Terms & Conditions

1. General.

    1. These general terms and conditions of purchase (these “Terms”) apply to the sale of any products (“Products”) by Air Engineers, L.L.C. (“Air Engineers”) to the purchaser of the Products (“Customer”).  These Terms are an integral part of and are incorporated into all invoices (each, an “Invoice”), offers, and agreements for the sale of Products by Air Engineers to Customer (each, an “Order”).  Customer and Air Engineers each agree that these Terms are the exclusive terms and conditions of sale between Air Engineers and Customer, that they apply to each Invoice, and that they supersede and replace all other prior and contemporaneous quotes, proposals, and other communications and understandings between the parties, whether oral, written, electronic or implied, relating to the subject matter hereof.  Any additional, inconsistent or different terms or conditions contained in Customer’s purchase order or other documents submitted to Air Engineers by or on behalf of Customer at any time, whether before or after the date of an Order, shall be deemed a material alteration and not a rejection of these Terms, and are hereby expressly rejected by Air Engineers. These Terms shall be deemed accepted by Customer without any such additional, inconsistent or different terms and conditions, except to the extent expressly accepted by Air Engineers in a writing signed by Air Engineers. In the event of any conflict between these Terms and/or any other separate written document issued and signed by Air Engineers with terms intended to be applicable to a specific Order, the provisions of such special terms issued by Air Engineers shall prevail over the provisions of these Terms with respect to such applicable Order.

2. Invoices.

    1. An agreement for the sale of Products will be concluded only upon issuance of an Invoice by Air Engineers.  Any modification made to an Invoice by Customer shall not be binding upon Air Engineers unless expressly agreed between the parties.

3. Delivery.

    1. Delivery Time.  Air Engineers shall deliver the Products within a reasonable time after the receipt of Customer’s Order, subject to availability of the Products.  Delivery dates given by Air Engineers in an Order or other documents are estimates only and are subject to shipping variations and requirements.  Unless otherwise agreed to in writing, Air Engineers shall deliver the Products to Air Engineers’ designated place of business (the “Delivery Point”) using its standard methods for packaging and shipping such Products.
    2. Failure to Meet Deadlines.  As soon as Customer is aware of a risk of delay in taking delivery of the Products, Customer shall inform Air Engineers of this immediately.  Without prejudice to any other rights to claim damages or to enforce any other remedy provided by law, if Customer does not take delivery of the Products in the quantities and/or within the required time, Air Engineers reserves the right to: (i) cancel the Order, in whole or in part, and/or (ii) sell the Products to another party at the expense and risk of Customer.

4. Payment.

    1. Payment Terms.  Unless agreed otherwise, the prices indicated in an Invoice are fixed and cannot be revised.  Unless agreed otherwise, Customer shall pay all invoiced amounts within the deadlines established in each Invoice.  Payment shall be made pursuant to the instructions contained in the Invoice.
    2. Late Payment.  Air Engineers reserves the right, among other remedies, either to cancel an Order or an Invoice or to suspend further deliveries to Customer in the event Customer fails to pay for all invoiced amounts within the deadlines established in each Invoice.  Additionally, a service charge equal to 18% per annum, charged monthly, may be applied, at Air Engineer’s sole discretion, against the unpaid balance of any past due Invoice. Where the annual rate of 18% exceeds the maximum allowed by applicable law, the charge shall be the maximum allowed. Customer shall reimburse Air Engineers for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

5. Product Compliance; Inspections; Installation.

    1. Product Compliance.  The Products delivered shall comply with the specifications contained in the Order.  Any modification to the Products, even minor, with respect to an Order shall be the subject of a written agreement between the parties.
    2. Inspections.  Customer shall inspect the Products within five (5) business days of receipt (the “Inspection Period”).  Customer will be deemed to have accepted the Products unless it notifies Air Engineers in writing of any non-conformity during the Inspection Period and furnishes such written evidence or documentation as required by Air Engineers.  Any acceptance of the Products shall waive Customer’s right to subsequently reject or revoke acceptance of such Products for non-conformity with the Order.  If Customer timely notifies Air Engineers of any non-conforming Products, Air Engineers shall, in its sole discretion (i) replace such non-confirming Products with conforming Products; or (ii) credit or refund the amounts invoiced or paid for such non-conforming Products.  Customer shall ship, at its expense and risk of loss, the non-conforming Products to the Delivery Point.  If Air Engineers exercises its option to replace non-conforming Products, Air Engineers shall, after receiving Customer’s shipment of non-conforming Products, deliver such replacement Products to the Delivery Point.
    3. Installation.  Customer shall install the Products according to the applicable manufacturer’s instructions, recommended practices and guidelines.  Customer shall comply with all codes and accepted industry practices and maintain all necessary permits and licenses required by applicable law.  Customer shall maintain a record of the location of all the Products it has installed.  Such record shall include for each installed Product (i) the model and serial number, (ii) the installation date, (iii) the end user, and (iv) the address of the installation.  Customer further agrees to make the information contained in this record available at no charge to Air Engineers upon request.

