AirVent Terms and Conditions

AIR VENT, INC. PURCHASE ORDER

TERMS AND CONDITIONS

AIR VENT, INC. PURCHASE ORDER

TERMS AND CONDITIONS

These Purchase Order Terms and Conditions (“POTCs”) are incorporated by reference into and constitute a part of the Purchase Order issued by Air Vent, Inc. (“AVI”) to you, the “Supplier”. AVI and Supplier are sometimes referred to herein collectively as the “Parties”. As used herein, “Agreement” means, collectively, the Purchase Order issued to Supplier and these Purchase Order Terms and Conditions, whether or not attached to the Purchase Order. By acceptance of AVI’s purchase order, Supplier agrees to each and every term set forth herein.

1. Supplier Setup. Prior to the payment by AVI of any Supplier Invoice (as hereinafter defined), Supplier must deliver to AVI (i) Supplier’s written acceptance, by signature of an authorized representative of Supplier, of this Agreement, and (ii) evidence of Supplier’s compliance with the insurance requirements set forth herein.
2. Acceptance and Complete Agreement. This order is AVI’s offer to Supplier and is not an acceptance by AVI of any offer to sell by Supplier or of any terms and conditions contained in any such offer. This Agreement shall be deemed satisfactory to and accepted by Supplier upon the earlier of (i) Supplier’s shipment of the goods subject to this Agreement (“Goods”) or (ii) Supplier’s written acceptance pursuant to Section 1 above. Any acceptance of this Agreement is limited to the acceptance of these POTCs. Any additional or different terms contained in Supplier’s notice of acceptance, invoices, billing statements, acknowledgment forms or other related documents shall be of no force or effect and shall not become part of this Agreement. This Agreement is a complete and exclusive statement of the terms and conditions agreed to between Supplier and AVI. Any and all Supplier terms and conditions are hereby rejected by AVI.
3. Changes. Until the Goods are shipped by Supplier, AVI may make changes in written, electronic or facsimile form, including without limitation, changes in specifications, methods of shipment, warranties, packing or time or place of delivery. If such changes result in an increase or decrease in cost, or time required for the performance of this Agreement, an equitable and reasonable adjustment shall be made in the price, delivery schedule or both. If such changes result in an increase in cost or time which is unacceptable to AVI, then AVI at its sole option may cancel its request for such changes. There shall be no changes or modifications by Supplier unless expressly consented to in writing by AVI.
4. Cancellation. AVI reserves the right to cancel this Agreement, in whole or in part at any time for any reason, upon written notice to Supplier. In the event of such cancellation, AVI, in addition to any other rights it may have under applicable law or other terms of this Agreement, shall have the right: (i) to refuse to accept further delivery of Goods; (ii) to return to Supplier at Supplier’s expense any Goods already delivered and to recover all payments made therefore and expenses incident thereto; and (iii) to recover any advance payments to Supplier for undelivered or returned Goods.
5. Price Warranty. Supplier warrants that the prices for the Goods hereunder are not less favorable than those extended to any other customer for the same or similar Goods in similar quantities. In the event Supplier reduces its price for such Goods to any other customer during the term of this Agreement, Supplier agrees to reduce the prices under this Agreement correspondingly; however, nothing shall permit an increase in price without AVI’s express written consent. Supplier warrants that the price specified in this Agreement shall be complete and no additional charges shall be added without AVI’s express written consent.

6.Shipping.

(a) Timing. Time is of the essence with respect to any delivery dates provided in this Agreement. Supplier shall promptly notify AVI if it is unable to ship timely. AVI shall have the right to refuse any Goods untimely delivered and to cancel the balance of the Agreement for any part of the Goods due after untimely delivery of any shipments.

(b) Manner. All Goods must be shipped in the manner specified by AVI and packaged so as to prevent any loss or damage.

(c) Costs. Supplier shall pay all charges for shipping, packing, storage, crating, boxing, labeling, custom duties, insurance, and taxes unless AVI expressly agrees in writing to pay such charges. Any additional expense resulting from any delay, partial shipment, early shipment, change of routing or failure to comply with the terms of this Agreement shall be paid by Supplier.

