Airy Technology, Inc. (“ATI”) offers to sell and accepts purchase of products (the “Products”) by Customer where Customer agrees that the sale and purchase of Products are made under these Terms and Conditions and that these Terms and Conditions constitute the entire agreement (“Agreement”) between ATI and Customer. “Customer” means the person, company or other entity purchasing the Products and/or services from ATI. Customer agrees to these Terms and Conditions of Sale in their entirety except in those areas acknowledged in writing by ATI. Additional or different terms in any oral or written communication from Customer, including but not limited to purchase orders, are void. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement and no addition to or modification of any provision of this Agreement shall be binding upon ATI unless made in writing and signed by a duly authorized representative of ATI located at ATI’s appropriate order entry location. ATI’s failure to note, challenge or object to any term, condition, or provision by Customer will not be construed as an acceptance or modification of such provision unless specifically agreed to in writing. ATI’s failure to object to provisions contained in any communication from Customer will not be deemed a waiver of the provisions herein.
All Product purchases are subject to the following terms and conditions:
1. ORDERS: All orders are subject to acceptance by ATI. ATI’s booking of an order into its order entry system will constitute its acceptance of an order. All orders will be considered binding upon entry into the ATI order entry system.
2. TERMS OF PAYMENT: Payment terms for the purchase of the Products are net thirty (30) days from date of ATI’s invoice. Customer agrees that all sums not paid when due will accrue interest daily at the lesser of a monthly rate of one and one half percent (1.5%) or the highest rate permissible by law on the unpaid balance until paid in full by Customer. Unless otherwise agreed in writing, all payments are to be made in United States dollars. In the event that ATI is required to bring legal action to collect delinquent accounts, Customer agrees to pay all costs of collection, including without limitation reasonable attorneys’ fees and costs of suit. Notwithstanding any provision of this Agreement to the contrary, Customer agrees that ATI shall retain title to each Product until Customer has paid in full all amounts due and owing to ATI for the Product. Customer acknowledges and agrees that without limitation to any other rights and remedies that ATI may have, ATI may reclaim and repossess any Product for which Customer has failed to pay in full in accordance with the terms and conditions of this Section 2, wherever such Product may be located, including without limitation any such Product in the possession of an end user of the Product. Customer hereby authorizes ATI and its agents to enter Customer’s and its end users’ premises at any time, without notice or demand, to take possession of any such Product as permitted by law, and Customer hereby agrees to indemnify and hold harmless ATI and its agents from and against any and all claims, demands, damages and liability arising as a result of or in connection with ATI’s exercise of such rights.
3. SHIPPING AND DELIVERY: All deliveries in the United States will be F.O.B. factory. All International deliveries will be Ex-works factory. A shipment method must be indicated on each Purchase Order. Customer agrees that if a shipment method is not so indicated, for domestic shipments, ATI will use UPS ground, and for international shipments, ATI will select a carrier. Delivery costs and insurance costs will be prepaid and ATI will add such charges to the invoice to be paid by Customer. ATI may in its sole discretion self-insure shipments, in which case ATI will add an insurance charge to the invoice to be paid by Customer. ATI will not assume any liability in connection with shipment nor will the shipper/carrier be construed to be an agent of ATI. Risk of all loss will pass to Customer upon delivery by ATI to carrier. Shipments may be shipped in several lots unless instructed by Customer to ship complete. ATI will deliver the Products to a carrier at ATI’s factory and, if the Products are sold to a Customer outside the United States, will clear the Products for export destined outside the United States. Customer will pay all freight charges, applicable import duties, and other necessary fees and will bear the risks of carrying out customs formalities and clearance. Orders are entered as close as possible to Customer’s requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. All shipments are deemed accepted unless, within ten (10) days of receipt, Customer supplies, in writing, a claim for shipment shortage. Customer’s failure to submit a written claim to ATI within such time period will be deemed an unqualified waiver of claims for shipment shortage. All other claims for loss, damage, or misdelivery must be filed with carrier. All Products shall be deemed accepted by Customer upon receipt subject to ATI’s Return Policy as identified in Section 9.
4. TAXES AND OTHER CHARGES: Product prices are exclusive of, and Customer will pay, applicable sales, use, service, transfer, excise, value added or like taxes, unless Customer has provided ATI with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.
