The document to which these terms and conditions are linked to / attached expressly includes these terms and conditions, which are irrevocably accepted by Buyer unless rejected by Buyer in a writing received by Clean Air America, Inc. (“Seller”) within ten calendar days after the document date. No changes to these terms and conditions will be binding upon Seller unless Seller expressly agrees to the changes in writing.
SALE OF EQUIPMENT. Seller will sell to Buyer, and Buyer will purchase from Seller, the equipment described in Seller’s proposal (individually and collectively referred to as the “Equipment”), subject to the terms and conditions set forth herein (together with the proposal, this “Agreement”).
PRICES AND TERMS. The Purchase Price of the Equipment shall be as set forth in Seller’s proposal. In addition, Buyer will pay or reimburse Seller for the amount of any sales, use, excise or other tax now or hereinafter imposed by reason of the production, sale, transportation, delivery or installation of the Equipment. Terms of payment are as set forth in Seller’s proposal and, if not set forth therein, shall be net ten (10) days following date of invoice. Upon notice to Buyer, Seller will have the right to revise or revoke any credit terms extended to Buyer, if any, and to withhold delivery except for cash if Buyer pays late or if Seller deems, in its sole discretion, that such action necessary or desirable to protect its right to payment. Seller may also declare the entire balance of Buyer’s debt to Seller to be immediately due and payable. Past due payments will accrue simple interest daily at the rate of 1.5% per month until paid. Payments received will first be applied to costs, then to interest, and then to principal.
DELIVERY. The delivery date set forth in Seller’s proposal is Seller’s best estimate of when the Equipment will be delivered to carrier and will not be deemed to represent a fixed or guaranteed delivery date. Delivery of goods to a common carrier or licensed trucker shall constitute delivery to Buyer. Title to and risk of loss of the Equipment will pass to Buyer upon delivery to the carrier at point of shipment.
Ordered materials are not lump-sum guaranteed, nor is freight included in pricing unless specified. Seller reserves the right to make deliveries in installments and to charge freight to Buyer for each delivery. Seller may separately invoice installment deliveries, and Buyer will pay each invoice when issued. Delay in delivery of any installment will not relieve Buyer of its obligations to accept any remaining deliveries.
Buyer must accept delivery of any ordered item within 30 days after Seller notifies Buyer that the item is available for delivery. If Buyer fails to accept delivery by such date, then Seller may store the item for Buyer, in which case Buyer will pay Seller a monthly storage fee equal to 1% of the item’s purchase price. The storage fee is due each month until Buyer accepts delivery. The fee will be prorated if storage ends on a partial month.
A partial or full payment of an invoice, and the acceptance of delivery by Buyer, will each constitute Buyer’s acknowledgment that (a) the goods conform to the description of Buyer’s order, and (b) Seller has met all its representations, warranties, and covenants with and to Buyer. All claims for alleged non-conformance of the goods, or to revoke acceptance of goods, will be deemed waived unless made in writing and received by Seller within 5 days after Buyer’s receipt of goods or, if earlier, on the 5th day after the 30-day delivery deadline specified above. Buyer will provide Seller prompt and reasonable opportunity to inspect all goods as to which any claim is made.
INSTALLATION. Installation of the Equipment by Seller is not included unless specified in Seller’s proposal. If installation by Seller is included, and delays at the installation site require Seller to expend more time than is customarily allotted for installation of such Equipment, Buyer will pay Seller at Seller’s rates then in effect for such additional time.
CANCELLATION. Buyer may only cancel this Agreement before Seller procures the material. If Buyer desires to cancel this Agreement, then Seller must receive Buyer’s written notice of its request to cancel. Buyer may only cancel this Agreement for cause. Buyer may not cancel this Agreement until (a) Seller receives written notice from Buyer detailing the cause and (b) Seller fails to cure such cause within 30 days after receipt (except as excused below). Buyer must accept any goods shipped or delivered by Seller before the end of such period. Notwithstanding the foregoing to the contrary, (I) Buyer may not cancel any special order item, and (II) Buyer may not cancel an order if Seller’s manufacturer or supplier does not authorize Seller to cancel its related order. Upon cancellation, Seller will refund any money Buyer paid Seller as to the cancelled order less a $100 cancellation fee or, if greater, any fee charged by the manufacturer or supplier.