(d) Title and Risk of Loss. All Goods are to be shipped F.O.B. destination specified in this Agreement unless expressly agreed upon in writing by AVI. Title to the Goods, as well as all risks of loss therefor, shall remain with Supplier until the Goods reach the directed point of destination specified in this Agreement. If AVI consents in writing to F.O.B. point of origin, title and risk of loss shall remain with Supplier until the Goods are received by the carrier designated by AVI.

(e) Force Majeure. AVI may, without penalty, delay delivery and/or acceptance occasioned by causes beyond its control.

7. Returns.

(a) AVI may return to Supplier for full credit or replacement, at AVI’s option and at Supplier’s risk and expense, including transportation charges both ways, all or part of any Goods or shipments that is/are non-conforming, below standards, defective, or in breach of any warranties, expressed or implied, received late, containing excess quantities or which is/are in any other manner not in compliance with this Agreement. If agreed by AVI and Supplier, or if Supplier does not respond to an AVI return request within forty-five (45) days, AVI may destroy such Goods for credit, or dispose of such Goods by any other means. The prior acceptance of any similar Goods or shipments shall not be considered a waiver of AVI’s right to return all or any part of any subsequent Goods or shipments so made. AVI may impose a service charge of five percent (5%) for returns of Goods pursuant to this Section. Cure of any nonconforming tender may be made only with the consent of AVI.

(b) Notice of defects in the Goods or of any other breach by Supplier under the terms of this Agreement will be considered made within a reasonable time, if promptly made after being discovered by AVI or after notification is given to AVI by its customers or the users of the Goods. The return of such Goods shall not relieve Supplier from liability for failure to ship conforming Goods under the Agreement or for liability with respect to warranties or conditions, express or implied.

(c) Resale, repackaging, or repacking for the purpose of resale or for use shall not be considered as acceptance of the Goods so as to bar AVI’s right to reject such Goods or to revoke acceptance.

(d) In addition to any other remedies available to AVI under this Agreement or applicable law, upon Supplier’s breach of this Agreement, AVI at its option and without liability to Supplier, may cancel any unshipped portion of any Goods and return prior deliveries to Supplier for payment or credit, at AVI’s option.

8. Invoicing. Supplier shall invoice (“Supplier Invoice(s)”) AVI for all Goods delivered by Supplier under this Agreement. Each Supplier Invoice shall conform with the terms of this Agreement and set forth: (a) the “Ship To” location; (b) line item costs; (c) the carrier; (d) the number of cartons, pallets or pieces, as applicable; and (e) weight of the shipment. If Supplier fails to comply with any requirement of this Section, Supplier shall be liable for and will reimburse AVI for any increased direct and indirect expense thereby incurred by AVI.
9. Payment.

(a) Payment by AVI. Subject to Section 1 above, AVI shall pay Supplier within sixty (60) days after the later of (i) the date AVI receives a Supplier Invoice, or (ii) the date on which the Goods are received by AVI.

(b) Payment by Supplier. All amounts due AVI under this Agreement shall be due and payable thirty (30) days after such obligation arises. If no Supplier Invoice(s) exist to allow deduction within said thirty (30) days, Supplier agrees to remit payment to AVI, unless AVI agrees otherwise in writing. Any amounts payable to Supplier shall be subject to all claims and defenses of AVI, and AVI may deduct and set off against any such amounts all present and future indebtedness of Supplier to AVI.

10. Limitation on Claims. In no event shall AVI be liable for anticipated profits or for incidental or consequential damages. AVI’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Agreement or from the performance or breach thereof shall in no event exceed the price of the Goods which gave rise to the claim. Notwithstanding any provision to the contrary, Supplier agrees to bring any claim or dispute (including payment disputes) within one (1) year after the occurrence of the event giving rise to such dispute.
11. Warranty.

