ANY ORAL PROMISES, REPRESENTATIONS, OR STATEMENTS MADE BY ANY AAE EMPLOYEE OR OTHERWISE, CONCERNING ANY TRANSACTION.
AAE shall not be liable for damages or delays in performance due to circumstances beyond its reasonable control, including without limiting the generality of the foregoing, any priority system established by any agency of the United States Government, fires, floods, storms, and other acts of God, accidents, strikes, insurrections, war, shortage of materials, lack of transportation and failure of performance of subcontractors and/or suppliers for similar reasons. Failure of AAE to perform for any of these reasons aforesaid shall not be grounds for purchaser’s cancellation of its order, or recovery of any damages, but the delivery date shall be extended accordingly.
(A) This agreement may not be assigned or otherwise transferred by purchaser without the prior written consent of AAE and any such assignment or transfer without such prior written consent shall be null and void and of no force or effect whatsoever.
(B) AAE failure to insist, in one or more instances upon the performance of any term or terms of this agreement, shall not be construed as a waiver or relinquishment of its rights to such performance or the future performance of such term or terms and purchaser’s obligation with respect thereto shall continue in full force and effect.
(C) Any Notice or other communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, to the other party thereto at its respective address first above written. Any such notice, if so mailed, shall be deemed to have been received on the third business day following such mailing. Either party hereto may change its address for notice purposes by written notice to the other party.
(D) The paragraph headings in the agreement are used for convenience only. They form no part of this agreement, and are in no way intended to alter or affect the meaning of this agreement.
(E) This agreement may be amended at any time by mutual agreement of the parties hereto by an endorsement to this agreement signed by each of them.
(F) The invalidity, in whole or in part, of any provision of this agreement shall not affect the validity or enforceability of any other of its provisions.
(G) This agreement shall be governed by and constructed in accordance with the laws of the State of Minnesota.
All applicable federal, state, or local sales, use, or excise taxes are the responsibility of the purchaser, and shall be in addition to the price or prices stated on the front side of this agreement. Unless otherwise specifically stated, AAE shall have the right to invoice separately any such tax as may be imposed at a later time. Applicable tax exemption certificates must accompany any order to which the same applies.
(A) Net 30 days, a service of 1 % per month (12% per annual interest rate) will be charged on balances, which are over 30 days.
(B) F.O.B. shipping point + additional $ .25 per lb of shipping weight on freight in orders