STANDARD TERMS AND CONDITIONS
1.1. "Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is owned by, controlled by or under common ownership or control with such entity.
1.2. "Agreement" means the master terms agreement, long term agreement, subcontract, or other agreement that references these Terms and Conditions, and pursuant to which Orders are issued to Seller.
1.3. "Buyer" means the entity that places an Order referencing these Terms and Conditions and includes any successor or assignee of Buyer.
1.4. "Delivery Date" means the date of delivery for Goods and Services as specified in an Order.
1.5. "Goods" means goods, parts, supplies, software, technology, drawings, data, reports, manuals, other specified documentation, or items that are required to be delivered pursuant to, or in connection with, an Order, and where the context requires such Services as are necessary and incidental to the delivery of Goods under any Order. For clarity, Goods for which the Buyer has made changes to the part numbers and/or other description of the Goods as a result of a change under Section 3 of these Terms and Conditions will continue to be Goods.
1.6. "Intellectual Property" means all inventions, patents, software, copyrights, mask works, industrial property rights, trademarks, trade secrets, know-how, proprietary information and rights and information of a similar nature. Such information includes, without limitation, designs, processes, drawings, prints, specifications, reports, data, technical information, test reports, test data, and instructions.
1.7. “Order” means a Purchase Order, as defined in section 1.9 herein.
1.8. "Party" or "Parties" means Buyer and/or Seller, individually or collectively, as the context requires.
1.9. "Purchase Order" or “Order” means a paper or electronic document sent by Buyer to Seller, or where provided for in an Agreement, an entry on a Buyer website, to initiate the ordering of Goods or Services, such as a purchase order, a scheduling agreement, or other authorization or order, and including Change Orders (as defined in Sections 3.1 and 3.2, below).
1.10. "Seller" means Innovative Air Management, LLC, and/or its successors and assigns.
1.11. "Services" means any effort performed by Seller necessary or incidental to the delivery of Goods, including without limitation, design, engineering, installation, repair and maintenance. The term "Services" shall also include any effort required by an Order.
1.12. "Specifications" means all requirements with which Goods and Services and performance hereunder must comply, including, without limitation, drawings, specifications, instructions and standards, as such requirements are specified and/or referenced in Orders, as such requirements are modified from time to time by Buyer or Buyer’s Customer.
1.13. "Terms and Conditions" means this document, regardless of whether modified or unmodified by the Parties.
1.14. “In Writing” when used in this document shall include both written and electronic.
2. OFFER AND ACCEPTANCE AND TERMS OF ORDER
2.1. Each Purchase Order issued by Buyer is an offer to Seller for the purchase of Goods and/or Services and includes and is governed by the express terms contained on the Order, these Terms and Conditions, the terms contained in any addendum or supplement to the Order, any supplier manual provided by Buyer to Seller, and other document incorporated by reference in the Order or in these Terms and Conditions.
2.2. Seller will only be deemed to have accepted Buyer’s offer upon written acceptance or shipment of Goods, whichever occurs first. Any acceptance of the Order is limited to and conditioned upon Buyer’s acceptance of these Terms and Conditions.
2.3. Any proposal for additional or different terms or any attempt by Buyer to vary any of the Terms and Conditions, whether in correspondence or otherwise, shall be deemed material and is hereby objected to and rejected by Seller. But, any such proposal or attempted variance shall not operate as a rejection of the Order if Seller accepts Buyer’s offer by any method described in Section 2.2, in which case the Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever.
2.4. The Order does not constitute an acceptance of any prior offer or proposal by Seller, and any reference in the Order to any such prior offer or proposal is solely to incorporate the description or specifications of the Goods and the Services in such offer or proposal, but only to the extent that such description or specifications are not directly in conflict with the description and specifications in the Order. If the Order is found to be an acceptance of any prior offer or proposal by Seller, such acceptance shall be governed by these Terms and Conditions. Any additional or different terms in such prior offer or proposal shall be deemed material and are hereby objected to and rejected by Buyer. Buyer may cancel all or any part of the Order at any time prior to Buyer’s actual knowledge of acceptance by Seller.
2.5. In the event of any conflict between the face of the Order and these Terms and Conditions, the face of the Order shall govern.
3. CHANGE ORDERS.
3.1. Buyer may, from time to time, initiate changes by issuing to Seller written (each a “Change Order”) that alter, add to, or deduct from the Goods or Services, but that are otherwise subject to the terms applicable to the Order.
3.2. Any written request from Buyer to alter, add to, or deduct from the Goods and Services shall be deemed a Change Order.
3.3. Seller may object to the Change Order, in writing, at any time prior to delivery of the Goods. If a Change Order is accepted in writing, the Agreement between Buyer and Seller shall be deemed modified, and the Change Order shall be deemed incorporated into the Agreement between Buyer and Seller.