(a) Supplier represents and warrants to AVI, in addition to all warranties implied by law, that the Goods and their design, construction, assembly, production, shipment, sale, packaging, labeling, packing, advertising, instructions and warnings or lack thereof, shall (i) be of good quality, material, and workmanship and be merchantable, fit for their intended purpose, and free from any and all defects, including, without limitation, such defects that could create a hazard to life or property; (ii) are not and have not been subject to product liability claims, except as disclosed to AVI in writing; (iii) meet the requirements of all applicable U. S. federal, state and local laws and regulations and of all applicable laws and regulations of jurisdictions outside the United States (“Laws”); (iv) not infringe or encroach upon AVI or any third party’s personal, contractual or proprietary rights, including, without limitation, patents, trademarks, copyrights, rights of privacy or publicity, or trade secrets; (v) conform to all applicable specifications and to all articles shown to AVI as samples; (vi) be well within any expiration date indicated on the packaging of the Goods; (vii) have been stored under proper conditions to preserve the quality of the Goods; and (viii) possess all performance qualities and characteristics claimed in advertisements or statements issued or authorized by Supplier.

(b) Supplier further represents and warrants that (i) the Goods are new and merchantable; (ii) the Goods are sold to AVI and free and clear of all encumbrances and liens; (iii) all manufacturer’s warranties are effective and enforceable by both AVI and AVI’s customers; and (iv) if required by law or legal precedent, the labels, packaging, instructions and warnings accompanying the Goods are multilingual and/or contain universally accepted pictographs or symbols and that Supplier, if necessary, will supply AVI with any and all instructions, warnings or safety sheets for said Goods as required by Law.

(c) Supplier’s warranties hereunder shall run to AVI, its successors, assigns and customers.

12. Indemnity.

(a) Supplier agrees to indemnify, defend and hold harmless AVI, its officers, directors, employees, agents, affiliates, successors and assigns (the “Indemnified Parties”) from any and all liabilities, costs and expenses (including reasonable attorneys’ and experts’ fees) associated with any claims, complaint, charge, penalty, demand, injury, loss, or damage resulting from or in connection with (i) the breach of any representations or warranties by Supplier or the Goods; (ii) the failure of Supplier to comply with applicable Laws or the terms of this Agreement; (iii) the design, construction, assembly, production, shipment, sale, packaging, labeling, packing, advertising, instructions and warnings or lack thereof, of the Goods; and/or (iv) the alleged infringement of any patent, copyright, trademark, or trade name. This indemnification shall be in addition to the warranty obligations of Supplier set forth above Section 11.

(b) In the event of any claim, suit or proceeding against any Indemnified Party in connection with any of the foregoing, AVI agrees to timely notify Supplier of any such claim, suit or proceeding (but the lack of timeliness of such notice shall not affect Supplier’s obligations hereunder except to the extent Supplier is actually prejudiced by such lack of timeliness). Supplier shall promptly, upon receiving notice of such claim, suit or proceeding, assume the defense of the Indemnified Parties at its sole cost, and (whether Supplier assumes such defense or for any reason fails or refuses to assume such defense) Supplier shall pay any and all sums which any Indemnified Party becomes legally obligated to pay as a result of such claim, suit or proceeding. Supplier further agrees to pay the reasonable costs and attorneys’ fees of any Indemnified Party to the extent necessary to enforce such Indemnified Party’s rights under this Agreement. AVI agrees to cooperate with Supplier in the defense or settlement of such claim, suit or proceeding, provided that Supplier shall obtain AVI’s prior written consent to any compromise, settlement or consent judgment which affects any Indemnified Party’s rights or interests. Notwithstanding the above, an Indemnified Party shall have the right, but not the obligation, to participate as it deems necessary in the handling, adjustment, or defense of any claim. If AVI reasonably determines that a defense or defenses are available to an Indemnified Party that are not available to Supplier and raising such defense or defenses would create a conflict of interest for the counsel defending the claim, the Indemnified Party will be entitled to retain separate counsel for the purpose of raising these defenses at Supplier’s expense.

