Terms & Conditions
- GENERAL. The following Terms & Conditions apply to the provision of all goods supplied (“Equipment”) and/or services rendered (“Services”) by Ohio Transmission Corporation or its affiliates (“Seller”) to any purchaser (“Buyer”). Seller’s offer for sale and Buyer’s acceptance of any such offer is governed exclusively by these Terms & Conditions. If an order is deemed to be an offer by Buyer, then Seller’s acceptance thereof is expressly conditioned on Buyer’s assent to these Terms & Conditions. Any additional, different or conflicting terms proposed by Buyer in any offer, acceptance, confirmation (including any purchase order or specification sheet) or otherwise (a) are requests for material alternations to these Terms & Conditions, (b) are hereby rejected and objected to by Seller, and (c) will not be binding in any way on Seller. In addition to the foregoing, acceptance of any Equipment or Services by Buyer constitutes an express waiver by Buyer of any such additional, different or conflicting terms.
- PAYMENT. The Equipment is offered at the prices quoted by Seller online. Unless otherwise agreed to in writing by Seller, payment in full will be due at the time of sale via methods provided on the website. If applicable, additional financing and or credit terms could be made available by contacting a local Air Technologies office. Notwithstanding the foregoing, Seller reserves the right to withhold shipment or to require other adequate assurances of performance of Buyer’s payment obligations as Seller, in its discretion, may require.
- DELIVERY. All Equipment will be shipped F.O.B., Seller’s premises, unless otherwise agreed to by Seller in writing. Standard freight terms are prepaid and added to the invoice. Unless otherwise specified, Air Technologies® will choose the carrier best suited for the freight and destination point. For freight collect, contact your local Air Technologies® office. If Buyer wishes to change standard delivery methods, Buyer agrees to bear any additional cost.
- RETURNS. All returns, unless otherwise agreed, require 35% restock charge, billable upon inspection and acceptance of the returned item by a local Air Technologies® facility. Items must be in resalable condition, and in original packaging. Return approval is required prior to any goods being shipped to receive consideration for inspection. Equipment returned without RMA will be denied and sent back to point of origin at the cost of the buyer. All Requests for RMA must be made within 30 days of original shipment.
- ACCEPTANCE; NON-CONFORMING EQUIPMENT. Upon Buyer’s receipt of shipment, Buyer must immediately inspect the Equipment. Unless Buyer provides Seller with written notice of any claim for shortage, defect or nonconformity in the Equipment within ten days after receipt of shipment, such Equipment will be deemed finally inspected, checked and accepted by Buyer, and Buyer’s failure to provide any such notice will be deemed to constitute a waiver of any such claim.
- CANCELLATION. Custom or special orders or Equipment modified to Buyer’s specifications are subject to the manufacturer’s cancellation charges.
- INSTRUCTION MANUAL. Where applicable, Buyer acknowledges being furnished with an instruction manual covering safe operation of the Equipment, and understands that safe operation of the Equipment requires observing the operating and service instructions contained therein.
- LIMITED WARRANTY AND DISCLAIMER. (a) Buyer acknowledges that Seller is not the manufacturer of the Equipment and that no warranty, including against patent or latent defects in material, workmanship or capacity, or with respect to the Equipment’s fitness for any particular purpose, is provided herein. The exclusive warranty with respect to the Equipment is that provided by the manufacturer of the Equipment as set forth in the manufacturer’s catalog or other listing where the Equipment is described (if any). As to such Equipment, Buyer may only proceed against the manufacturer in accordance with the manufacturer’s warranty. Used Equipment is sold in an “AS IS, WHERE IS” condition and “WITH ALL FAULTS.”
(b) Where Seller performs any service or repair work for Buyer, such work will be performed in a workmanlike manner.
(c) EXCEPT AS SET FORTH IN CLAUSES (a) AND (b) ABOVE, SELLER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT.
In most cases, manufacturers’ warranties require the buyer to adhere to predefined preventative maintenance schedules and requirements. It is the buyer’s responsibility to become familiar with, and comply with the terms of the manufacturer’s warranty. Air Technologies® does not accept liability for warranty claims denied by the manufacturer due to buyer’s failure to meet terms of warranty.
- LIMITATION OF LIABILITY; NO INCIDENTAL DAMAGES. SELLER’S LIABILITY WITH RESPECT TO ANY EQUIPMENT OR SERVICES, UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO REPAIRING OR REPLACING THE EQUIPMENT, OR REPERFORMING THE SERVICES, FOUND BY SELLER TO BE DEFECTIVE OR, AT SELLER’S DISCRETION, TO REFUNDING THE PURCHASE PRICE FOR SUCH EQUIPMENT OR SERVICES. SELLER WILL HAVE NO LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF USE, INCOME OR PROFIT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE EQUIPMENT OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR BREACH OF ANY OBLIGATION OF SELLER HEREUNDER OR IN CONNECTION HEREWITH OR BASED ON ANY THIRD PARTY ACTION.