3.4. No modification of the Order, including any waiver of or addition to any of the Terms, shall be binding upon Seller, unless made in writing and signed by Seller’s authorized representative.
3.5. Waiver of any obligation of any Party of this Order shall not be construed as a waiver of any other obligation of this Order, unless otherwise specified herein.
4. DELIVERY AND INSPECTION
4.1. Seller shall deliver the Goods and/or perform the Services at the delivery point (the “Delivery Location”), and on the date(s) specified in the Order (the "Delivery Date"). If no Delivery Date is specified, Seller shall deliver in full within a reasonable time of receipt of the Order. If Buyer terminates the Order at any time after acceptance has occurred, but prior to delivery of the Goods, in addition to any remedies available to Seller at law or equity, Buyer shall defend, indemnify, and hold harmless Seller against any losses, damages, and reasonable costs and expenses, including but not limited to attorney fees and expenses, attributable to Buyer's termination. If Seller prevails in any legal action to enforce the Agreement, Buyer will pay all Seller’s costs of such legal action, including but not limited to attorney fees and expenses.
4.2. Buyer may inspect the Goods on the Delivery Date. Buyer, at its sole option, may only reject any portion of the Goods if the Goods are defective or nonconforming. If Buyer requires replacement of the Goods, pursuant to this Section 4, Seller shall promptly replace the nonconforming Goods.
5. SHIPPING AND DELIVERY.
5.1. With respect to any shipments of Goods by Seller, all Goods are to be shipped free on board to the Delivery Location. The title and risk of loss with respect to each such shipment of Goods will be transferred to Buyer on the date of actual receipt by Buyer at the Delivery Location.
5.2. Goods are to be suitably prepared for shipment by Seller and must be labeled, packed and shipped as required by law and in accordance with Buyer’s specifications, as specified in the Order and/or in any written directions and/or instructions as may be provided by Buyer to Seller from time to time. If the Goods are not shipped in accordance with Buyer’s specifications, Seller shall pay or reimburse Buyer for any excess costs occasioned thereby.
5.3. Unless otherwise expressly stated in the Order, Seller shall not charge Buyer for labeling, packing, boxing or crating.
5.4. Buyer may, on notice to Seller, change the rate of scheduled shipments or direct the temporary suspension of scheduled shipment. In either event Buyer shall compensate Seller for costs incurred by change in scheduled shipments.
5.5. Any representation made in a quote or otherwise regarding Seller’s production capacity shall be considered an estimate only and not any warranty that Seller can manufacture or produce the stated quantity of the Goods or the Services without the imposition of overtime charges or other surcharges.
5.6. Unless otherwise expressly stated in the Order, Buyer shall not be required to purchase the Goods or the Services exclusively from Seller.
6. SELLER’S WARRANTIES
6.1. Compliance with Law. Seller’s performance of its obligations under the Order must be in compliance with all federal, provincial, state, and local laws, ordinances, rules, codes, standards and regulations that apply to the Order, including but not limited to the United States Foreign Corrupt Practices Act, the Canadian Corruption of Foreign Public Officials Act, the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act and the Export Administration Regulations, including the requirement for obtaining any export license or agreement, if applicable (collectively, “Laws”). Seller shall furnish Buyer with certificates of compliance, where required under applicable Laws. Each invoice rendered to Buyer under the Order shall constitute written warranty by Seller that Seller has fully complied with all applicable Laws. Seller will participate in or respond to, at Seller’s cost and expense, any audit, investigation, inquiry, certification or screening process reasonably requested by Buyer or its third party vendors to verify Seller’s compliance with this section 6.1. This includes the right by Buyer or Buyer’s designee to inspect the books and records of Seller, provided that such inspection shall be conducted in a reasonable manner.
6.2. Other Warranties. Seller warrants that for a period of one year from the delivery date, all goods will (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights.
6.3. Survival of Warranties. The warranties contained in this section 6 survive any delivery, inspection, acceptance, or payment of or for the Goods or Services by Buyer. These warranties also survive any termination of the Agreement or Purchase Order and survive any modification by Change Order. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement goods to Buyer.
7.1. Except as otherwise expressly stated in the Order, Buyer will pay invoices (subject to applicable withholding taxes, if any) by the later of: (i) thirty (30) days after the end of the month during which the Goods were delivered and/or the Services performed, as the case may be, or (ii) thirty (30) days after the invoice date.
7.2. Notwithstanding the foregoing, where Buyer is entitled to receive reimbursement or other payment from Buyer’s Customer for the Goods and/or Services to be provided by Seller to Buyer under the Order, Seller will be entitled to receive payment under the Order only after and to the extent of, and in proportion to, Buyer’s actual receipt of such reimbursement or other payment from Buyer’s Customer.