6. Transfer of Title and Risk.

    1. Unless specified otherwise in a separate agreement, including but not limited to an executed Consignment Agreement, the title to the Products and the transfer of risk shall pass to Customer upon delivery of the Products to the Delivery Point.

7. Warranty Disclaimer; Indemnification; Insurance.

    1. Pass-Through Warranties.  Air Engineers does not manufacture any Products. All Products purchased under these Terms are being provided by a third party. To the extent possible, Air Engineers will pass through any manufacturer’s warranties applicable to the Products directly to Customer and will work with Customer to obtain warranty services thereunder. The warranty for any Products will be as specified in the documentation provided with the Products. If the manufacturer’s documentation provided does not specify a warranty, then Products are provided on an “AS IS” basis.
    2. Warranty Disclaimer.  AIR ENGINEERS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCTS AND EXPRESSLY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES ABOUT THE PRODUCTS INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY OTHER EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF, OR RELATING TO, COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
    3. Indemnification.  To the fullest extent allowed under applicable Laws and notwithstanding the negligence (whether comparative, concurrent, sole, or otherwise) of any Person entitled to indemnification under this Agreement, Customer assumes all liability for, and Customer shall defend, indemnify, and hold harmless Air Engineers and its respective parent and affiliate companies and all of its respective officers, directors, managers, members, shareholders, employees, agents, successors, and assigns from and against, all claims, costs, expenses, or liabilities (including without limitation, attorneys’ fees and expenses, expert witness fees, court costs, and other litigation or pre-litigation expenses) incurred by, or assessed or alleged against, any of them that are caused in whole or in part by, or arise out of or relate to, any one or more of the following: (i) any act, omission, negligence, recklessness, or willful misconduct of Customer or its agents, employees, or contractors; (ii) the management, conduct, or operation of Customer’s business (including the sale, installation, servicing, promotion, or advertising of Products); (iii) Customer’s breach or violation of, or default in the performance under, any provision of this Agreement; (iv) the untruth, incorrect, false, or misleading nature of any of Customer’s representations or warranties in this Agreement; (v) third-party claims against Air Engineers arising out of, or relating to, this Agreement or the relationship or transactions created or contemplated in or by this Agreement; or (vi) Customer’s violation of any applicable Law. This Agreement shall be deemed to be and construed as an insured contract. Customer’s indemnity obligation shall not be limited as to amount or type of damages (a) by the provisions of any worker’s compensation act, disability act, or other employee benefit act, or (b) by any insurance policy. In the event Customer resells the Products supplied by Air Engineers, Customer will request and use reasonable efforts to obtain from its purchaser an indemnification similar to the foregoing for the benefit of Customer and Air Engineers.
    4. Insurance.  Customer shall have taken out an insurance policy covering its liability for direct or indirect damages that may be suffered by Air Engineers.  All policies shall be primary and non-contributory insurance (and any insurance that Air Engineers maintains will be excess and non-contributory with Customer’s coverages). Upon Air Engineers’ request, Customer shall provide proof that it maintains the insurance as required hereunder.

8. Intellectual Property Rights.

    1. Customer shall abstain from granting the use of or from using the intellectual property rights of Air Engineers.
    2. Customer undertakes to protect the intellectual property rights mentioned above and, in this respect, to ensure that its employees, representatives and agents do not infringe them.  Customer also undertakes to immediately inform Air Engineers about any infringement or damage to these rights that may come to its knowledge and to provide Air Engineers with any assistance in the context of a dispute related thereto.