(c) Notwithstanding the above, Supplier shall not enter into any settlement or compromise of the claim that would result in the admission of any liability by any Indemnified Party, any financial liability on the part of any Indemnified Party, or would subject any Indemnified Party to injunctive relief without first obtaining AVI’s written consent.

(d) Should Supplier fail to assume its obligations hereunder within thirty (30) days (or sooner if required to maintain a defense), including its obligation to diligently pursue and pay for the investigation of claims and defense of any Indemnified Party within a reasonable time, Supplier hereby agrees that the Indemnified Party shall have the right, but not the obligation, to proceed on the Indemnified Party’s own behalf to so defend itself and to thereafter require from Supplier reimbursement and indemnification for any and all costs and expenses (including reasonable attorneys’ fees). Any costs, fees and/or expenses incurred by AVI to investigate, respond to and/or defend are subject to a right of offset from any sums owed to Supplier by AVI for any goods at any time.

13. Insurance.

(a) Supplier shall obtain and maintain at its expense in full force and effect during the term of this Agreement (i) commercial general liability insurance (including contractual liability coverage) on an occurrence basis for bodily injury, death, “broad form” property damage, advertising injury and personal injury, with coverage limits of not less than Two Million ($2,000,000.00), general aggregate for bodily injury and property damage, (ii) auto liability insurance covering all owned, non-owned and hired vehicles, with coverage limits of not less than One Million Dollars ($1,000,000.00), per occurrence for bodily injury and property damage, (iii) worker’s compensation insurance as required by law in the state where the services will be performed, (iv) employer’s liability coverage for injury, disease and death with coverage limits of not less than One Million Dollars ($1,000,000.00), per accident and employee, (v) employee dishonesty coverage (including coverage for third party crimes) for loss money, securities, and other property with extended coverage to cover property and money at non-owned premises for limits not less than $250,000.00 and a deductible no greater than $5,000.00, per loss per occurrence, naming AVI as loss payee, (vi) and umbrella liability coverage on an occurrence and in the aggregate. The insurance policies described herein shall name AVI and Gibraltar Industries, Inc. as additional insureds thereunder. Supplier’s insurance coverage shall be considered primary without right of contribution of AVI’s insurance policies. Supplier shall provide AVI with a certificate of insurance evidencing the insurance coverages required herein. The insurance companies now or hereafter issuing the foregoing insurance policies shall be insurance carriers to be rated A- or better by A.M. Best company. Any material modification, renewal, replacement or cancellation of such insurance coverages shall require at least thirty (30) days prior written notice to AVI with the exception of non-payment, in which case, such policy shall require ten (10) days prior written notice to AVI. In no event shall foregoing coverage limits affect or limit in any manner Supplier’s contractual liability for indemnification under this Agreement.

(b) Within thirty (30) days following commencement of this Agreement and prior to the payment of any Supplier Invoice, Supplier shall cause the insurer to furnish to AVI a certificate of insurance evidencing such insurance and that AVI and Gibraltar have been named as additional insureds.

(c) Supplier agrees to continuously maintain such insurance for the period during which any party may, as a matter of law, be entitled to assert a claim against any Indemnified Party, or for a period of three (3) years after the last shipment made pursuant to any AVI purchase order.

(d) All insurance required by this Agreement shall be provided by and through an insurance company existing, organized and currently doing business in and under the laws of the United States of America.