8. HAZARDOUS MATERIALS. If at any time Seller generates any hazardous waste(s), as defined in 40 C.F.R.§261.3, on Buyer’s property or site, Seller will immediately notify Buyer and Seller will comply with Buyer’s policies and practices, and any applicable law, regulation, ordinance, rule, and the like, regarding management of hazardous wastes.
9. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY
9.1. Confidential Information. For purposes of the Order, “Confidential Information” means any confidential or proprietary information that belongs to a Party or a Party’s subsidiaries, including, without limitation, technical data, market data, trade secrets, trademarks, service marks, copyrights, other intellectual property, know-how, research, business plans, product information, projects, services, client lists and information, client preferences, client transactions, supplier lists and information, supplier rates, software, hardware, technology, inventions, developments, processes, formulas, designs, drawings, marketing methods and strategies, pricing strategies, sales methods, financial information, revenue figures, account information, credit information, financing arrangements and other information disclosed by one Party to another Party and/or its Affiliates in confidence, directly or indirectly, and whether in writing, orally, or by records, drawings, pictures or inspection of tangible property. “Confidential Information” does not include any of the foregoing information that has entered the public domain other than by a breach of the Order.
9.2. Intellectual Property Rights.
9.2.1. All pre-existing intellectual property of each Party will remain the exclusive property of that Party and, except as specifically provided in the Order, no Party will acquire any right, title, or interest in the other’s pre-existing intellectual property.
9.2.2. Any intellectual property developed, generated, or created during the course of Seller’s performance of the Order or incidental to the Seller’s performance of the Order shall be deemed “Supplemental Work.” The Parties agree that any such intellectual property to any part of the Supplemental Work shall be deemed work made for hire and shall be the property of Seller.
9.2.3. To the extent that right, title or interest in such intellectual property of Supplemental Work does not automatically vest in Seller, and/or such intellectual property is not deemed to be a work made for hire, Buyer irrevocably transfers and assigns all right, title, and interest in the intellectual property to Seller.
9.3. Trade Secrets
9.3.1. Buyer shall not, without the prior written consent of Seller, disseminate or cause to be disseminated, to any third-party, any Confidential Information as defined in Section 9.1. Buyer shall limit disclosure of any Confidential Information to those with a Need-to-Know and shall implement at least such safeguards as Buyer takes to protect its own Confidential Information (but in no event shall Buyer implement less than commercially reasonable safeguards) to protect against disclosure of Confidential Information.
9.3.2. Defend Trade Secrets Act Notice. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
10.1. Seller shall maintain and carry only such insurance as it deems appropriate, in its sole and exclusive discretion.
10.2. Upon request, Seller will furnish Buyer with certificates or other satisfactory proof of insurance confirming Seller’s coverage. Buyer may obtain any further insurance at its sole and exclusive cost.
11. LIMITATION ON LIABILITY. In the event that Seller breaches or otherwise fails to abide by the terms set forth in the Order, Seller shall only be liable for the cost of replacement goods and services and shall not be liable for any injury; loss suffered as a result of Seller’s breach or failure to perform under the Order, including but not limited to, loss of business activity with a customer; all damages (including but not limited to incidental, consequential, exemplary, or punitive damages if allowed by applicable law), fees (including but not limited to attorney fees and costs); penalties that Buyer must pay to third parties; and damages for loss of good will or any other remedy except as expressly stated herein.
12. FORCE MAJEURE. Notwithstanding anything else in these Terms and Conditions, Seller will not be liable for any delay or failure to perform its obligations to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of Seller, without Seller’s fault or negligence, and which by its nature could not have been reasonably foreseen by Seller (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosions, epidemic, war, invasion, terrorist acts, riots, strike, or embargos.
13.1. For Convenience. Seller may terminate this Agreement at any time and for any reason or no reason by giving at least a thirty (30) day notice in writing to Buyer. Such termination shall be without liability of any kind to Seller.
13.2. Upon Default. Upon the failure of Buyer to perform any obligation required under the Order to be performed by Buyer and if Buyer fails to cure within ten (10) days after receipt of notice from Seller of such failure to perform, Seller may terminate the Order upon written notice to Buyer.
13.3. Upon Insolvency, Bankruptcy, Etc.
13.3.1. Seller may terminate the Order, without further liability of any kind to Seller: (i) in the event of Buyer’s insolvency, bankruptcy, reorganization, receivership or liquidation; (ii) in the event that Buyer makes an assignment for the benefit of its creditors or ceases to carry on business in the ordinary course; or (iii) if a receiver is appointed in respect to Buyer or all or part of its property (collectively, an “Insolvency Event”). In the event of such termination, the Buyer will be liable for all costs, damages and expenses suffered by Seller, including legal fees and expenses.