9. Termination.

    1. In addition to any remedies that may be provided under these Terms, Air Engineers may terminate these Terms and any applicable Order or Invoice with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under an applicable Invoice; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

10. Governing Law; Waiver of Jury; Arbitration.

    1. Governing Law.  These Terms and each applicable Order or Invoice shall be construed in all respects in accordance with the laws of the State of Alabama, without regard to the principles of conflicts of laws.
    2. Waiver of Jury.  THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE AND RELEASE ALL RIGHTS TO A JURY TRIAL OF ANY CLAIM OR LIABILITY ARISING OUT OF, OR RELATING TO, THESE TERMS OR ANY APPLICABLE ORDER OR INVOICE AND CONSENT TO ANY SUCH CLAIM OR LIABILITY BEING TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EITHER PARTY MAY FILE A COPY OF THESE TERMS WITH ANY COURT AS EVIDENCE OF THE PRECEDING WAIVER.
    3. Arbitration.  Except as expressly stated to the contrary in these Terms or an applicable Order or Invoice, all claims, actions, suits, proceedings, demands, and disputes (collectively, “Claims”) arising out of, or relating to, these Terms or an applicable Order or Invoice shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.  Any Claim (except for a Claim challenging the validity and enforceability of the class action waiver) challenging the validity or enforceability of these Terms or this arbitration provision shall be decided by the arbitrator.  Even if both parties have opted to litigate a Claim in court, either party may elect arbitration with respect to any Claim made by a third party or any new Claims later asserted in that lawsuit.  The arbitration hearing shall be conducted live, in-person, in Jefferson County, Alabama unless both parties agree to either a virtual hearing or desk arbitration.  The arbitration will be conducted and determined by one (1) arbitrator mutually selected by the parties from a panel of arbitrators provided by the American Arbitration Association.  The provisions of this section to arbitrate and any judgment rendered upon the award by the arbitrator may be enforced in any court having jurisdiction thereof.  A party shall give notice to the other party of its intent to cause any Claim to be settled by arbitration, together with a description of the facts and circumstances giving rise to the Claim in sufficient detail as to permit the other party to investigate the particulars of the Claim.  If the party seeking arbitration elects to arbitrate, a copy of the notice to arbitrate shall also be furnished to the regional office of the American Arbitration Association in or nearest to Jefferson County, Alabama.  Within twenty (20) business days after receipt of a notice of arbitration, the other party shall send a notice to the party seeking arbitration containing a detailed response to the Claim giving its position, specifying any counterclaim, and any remedies sought.  If the other party gives notice of a counterclaim, the party seeking arbitration shall have ten (10) days following its receipt of such notice to provide a written detailed response to the counterclaim setting forth its position.  Unless otherwise agreed by the parties, discovery shall be available in connection with any arbitration and shall be conducted in accordance with the rules of discovery set forth in the U.S.  Federal Rules of Civil Procedure in effect at such time.  Any refusal to allow discovery shall be specifically enforceable in court by the aggrieved party, and the arbitration proceeding shall be stayed pending resolution of the court proceeding.  Notwithstanding any rule of the American Arbitration Association to the contrary, any arbitrator’s award shall specify the arbitrator’s result, conclusion, and award and shall state in detail the grounds upon which the award is based.  Arbitration must be on an individual basis. Neither party may join or consolidate Claims in arbitration by or against other dealers or litigate in court or arbitrate any Claims as a representative or member of a class or in a private attorney general capacity. The arbitrator may not award class, representative or public injunctive relief. If a court decides that applicable Law precludes enforcement of this paragraph’s limitations as to a particular Claim, then, after all appeals from that decision have been exhausted, that Claim (and only that Claim) must be severed from the arbitration and may be brought in court. Only a court, and not an arbitrator, shall determine the validity, scope and effect of this class action waiver.

11. Miscellaneous.

    1. Notices.  All notices required or permitted under these Terms must be in writing and will be deemed validly given and delivered when (i) personally delivered or (ii) deposited with a nationally recognized overnight courier for next day delivery (as evidenced by receipt) or deposited in the United States Mail, postage prepaid, using registered or certified mail with return receipt requested, and, in both cases, properly addressed to the respective party at the addresses set forth on the face of the applicable Order or Invoice or to such other addresses for either party as that party may designate by written notice.
    2. Assignment.  Customer’s rights, interests, or obligations under these Terms or any applicable Order or Invoice may not be assigned, transferred, or delegated by Customer without the prior written consent of Air Engineers.  Any purported assignment or delegation in violation of this section is null and void.  No assignment or delegation relieves Customer of any of its obligations under these Terms or an applicable Order or Invoice.
    3. Captions.  The captions or headings in these Terms are for convenience and general reference only and shall not be construed to describe, define, or limit the scope or intent of the provisions of these Terms.
    4. Waiver.  Either party’s waiver of any requirement in, or a breach, violation or default of, any provision of these Terms will not operate as, or be construed to be, a waiver of such requirement or any subsequent breach, violation, or default of these Terms.  Any waiver of any provision of these Terms must be in writing and signed by the party against which the waiver is sought.
    5. Severability.  If any court or competent authority finds that any provision of these Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Terms shall not be affected.