5. GRANT OF LICENSE: Subject to Customer’s compliance with the terms of this Agreement and payment in full of all sums due and owing to ATI for the Product, ATI grants to Customer the following licenses (the “Licenses”): (a) a limited, personal, nonexclusive, non-transferable license to use the software pre-installed on the Product (“Firmware”) and separate software provided with the Product for installation on a personal computer or mobile device (“Standalone Software”, and together with the Firmware, “Software”) in object code format solely in connection with the Products. Customer may make one archival copy of the Standalone Software solely for backup purposes provided Customer retains all copyright and other notices from the original Software on that copy. While Customer may obtain title to a Product, the Customer shall not own the Software itself or any bug fixes,
error corrections, updates or upgrades to the Software, and ATI and its suppliers retain all rights to that Software except those expressly licensed to Customer in this Agreement. The Licenses will terminate immediately without notice if Customer fails to comply with any provision of the Licenses as indicated under this Section 5, the restrictions set forth in Section 6 below (the “Restrictions”), or any other provision of this Agreement, and upon termination of the Licenses, Customer will destroy the original and all copies of the Software.
6. RESTRICTIONS: Except as expressly authorized in Section 5 above or in Section 7 below, Customer will not: (a) copy the Software; (b) modify, translate or create derivative works of the Software; (c) reverse engineer, decompile, disassemble or attempt to derive the source code or underlying ideas or algorithms included in the Software except to the minimum extent necessary to comply with applicable nonwaivable law; (d) rent, lease, distribute, sell, assign, sublicense, transfer, encumber or otherwise make available the Software to others; (e) export the Product except in compliance with applicable law, including safety and standard setting laws and regulations in the country where the Product will be used and all export and import laws and regulations; (f) provide, disclose or make the Software available to anyone other than to Customer’s employees, contractors and agents who have a need to know and who are under an obligation of confidentiality; (g) change any proprietary rights notices on the Software; (h) permit any other person to take any of the actions described in subparagraphs (a) through (g) above.
7. THIRD PARTY SOFTWARE: The Software may include not only computer programs developed by ATI, but also proprietary computer programs developed by third parties (“Third Parties”). The Third Parties are intended beneficiaries of this Agreement and may enforce the terms of this Agreement to the extent it relates to those Third Parties’ Software (the “Third Party Software”). The Third Parties have provided the Third Party Software AS IS, without representation or warranty of any kind, and each of the Third Parties expressly disclaims the implied warranties of title, merchantability, fitness for a particular purpose or use and noninfringement. In no event will the Third Parties be liable for any lost revenues, profits, goodwill or use, the cost of substituted products or services, business interruption or any damage to or loss of any software programs, data or removable data storage media, for the restoration or reinstallation of any software programs or data, or for any direct, indirect, consequential, special, incidental or punitive damages of any kind however caused, whether arising under contract, tort (including strict liability and negligence), equity or any other theory of liability, even if those Third Parties have been advised of the possibility of those damages or even if those damages are foreseeable. To the extent a Third Party license conflicts with the terms of the Licenses as provided in Section 5 or the Restrictions as provided in Section 6 of this Agreement, the terms of that Third Party license will control but only with respect to the portion of the Software that is subject to that Third Party license, and nothing in this Agreement or the Restrictions will be deemed to replace or amend any Third Party license.
8. RESCHEDULING, DELAYS, AND CANCELLATION: Orders accepted by ATI may be cancelled, delayed, or rescheduled by Customer only with the written consent of ATI and upon payment of ATI’s cancellation or rescheduling charges. Normal cancellation or rescheduling charges will not exceed twenty five (25%) percent of the purchase price unless Products were modified, special, or not included in ATI’s normal products published in its brochures, advertising or price lists. ATI will have the right to cancel any and all orders of Customer in the event that Customer is late with payments, credit becomes impaired, or if Customer violates any of these Terms and Conditions.
9. RETURN/CHANGE POLICY: A “Return Material Authorization” number must be obtained from ATI for return of any Product. Customer may only return any unused and unopened Products within thirty (30) days of the date of delivery (“Delivery Date”) and Customer agrees to pay a ten (10%) percent restocking charge. In the event Customer returns Product between thirty-one (31) and ninety (90) days after the Delivery Date, Customer will pay a twenty (20%) percent restocking charge on any returned Products. Labor charges are not refundable. Customer may not return any Product more than ninety (90) days after the Delivery Date. Customer acknowledges that ATI does not offer or accept return of any specialty or customized Products. Where specialty Products or services are involved, Customer will be responsible for all related work in progress; however, ATI will take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. ATI may terminate any order if any representations made by Customer to ATI are false or misleading. Changes to orders will not be binding upon nor be put into effect by ATI unless confirmed in writing by ATI’s appropriate representative. Customer is responsible for all shipping costs after warranty period. ATI reserves the right to change designs and specifications for Products without prior notice to Customer.