14. AVI’s Property. All tools, tooling, equipment, dies, gauges, models and other tangible personal property furnished by AVI to Supplier, fabricated or acquired by Supplier for the purpose of supplying Goods to AVI, or paid for by AVI, shall be and remain the sole and exclusive property of AVI. All AVI’s property will be plainly marked and otherwise adequately identified by Supplier as “property of AVI,” will, at Supplier’s expense, be safely stored (separate and apart from Supplier’s property wherever practicable), and will be kept free of all liens, claims, encumbrances and interests of third parties. Supplier will not substitute any property for any of AVI’s property, will not deliver or make available to any third party any of AVI’s property or goods developed, manufactured or created with the aid of any of AVI’s property, and will not use any of AVI’s property except in filling the orders of AVI. All AVI’s property, while in Supplier’s custody or control, shall be held at Supplier’s risk and will be kept insured by Supplier at Supplier’s expense in an amount equal to the replacement costs, with loss payable to AVI. Supplier will, at its expense, maintain all AVI property in good condition and repair. Upon the request of AVI at any time, Supplier will prepare all AVI’s property for shipment and deliver such property to AVI in the same condition as it was originally received by Supplier, reasonable wear and tear excepted. AVI shall have the right, at all reasonable times, upon prior notice, to enter Supplier’s premises to inspect any and all of AVI’s property and any property or goods manufactured, developed or created with the aid of any of AVI’s property.
15. Technical Data. All technical information in the nature of designs, blueprints, drawings, specifications, engineering data or product know-how which is supplied to Supplier by AVI to facilitate or assist in the performance of this Agreement shall remain the sole and exclusive property of AVI. Supplier agrees to maintain such information in confidence and not to use, directly or indirectly, any such information for its own benefit or the benefit of any other person. All such information shall be returned to AVI promptly upon its request, and Supplier will not retain any copies thereof.
16. Confidentiality. Supplier shall not, without first obtaining AVI’s written consent, disclose the fact that AVI has ordered the Goods covered by this Agreement and shall not, except as required for Supplier’s performance under this Agreement, disclose any of the details associated with this Agreement to any third party. Unless otherwise agreed in writing, no commercial or technical information disclosed or supplied by Supplier to AVI shall be deemed secret or confidential, and Supplier shall have no rights against AVI with respect thereto.
17. Assignment. Supplier may not assign this Agreement or engage any subcontractor to perform this Agreement without the written consent of AVI.
18. Applicable Law. This Agreement and all disputes relating thereto shall be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to any choice-of-law rules that may require the application of the law of another jurisdiction. The parties hereby mutually agree that the State of Texas is the proper venue for all disputes and voluntarily submit to the jurisdiction of the State of Texas. Venue and jurisdiction and the application of law is also appropriate in any jurisdiction where a loss giving rise to a claim occurred, or where a claim is made or lawsuit is filed against AVI, that in any way involves the Supplier’s products. Supplier certifies that in its performance under this Agreement it will comply with all applicable Laws, including but not limited to the Fair Labor Standards Act, as amended.
19. Survival. Notwithstanding any legal presumption to the contrary, the covenants, conditions, representations, indemnities, and warranties contained in this Agreement, shall survive inspection, delivery, acceptance, payment and termination and shall be binding upon the Parties and their successors and permitted assigns.
20. Miscellaneous.

(a) All work performed by Supplier and all materials used in connection with this Agreement shall be at the risk and expense of Supplier until delivered and accepted by AVI.

(b) Any and all taxes, fees, imports or stamps, required by state, federal, local governments, or any such governmental authority in the selling, transferring, or transmitting of Goods to AVI shall be paid and assumed by Supplier.

(c) This Agreement represents the entire and integrated agreement between the Parties with respect to the sale and purchase of Goods and supersedes all prior negotiations, representations or agreements, written or oral. No changes or modifications to this Agreement are permitted, and no waiver of any rights under this Agreement are enforceable, unless made in writing as an addendum hereto and signed by both Parties.

21. Attorneys and Experts Fee Reimbursement. Supplier agrees to reimburse AVI for all attorneys’ and experts’ fees and/or expenses, whether incurred through in-house or outside attorneys, for Supplier’s failure to comply with any term or condition hereunder or of the purchase order. AVI shall have the right to consult an independent law firm at Supplier’s expense to make an assessment of any suit filed against AVI that relates in any way to Supplier’s product, and AVI shall be allowed to hold back and deduct any and all fees, expenses and costs incurred from any and all sums owed to Supplier by AVI for any goods at any time.

Rev. 03-17