13.3.2. In the event that Seller does not terminate the Order upon the occurrence of an Insolvency Event, Seller may request that Buyer provide such reasonable assurances as necessary that Buyer will be able to perform its obligations under the Order. Buyer and Seller may jointly agree to a change in Seller’s obligations, including Seller’s ongoing liability to perform its obligations under the Order.
14.1. Seller’s rights and remedies in these Terms and Conditions are cumulative and in addition to any other rights and remedies available at law, or in equity, or otherwise. Buyer’s rights and remedies in these Terms and Conditions are exclusive and limited as set forth herein.
14.2. Any proceeding or action initiated by Buyer for breach of contract or any other act or omission (including tort) arising from or in any way related to the Order must be commenced within six months from the date the breach, act or omission giving rise to Buyer’s claim occurs, regardless of Buyer’s knowledge of such breach, act or omission or of its consequences.
15.1. Headings. The headings in the Order are for convenience of reference only, are not part of the Order, and do not limit or otherwise affect the meaning of the Order.
15.2. Choice of Law; Forum.
15.2.1. The Order shall be interpreted and enforced in accordance with laws of the State of Michigan and of the United States of America, exclusive of the choice of law rules thereof.
15.2.2. Any litigation on any claim by Seller arising from the Order may be brought in a court of competent jurisdiction in the State of Michigan. Buyer consents to jurisdiction and service of process in accordance with applicable procedures of any such court located in the State of Michigan.
15.2.3. Before filing any claim or proceeding against Seller, Buyer agrees to endeavor first to settle the dispute by mediation administered by a mutually agreed upon mediator.
15.2.4. Should the Parties not resolve the despite by the mediation provided for in paragraph 15.2.3, any dispute raised by Buyer arising from or relating to the Order or alleged breach thereof shall be resolved by arbitration administered by either (i) if Seller agrees, the individual or entity who conducted the mediation provided for in Paragraph 15.2.3; or (2) the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
15.3.1. Except as otherwise expressly stated in the Order, any notice given or other communication sent under the Order must be in writing and must be properly delivered to its addressee by hand, prepaid courier, registered mail, e-mail (receipt confirmed) or facsimile (receipt confirmed) at the applicable address noted on the face of the Order.
15.3.2. Any notice or communication given as provided herein will be deemed to have been received at the time of its delivery, if such notice or communication is in writing, and if it is delivered via one of the following methods: by hand; on the business day following its dispatch if transmitted by courier, e-mail or facsimile; or on the third business day following its mailing if transmitted by registered mail. Either party may notify the other party, in the manner provided under either section 15.3.1 or section 15.3.2 of any change of address, for the purpose of giving notices or sending communications under the Order.
15.3.3. Buyer’s failure to provide any notice, claim, or other communication to Seller in the manner and within the time periods specified in the Order will constitute a waiver of any and all rights and remedies that otherwise would have been available upon making such notice, claim, or other communication.
15.4. Severability. If any provision of the Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Order will remain in full force and effect.
15.5. Subcontracting; Assignment. Seller may assign or delegate any right or obligation under the Order with Buyer’s prior written consent, and such consent shall not be unreasonably withheld, conditioned, or delayed. Buyer will have the right to assign the Order or its interest herein only upon Seller’s written consent.
15.6. Relationship of the Parties. Seller and Buyer are independent contracting parties and nothing in the Order shall make either Party the agent or legal representative of the other for any purpose whatsoever; nor does the Order grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other. None of the persons engaged by Seller in the performance of its obligations under the Order shall be considered as employees of Buyer, and none of the persons engaged by Buyer in the performance of its obligations under the Order shall be considered as employees of Seller.
15.7. Integration. The Order contains the entire agreement regarding the subject matter of the Order between Buyer and Seller and, except as otherwise expressly stated in the Order, supersedes all prior agreements, orders, quotations, proposals and other communications relating to the subject matter hereof. There are no other understandings or agreements, verbal or otherwise, relating to the same subject matter that exist between Buyer and Seller.
15.8. Authority. Each Party represents that the individual signing the Order on its behalf has the authority to do so and to so legally bind the party. Each Party represents that the execution, delivery and performance of the Order by such Party has been fully and validly authorized by all necessary corporate action.
15.9. Survival. The obligations of Buyer will survive termination of the Order, except as otherwise expressly stated in the Order.
Successors Bound.This Order shall be binding upon, and shall inure to the benefit of, the Parties, their respective heirs, legal representatives, successors and assigns (as provided under section.15.5, in respect of assigns).