10. WARRANTIES AND LIMITATIONS:
A. Except as otherwise provided in this Section 10, ATI warrants that all Product will be free from defects in material and workmanship under normal use for a period of two (2) years from date of shipment to Customer except that ATI does not warrant that operation of any Software will be completely uninterrupted or error free or that all program errors will be corrected. Customer will be responsible for determining that the Product is suitable for Customer’s use and that such use complies with any applicable local, state, or federal law. Provided that Customer notifies ATI in writing of any claimed defect in the Product immediately upon discovery and any such Product is returned to the original shipping point, transportation charges prepaid, within two (2) years from date of shipment to Customer and upon examination ATI determines to its satisfaction that such Product is defective in material or workmanship, i.e. contains a defect arising out of the manufacture of the Product and not a defect caused by other
circumstances, including, but not limited to accident, misuse, unforeseeable use, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing, ATI will, at its option, repair or replace the Product, shipment to Customer prepaid. ATI will have reasonable time to make such repairs or to replace such Product. Any repair or replacement of Product will not extend the period of warranty. If the Product is modified or in any way altered without the explicit written consent of ATI then the warranty is null and void. Except for the specific Products noted below, this warranty is limited to a period of two (2) years, without regard to whether any claimed defects were discoverable or latent on the date of shipment. Notwithstanding the foregoing, the length of warranty for vacuum pumps is six thousand (6,000) hours or six (6) months from the date of shipment, whichever is first to occur, batteries and accessories with all Products and Model P311 Handheld Particle Counters are warranted for (1) year from the date of shipment, and purge filters carry no warranty. If a third party battery is used in the Product, the foregoing warranty is null and void. If the battery is charged by a third party battery charger the battery warranty is null and void.
B. If Customer fails to pay when due any portion of the purchase price or any other payment required from Customer to ATI, all warranties and remedies granted under this Section 10 may, at ATI’s option, be terminated.
C. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED WITH RESPECT TO THE PRODUCTS AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING AND WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ATI WILL NOT BE LIABLE FOR, AND CUSTOMER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY ATI TO CUSTOMER REGARDING THE PRODUCTS OR CUSTOMER’S USE OF THE SAME. UNDER NO CIRCUMSTANCES WILL ATI BE LIABLE TO CUSTOMER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND CUSTOMER AGREES TO WAIVE SUCH CLAIMS. ATI’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY OR DEFECT IN THE PRODUCTS OR ANYTHING DONE IN CONNECTION WITH THE SALE OF PRODUCTS, IN TORT, (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, WILL BE AS SET FORTH IN SUBSECTION 10A HEREOF AS LIMITED BY SUBSECTION 10B HEREOF. THIS EXCLUSIVE REMEDY WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE (AS THAT TERM IS USED IN THE UNIFORM COMMERCIAL CODE) PROVIDED THAT ATI REMAINS WILLING TO REPAIR OR REPLACE DEFECTIVE PRODUCT (AS DEFINED IN SUBSECTION 10A) WITHIN A COMMERCIALLY REASONABLE TIME AFTER RECEIVING SUCH PRODUCT WITHIN THE APPLICABLE WARRANTY PERIOD. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT ATI’S PRICE FOR THE PRODUCT IS BASED UPON THE LIMITATIONS OF ATI’S LIABILITY AS SET FORTH HEREIN.
11. WARRANTY OF REPAIRS AFTER INITIAL TWO (2) YEAR WARRANTY: Upon expiration of the initial two (2) year warranty, all parts and repairs completed by an authorized ATI repair technician are subject to a six (6) month warranty. Other than the above, ATI makes no warranty of any kind, expressed or implied. Customer assumes all risk and liability resulting from use of the Products whether used singly or in combination with other Products. WARRANTY REPAIRS WILL BE COMPLETED AT THE FACTORY, BY AN AUTHORIZED SERVICE LOCATION, BY AN AUTHORIZED SERVICE TECHNICIAN, OR ON SITE AT CUSTOMER’S FACILITY BY A ATI AUTHORIZED EMPLOYEE. CUSTOMER PAYS FREIGHT TO FACTORY; ATI WILL PAY STANDARD RETURN FREIGHT DURING THE WARRANTY PERIOD. CUSTOMER MAY SELECT A FASTER METHOD OF SHIPMENT AT ITS OWN EXPENSE.