- TRADE COMPLIANCE. (a) The Equipment and related technology may be subject to export and re-export restrictions under U.S. and other countries’ export control regulations, including, without limitation, the U.S. Export Administration Regulations, regulations of the U.S. Office of Foreign Asset Control and comparable laws and regulations of other countries, which may require U.S. or other government approval for any re-export or retransfer (“Export Control Regulations”). Buyer warrants that it (i) will adhere to and comply with (A) all applicable Export Control Regulations and (B) any applicable terms, conditions, procedures and documentation requirements made known to Buyer that may be promulgated by Seller from time-to-time to comply with the Export Control Regulations; (ii) will not, directly or indirectly, ship Equipment to Iran, North Korea, Syria, Sudan or any other country subject to trade embargoes in violation of Export Control Laws. Buyer
acknowledges that Seller will not proceed with a shipment if Seller has reason to believe that the Equipment may be destined for a sanctioned country. Buyer represents that neither it nor any of its principals, officers or directors, or any person or entity known to Buyer to be directly involved in this transaction as a freight forwarder, customer, end-user, consultant, agent or otherwise is designated on any of the U.S. government restricted parties lists, including, without limitation, the U.S. Commerce Department Bureau of Industry and Security Denied Persons List, Entity List or Unverified List, the U.S. Treasury Department Office of Foreign Asset Controls Specially Designated National and Blocked Persons List or the U.S. State Department Directorate of Defense Trade Controls Debarred Parties List or restricted parties lists of any country having jurisdiction over Buyer or the Equipment or related technology.
(b) Buyer will not request from Seller any information or documentation where the purpose of such request is to support, give effect to or comply with a boycott of any country in contravention of the laws or policies of the United States, including, but not limited to, the Arab League boycott of Israel. Seller hereby rejects any such request by Buyer and will report receipt of any such request to the relevant U.S. government office, as required by law.
(c) As it relates to the use of the Equipment, Buyer will not seek to obtain or retain business or gain any other advantage by making or offering to make any payment of money or by providing or offering to provide anything of value, directly or indirectly, to: (i) any government official; or (ii) any non-governmental person, in either case, with the intent that such official or person will perform their responsibilities improperly. Buyer warrants that it will comply with the anticorruption laws and anti-bribery laws of any country having jurisdiction over Buyer or any transaction involving the Equipment, and will in all cases comply with the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
(d) In the event Seller reasonably believes that any provision of this Section 9 has or may have been breached, Buyer will cooperate fully with Seller’s investigation to clear the matter and Seller will not be obligated to sell or provide any Equipment or Services or take any other act in furtherance of any transaction or agreement while such investigation is pending and such suspension or forbearance by Seller will not constitute a breach of any obligation to Buyer.
- INDEMNIFICATION. Buyer agrees to indemnify, defend and hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including attorneys’ fees) resulting or arising from (a) Buyer’s negligence or willful misconduct, (b) Buyer’s use, sale, handling, storage, or disposal of the Equipment or any product or waste derived therefrom, (c) Buyer’s exposing any person (including Buyer’s employees) to the Equipment or any product or waste derived therefrom, or (d) the transportation of the Equipment to Buyer after tender of the Equipment by Seller to the carrier at the F.O.B. shipping point. The foregoing will apply, without limitation, to injury to person (including death) or damage or harm to property or the environment. This indemnity will not apply to any fine, penalty, suit, action, claim, liability, judgment, cost or expense caused solely by Seller’s negligence or willful misconduct, but will apply where there is concurrent negligence or willful misconduct on the part of Seller and Buyer in proportion to Buyer’s negligence or willful misconduct.
- FORCE MAJEURE. Except for the payment of monies owed, neither party will have any liability for any breach or failure to perform that is the result of an event, condition or circumstance beyond that parties’ reasonable control, including, without limitation, acts of God, war, insurrection, or terrorism, fire, inclement weather, strikes, boycotts, or other similar circumstances. If a party becomes aware of any such event, condition or circumstance, then such party will promptly advise the other party and both parties will cooperate to ameliorate the circumstance or condition as quickly as possible.
- ENTIRE AGREEMENT. The parties agree that these Terms & Conditions, together with the Purchase Agreement or Seller Purchase Order to which they are attached, contain the entire agreement of the parties with respect to the subject matter hereof, and that modification of these Terms & Conditions will not be binding upon them, or either of them, unless such modification is expressly agreed to in writing. The invalidity or unenforceability of any particular provision of these Terms & Conditions will not affect the other provisions hereof, and these Terms & Conditions will be construed in all respects as if such invalid or unenforceable provisions were omitted.
13. GOVERNING LAW. These Terms & Conditions, the sale of Equipment and provision of Services hereunder will be governed, interpreted and construed by and in accordance with the internal substantive laws of the State of Ohio, U.S.A., without regard to the conflict of laws provisions thereof, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. All legal actions arising between the parties will be venued (filed and adjudicated) exclusively in a state or federal court located in Franklin County, Ohio. Buyer hereby agrees not to object to such venue, and consents to personal jurisdiction in such courts.