WARRANTIES. All Seller products come with a standard 1 year unit warranty on everything but consumable parts, fuses, light bulbs, filters, etc. Seller warrants to the original purchaser that the major structural components of the goods will be free from defects in material and workmanship for one (1) year from the date of shipment. This warranty applies if the products are properly installed, maintained and operated under normal conditions.
Seller does not warrant against damages due to corrosion, abrasion, normal wear and tear, any product modification, product misapplication, or consumable parts (filters, lights, fuses, etc.). Seller makes no warranty as to any components manufactured or supplied by others. These components include electric motors, fans and control components. After Seller has been given adequate opportunity to remedy any defects in material or workmanship, Seller retains the sole option to accept return of the goods, with freight paid by the purchaser, and to ship a new cabinet to the purchaser (Purchaser pays the freight) after confirming the goods are returned undamaged and in usable condition. Such a “trade” will be the full extent of Seller’s liability and will be Buyer’s sole and exclusive remedy for warranty breach or non-conforming goods. The terms of this warranty may be modified only by a special warranty document signed by a Director of Seller.
Except as expressly provided herein, Seller provides no other warranty or representation regarding the goods sold, including the implied warranties of merchantability and fitness for purpose.
LIMITED LIABILITY. Buyer assumes all responsibility for warning and protecting its employees and independent contractors with respect to all hazards to persons and property in any way connected with the Equipment and the use thereof. Seller’s liability for any claim of any kind hereunder, whether or not based on contract, tort (including negligence), strict liability, warranty, or any other grounds, will not exceed the purchase price of the Equipment or the portion of the purchase price attributable to any part or parts of the Equipment in respect to which such claim is made. Seller will not be liable to Buyer for any incidental, consequential, indirect, special or exemplary damages (including, without limitation, lost profits, sales or other similar damages) arising in connection with this Agreement without regard to the nature of the claim or the underlying theory or cause of action (whether in contract, tort, strict liability, equity or any other theory of law) on which such damages are based. Without limiting the generality of the foregoing, Seller will have no liability with respect to the results obtained by use of the Equipment, whether in terms of product condition, operating cost, general effectiveness, success or failure, or regardless of any statement made in any written proposal submitted by Seller. It is expressly understood that any technical advice furnished by Seller with respect to the Equipment is given gratis and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s risk. Each party hereby indemnifies and holds harmless the other party from and against any and all costs, fees (including reasonable legal fees and expenses), damages liabilities and claims arising from the injury, illness or death of the indemnifying party’s employees in any way related to the Equipment, whether or not such injury, illness, or death is claimed to have been caused by, resulted from, or was in any way connected with the negligence of the party to be indemnified. Buyer hereby waives any right of subrogation that Buyer, any insurer of Buyer or any third party making a claim through Buyer, may have under this Agreement. Buyer hereby indemnifies and holds harmless Seller from and against any and all costs, fees (including reasonable legal fees and expenses), damages, liabilities and claims arising from any and all sales and use taxes due in connection with the sale, ownership, use or transfer of the Equipment and personal property taxes relating to the Equipment that arise or accrue from and after the date hereof.
CONTINGENCIES. Seller will not be liable for default or delay in the performance of any of its obligations hereunder due to act of God, accident, fire, flood, storm, epidemic, pandemic, quarantine restrictions, accidents, riot, war, act of terrorism, sabotage, explosion, strike, concerted acts of workers, mill or plant conditions, delays in transportation or manufacture, national defense requirements, embargoes, governmental law, ordinance, rule or regulation, whether valid or invalid, extraordinary equipment failure, inability to obtain electricity or other type of energy, raw or finished material from normal sources of supply, labor, equipment or transportation, or any similar or different contingency beyond its reasonable control that would make performance commercially impracticable whether or not the contingency is of the same class as those enumerated above, it being expressly agreed that such enumeration is non-exclusive; provided, however, that neither business downturn nor economic conditions will qualify as a contingency within the meaning of this paragraph. Buyer will indemnify, defend, and hold Seller harmless from any damage or inconvenience caused by any such delay.