12. LIMITATION OF LIABILITY AND CUSTOMER INDEMNITY: IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, WILL ATI BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGE ARISING OUT OF THE SALE OF ITS PRODUCTS OR SERVICES TO CUSTOMER OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE PRODUCT OR SERVICES, OR LOSSES OR DAMAGE ARISING OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, WHETHER CHARACTERIZED AS DIRECT OR INDIRECT LOSSES OR DAMAGE, AND CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY, ACTIONS, OR ANY OTHER LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO CUSTOMER OR ATI. CUSTOMER’S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF ATI’S PRODUCTS OR SERVICES, OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE PRODUCT OR SERVICES, WILL BE FOR DIRECT DAMAGES AND NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WARRANTY AND STRICT LIABILITY), STATUTORY OR REGULATORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, WILL BE GREATER IN AMOUNT IN AGGREGATE THAN THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES IN RESPECT OF WHICH DAMAGES ARE CLAIMED. Customer will indemnify and hold harmless ATI, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and
all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by Customer’s possession, use or operation of any Products or services.
13. PRODUCT DISCLAIMER: ATI PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH LIFE SAFETY OR LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN.
14. MOLD, MOLD REMEDIATION: WITHOUT LIMITATION TO SECTION 13, ATI IS NOT RESPONSIBLE FOR ANY LIABILITY OR CONSEQUENTIAL DAMAGES IN REGARD TO MOLD OR MOLD REMEDIATION SERVICES. ATI PARTICLE COUNTERS COUNT PARTICLES AND ARE NOT DESIGNED TO DEFINE PARTICLE COMPOSITION.
15. PROPRIETARY INFORMATION: Customer represents that it has adopted reasonable procedures to protect Proprietary Information, as defined hereafter, including binding agreements with employees and consultants to prevent unauthorized publication, disclosure or use of such during or after the term of their employment by or services for Customer. Customer will not use Proprietary Information except as required for the use of the Products, will not disclose Proprietary Information to any third party, and will not transmit any documents or copies thereof containing Proprietary Information to any third party, except as may be authorized in writing by ATI. This Section 15 will survive termination of any agreements between the parties. “Proprietary Information” will mean information or data of ATI or a third person to whom ATI owes obligations of confidentiality, which a reasonable recipient of such information would expect to be confidential or Proprietary Information, regardless of the form of disclosure. This section 15 will not apply to information which Customer demonstrates was rightfully in Customer’s possession prior to receipt from ATI or information which Customer demonstrates is or has become available to the public or general knowledge in the industry otherwise than through the fault of Customer.
16. APPLICABLE LAW AND ACTIONS TO RECOVER DAMAGES:
A. The validity, performance, and construction of the Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law provisions. Customer and ATI agree that the exclusive proper venue for all actions arising under the Agreement shall be only in the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If any provision of these Terms and Conditions is held to be unenforceable, such holding will not affect the enforceability of any other provision. Any legal presumption that terms herein will be strictly construed against the party who drafted such terms or who benefits from such terms will not be employed, in construing or interpreting these Terms and Conditions. Prior to commencement of any legal proceedings, Customer and ATI will promptly meet at a senior level to attempt to resolve differences. Notwithstanding any attempts to resolve difference or negotiations regarding such difference, any action brought by Customer against ATI arising out of Customer’s purchase and use of the Products must be commenced within one year after such action accrues and in no event later than two years after date of shipment of such Products.
B. Class Action Waiver. CUSTOMER AND ATI AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER CUSTOMER NOR ATI WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY.
C. Waiver of Jury Trial. CUSTOMER AND ATI EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY PURCHASE FROM ATI, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
17. FORCE MAJEURE: ATI will be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. ATI’s estimated shipping schedule will be extended by a period of time equal to the time lost because of any excusable delay. In the event ATI is unable to perform in whole or in part because of any excusable failure to perform, ATI may cancel orders without liability to Customer.
18. ASSIGNMENT: ATI may assign, transfer or otherwise dispose ATI’s rights and obligations under this Agreement, in whole or in part, at any time without notice to Customer. Customer may not assign this Agreement or transfer any rights under it.