Terms of Sale
Terms of Sale
By using this Air Power, Inc. website ("Site"), the user ("Buyer") agrees to become bound by the terms and conditions of this agreement ("Agreement"), and this Agreement shall govern and control the Buyer's use of this Website and any and all current or future orders and/or purchases Buyer may make through this Website. If Buyer does not agree to all of the terms and conditions of this Agreement, Buyer will not have any right to use the Website. If these terms and conditions are considered an offer by Air Power, acceptance is expressly conditioned upon Buyer's assent to all of the terms and conditions of this Agreement without modification, to the exclusion of all other terms.
Buyer's receipt of an electronic or other form of order confirmation does not signify acceptance of Buyer's order nor does it constitute confirmation of an offer to sell by Air Power. Air Power reserves the right at any time to accept or decline Buyer's order for any reason. Air Power reserves the right to verify any information Buyer provides prior to accepting an order. Item availability and price of products offered for sale at the Website are subject to change without notice. Air Power reserves the right to limit quantities on items.
While Air Power uses reasonable efforts to include accurate and up-to-date information in its Website, Air Power makes no warranties or representations as to the accuracy of the information. Air Power assumes no liability or responsibility for any errors or omissions in the content of the Website. In the event a product is listed at an incorrect price due to a typographical error or error in pricing information received from a supplier, Air Power shall have the right to refuse or cancel any orders placed for a product listed at the incorrect price. Air Power shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and/or Buyer's account charged. If Buyer's account has already been charged for the purchase and Buyer's order is subsequently cancelled, Air Power shall issue a credit to Buyer's account in the amount of the incorrect price.
Taxes, Shipment, Risk of Loss, and Delivery
Sales tax will be charged on all items pursuant to Buyer's account information with Air Power. Product prices displayed on the Website do not reflect charges for shipping and handling. The shipment date given by Air Power is only an estimated shipment date and is not a representation or guarantee of a particular date of shipment or delivery. Air Power will attempt to ship the Equipment for delivery on or about the times stated, although time shall not be of the essence as to delivery. Unless otherwise agreed in writing by Air Power, delivery of the Equipment shall be F.O.B. Air Power's place of shipment. The Equipment will be shipped under a Bill of Lading, naming Buyer as Consignee. After the Equipment has been delivered to a shipper for transportation to Buyer, Air Power shall transmit the Bill of Lading to Buyer at Buyer's address of record with Air Power. Air Power may, at its option, ship the Equipment in lots from time to time or all at one time. In the absence of written instructions from Buyer, Air Power shall have the absolute discretion as to the shipper and routing of shipments. The cost of shipping and insurance for the Equipment shall be the responsibility of and paid for by Buyer. No loss or damage to the Equipment shall impair any obligation of Buyer hereunder and all such obligations shall continue in full force and effect until discharged. Buyer shall have the responsibility for and expense of preparing and filing claims against carriers for loss or damage to Equipment in transit.
It will be the Buyer's responsibility to supply the following, when applicable: (1) Electrical field wiring; (2) Fire protection modifications (sprinklers); (3) Building modifications; (4) Building structural support capability; (5) Field painting; (6) Air piping; (7) Roof and/or wall penetrations or repair of the same; (8) Roof curbs; (9) Concrete Pads, pits, dikes or curbs; (10) Unloading; (11) Any necessary permits; (12) Freight and taxes; (13) Crane service; (14) Fire watch; (15) UL listed components for applicable equipment; and (16) Approval of Buyer's insurance carrier.
Express Limited Warranty
Air Power warrants to Buyer only, and not to any subsequent transferees (other than the lessee using the Equipment pursuant to an Equipment Lease where Buyer is in the business of purchasing and leasing equipment), that upon shipment, the Equipment materially conforms to the Equipment described in the electronic confirmation. The Equipment is warranted by Air Power according to the standard manufacturer's warranty. All warranty claims must be made in a writing specifying the alleged defect or non-conformity and delivered to Air Power within the specific manufacturer's warranty period or reasonably thereafter. Within a reasonable time after any such timely notification, Air Power will act, at Air Power's sole option, according to the terms of the manufacturer's warranty for the defective product. Buyer agrees to deliver at its own cost and expense any non-conforming or defective Equipment or part(s) to Air Power at Air Power's place of business at High Point, North Carolina. These remedies are Buyer's exclusive remedies for breach of warranty or contract or in tort. Exclusions.
Air Power's warranty does not apply to: (i) damage caused by use of the Equipment for purposes other than those for which it was designed; (ii) damage caused by disasters such as fire, flood or electrical storm; (iii) damage caused by unauthorized attachments, alterations or modifications; (iv) damage occurring during shipment; (v) damage caused by abuse, misuse or neglect by Buyer; (vi) defects in the manufacturing process discovered after the expiration of the express warranty; (vii) damage caused by third parties; (viii) damage caused by unauthorized repairs; (ix) ordinary wear and tear; or (x) damage not covered under the manufacturer's warranty.