PROPRIETARY INFORMATION. Buyer will maintain all proprietary and confidential information disclosed by Seller, including such information obtainable upon examination of the Equipment, in strict confidence and will refrain from any disclosure thereof to any third party (including any affiliate of Buyer), for any purpose, without the prior written consent of Seller. Buyer will use said information solely for purposes of maintaining and operating the Equipment, and will refrain from any use of the Equipment to design, construct, and/or operate any duplication or modification of the Equipment, or from any other use thereof, without the prior written consent of Seller. Any software, as defined below, information, logos, trademarks or trade dress and other written materials provided under this Agreement are covered under the copyright, trademark, trade secret and related intellectual property laws of many countries. Such intellectual property rights remain the exclusive property of Seller.
SOFTWARE. To the extent necessary to use the Equipment, Seller hereby grants to Buyer a non-transferable, non-exclusive license to use in accordance with the terms of this Agreement any software furnished by Seller with the Equipment. The term “software” will mean all the program codes, any subsequent corrections, new release modifications and updates and associated documentation and manuals. Buyer acknowledges that any software so furnished by Seller is the property of Seller and Buyer will not remove any identification, trademarks or notices of any proprietary restrictions from such software. The techniques, algorithms, and processes contained in the software constitute valuable trade secrets and proprietary information of Seller and will be used by Buyer only for Buyer’s own internal needs. Such software will not be sold, sublicensed, marketed, leased or in any way conveyed to a third party without Seller’s prior written authorization. Buyer will not use such software to do consulting for other parties. Buyer will be given one copy of such software and will not have the right to copy or modify such software in any way.
EXPORT. If Buyer exports any Equipment outside of the country in which the Equipment is delivered to Buyer, Buyer assumes responsibility for complying with applicable laws and regulations and for obtaining required authorizations. Buyer will not export or re-export any technical data in violation of United States export laws or regulations.
MISCELLANEOUS. Time is of the essence of this Agreement. This Agreement supersedes any prior agreement or agreements between Buyer and Seller relating to the sale of the Equipment. The entire agreement is contained herein. There are no other promises, representations or warranties with respect to the Equipment and any other or different terms or conditions in any purchase orders, or other documents issued or accepted hereunder will be deemed null and void. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the other provisions will not be affected or impaired. Any such provision held to be invalid, illegal, or unenforceable only in part or degree will be observed and performed to the extent not held invalid, illegal, or unenforceable. No amendment or waiver of this Agreement will bind either party unless expressly set forth in writing and manually signed and accepted by an authorized representative of the party sought to be bound by such writing. A waiver of any of the terms and conditions hereof will not be deemed a continuing waiver, but will apply solely to the instance to which the waiver is directed. Any headings contained in this Agreement are used only as a matter of convenience and reference, and are in no way intended to define, limit, expand or describe the scope of this Agreement. Terms used herein without definition are used as defined in Seller’s proposal. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. Any assignment of this Agreement by either party without the prior written consent of the other party will be void. This Agreement will be governed by the laws of the State of Georgia, without reference to its conflicts of laws provisions. Any controversy or claim arising out of or relating to this Agreement will be settled only by litigation in the State, Superior, or Magistrates Court of Floyd County, Georgia, or the United States District Court, Northern District of Georgia, Atlanta Division, depending on which of said courts have subject matter jurisdiction. Buyer irrevocably waives any objection that it may now or hereafter have to the bringing of any such litigation in such jurisdiction, including objections to the laying of venue and those based on the grounds of an inconvenient forum. Seller will be awarded all costs it incurs to enforce this Agreement, including its reasonable attorney’s fees, whether or not a lawsuit is filed. If this Agreement constitutes an “evidence of indebtedness” under O.C.G.A. §13 1 11, then said reasonable attorney’s fee shall be in an amount equal to 15% of the unpaid principal and interest owed to Seller.