DISCLAIMER OF OTHER WARRANTIES
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY DISCLAIMED BY AIR POWER AND EXCLUDED FROM THIS CONTRACT. THIS DISCLAIMER OF WARRANTY SHALL NOT LIMIT BUYER'S RECOURSE AGAINST THE MANUFACTURER OF THE EQUIPMENT UNDER ANY WARRANTY, IF ANY, EXTENDED BY SUCH MANUFACTURER. ANY WARRANTY OF ANY MANUFACTURER SHALL NOT BE DEEMED TO BE THE WARRANTY OF AIR POWER.
Limitation of Remedies
The remedies contained herein are Buyer's only remedies concerning the Equipment or occurrences related thereto. In no case shall Air Power be liable for any special, incidental or consequential damages of any kind which may arise in connection with the use of or inability to use the Equipment and whether such damage is based on a theory of breach of warranty, breach of contract, negligence, strict liability in tort, or any other legal theory. Damages hereunder not recoverable include, but are not limited to, loss of profits, loss of savings or revenue, loss of use of the Equipment, cost of capital, cost of any substitute Equipment, facilities or service, downtime, the claims of third parties, including customers, and injury to property or persons.
No Other Warranties. No agent, representative or employee of Air Power is authorized to change the warranties herein or to give any other warranty, express or implied.
Liability to Third Persons
Buyer agrees to hold harmless and indemnify Air Power for any claim or action by any employee of Buyer or Air Power, any installer of the Equipment, and any other third person arising out of or alleged to arise out of the delivery, installation, startup or use of the Equipment at Buyer's place of business.
Until the purchase price payable has been paid in full, Buyer agrees not to sell, mortgage or otherwise encumber the Equipment without Air Power's written consent. Buyer grants to Air Power a purchase money security interest in the Equipment purchased to secure payment of any unpaid balance of the purchase price of the Equipment. Buyer agrees to sign and deliver, and grants Air Power a limited power of attorney to sign and deliver on Buyer's behalf, such financing statements and other security instruments as Air Power may require to perfect and maintain the security interest herein granted.
Air Power shall have no liability for any non-performance or delay in performance of its obligations caused by force majeure, failure of transportation, or failure of Air Power's suppliers to deliver the Equipment.
Warranty of Title
Air Power warrants that upon delivery of the Equipment to Buyer, good title to the Equipment, free and clear of all liens and encumbrances (except for the purchase money security interest granted to Air Power hereunder) will be transferred to Buyer.
Compliance With Laws
Buyer represents and warrants to Air Power that Buyer is familiar with and understands all federal, state and local laws, rules, regulations, orders, standards, and industry self-governing standards, including but not limited to NFPA-33 (collectively called "Laws"), applicable to the Equipment and the use thereof. Unless otherwise expressly agreed in writing signed by Air Power and Buyer, Air Power shall not be liable to Buyer for, and Buyer agrees to indemnify and defend and hold Air Power harmless from, any liability arising or alleged to arise out of, any failure of the Equipment to conform to any such Laws. Air Power specifically disclaims any representation, warranty or guarantee that Buyer is compliant with any Laws.
Any arbitration for breach of warranty, breach of contract, tort, or other permitted action or remedy must be commenced within twelve (12) months following delivery of the Equipment to Buyer or it shall be forever barred.
If Buyer should default in the payment of any sums due and owing to Air Power, and Air Power engages counsel in respect thereof, Buyer agrees to pay, in addition to the balance then due and owing, reasonable attorney fees and all costs of collection.
The parties agree that any controversy, claim, or dispute arising out of or related to the Equipment pursuant to this Agreement or breach thereof or the use of this Website shall be settled by binding arbitration in accordance with the Commercial Arbitration rules then in existence of the American Arbitration Association, and judgment upon the award rendered may be entered by any court having jurisdiction of the parties. The place of arbitration shall be Guilford County, North Carolina. Expenses for the arbitrators' services, the court reporter fees, and the prevailing party's reasonable attorney fees and other costs of the proceeding shall be borne by the non-prevailing party. However, each party shall be responsible for compensating its own representatives and witnesses. The arbitrator(s) shall determine which party is the prevailing party and in the case of split decision shall take into account, among other factors, the extent of each party's success or failure, the amount involved, and the results ob
Air Power may at any time revise these terms and conditions by updating this posting. The customer is bound by any such revisions and should therefore periodically visit this page to review the then-current terms and conditions to which the customer is bound. The terms and provisions set forth in this Agreement are severable and the invalidity of any one provision or term shall not affect the enforceability of the remaining provisions or terms.
This Agreement may not be revoked or canceled by Buyer. Air Power may, in its sole discretion, permit Buyer to cancel its agreement upon payment of fifteen percent (15%) of the purchase price of the Equipment as a restocking fee and payment of all transportation and related expense of returning any unused Equipment or parts to Air Power.
This Agreement, together with other notices and terms stated on this Website regarding pricing, shipping, charging and other matters, contains the entire agreement and understanding between the customer and Air Power with respect to the matters referred to herein, and supersedes any other written or oral understandings related to these matters and may only be modified as provided in this Agreement or in writing signed by both parties. No other representations, covenants, undertakings, or prior or contemporaneous agreements, oral or written, respecting such matters which are not specifically incorporated herein shall be deemed in any way to exist to bind the customer or Air Power.