Purchasing Terms and Conditions

See also Terms and Conditions of Sale

GENERAL: These terms and conditions apply to purchase orders (“Orders”) issued between Fabco-Air, Inc. (“Buyer”) and the supplier (“Seller”). By acceptance of an Order and/or performance hereunder, Seller agrees to comply fully with the terms and conditions as set forth in these general purchasing terms and conditions, as well as any supplemental terms contained in the Order and any document referenced therein. Acceptance of this Order is expressly limited to these terms and conditions and any supplemental conditions on or referenced in the Order. Buyer expressly rejects all other terms and conditions, whether contained in Seller’s proposal, order acceptance or other communication and none of such Seller’s terms shall be of any force or effect. Acceptance by Buyer of the products and services furnished hereunder including the design, materials, workmanship and components incorporated therein (to the extent applicable) (collectively, “Products”) delivered under this Order shall not constitute acceptance of Seller’s terms and conditions. Seller may not ship under reservation. The terms and conditions hereof are intended as a final, complete and exclusive statement of the agreement between the parties and no change in modification of or revision of this Order shall be valid unless in writing and signed by Buyer. The Order and all documents incorporated by reference constitute the entire agreement of the parties as to the subject matter hereof. In the event of any inconsistency among the foregoing, the inconsistency shall be resolved by giving precedence in the following order: (i) the face of this Order, (ii) the specifications, (iii) the drawings, (iv) these terms and conditions, and (v) the other documents incorporated by reference.

ACCEPTANCE OF ORDER: An Order is deemed to have been accepted and is binding on both parties if Seller: (a) signs and returns it to Buyer; (b) begins performance; or (c) acknowledges it by e-mail, facsimile, or any other commercially reasonable means.

DELIVERY: (a) TIME IS OF THE ESSENCE IN THIS ORDER. If delivery in accordance with this Order is not made within the time specified herein, Buyer may, in addition to any other remedy provided herein or by law, cancel this Order or such part of it as has not been completed and delivered by Seller in accordance with the clause entitled “Default.” If Seller encounters or anticipates difficulty in meeting the delivery schedule, Seller shall immediately notify Buyer, in writing, of the details and plan for corrective action. Such data shall be informational only and shall not be construed as a waiver by Buyer or any delivery schedule or of any such rights or remedies. (b) Seller will deliver any Products to Buyer DDP Destination (Incoterms 2010), where the destination is Buyer’s business address specified in the applicable Order, provided that all rights, title, interests, and all risks of loss and damage to any Product will pass to Buyer upon Buyer’s acceptance of such Product.

PACKAGING: All items shall be packed by Seller in suitable containers for protection during shipment and storage. When items are specially packed to avoid contamination, a notice to this effect must be prominently placed on the bill of lading, packing sheet and packages.

PRICES: Buyer will pay Seller for Products specified in a specific Order the amount specified in such Order. Prices and discounts for the Products are firm unless otherwise specified. Seller is entitled to no other compensation or reimbursement for or in connection with the Products, including boxing, crating and other packaging. Except as expressly provided in an Order, Seller will bear sole responsibility for all expenses incurred in connection with its performance under an Order. Unless otherwise elected by Buyer, the price for any Products will be in US Dollars. Buyer assumes responsibility for all taxes imposed upon or in connection with this Order.

INVOICING AND PAYMENT TERMS: Seller will issue invoices for Buyer upon shipment of Product, or upon such other time as the parties may agree in an Order. Unless otherwise agreed in a Order or Addendum, Services will be invoiced on a monthly basis in arrears. Buyer will remit all properly payable amounts on any invoice within 45 days following its receipt of such invoice, provided that such amounts are due and owing under the terms of the applicable Order. Each invoice will be in form and content reasonably acceptable to Buyer and will contain reasonable detail describing the basis for the invoiced amounts, including a reference to the applicable Order, and a description of all Products delivered, Services performed, milestones met, agreed-upon reimbursable expenses, and the like. Seller will furnish such receipts, documents and other supporting materials as Buyer may reasonably request to verify the contents and accuracy of any invoice. Payments may be made according to Buyer’s then-current payment policies, which may include electronic payment. Payment of an invoice without asserting a dispute is not a waiver of any claim or right. Buyer is not required to pay invoices received more than 180 days after acceptance of the Product or Services covered by the invoice.

CHANGES: Buyer shall have the right by written order to suspend work, or to make changes from time to time in the services to be rendered or the materials to be furnished by Seller hereunder, including with regard to quantities, drawings, designs, specifications, place of delivery, delivery schedules and methods of shipment and packaging. If such suspension or change causes an increase or decrease in the cost of performance of this Order or in the time required for its performance, an equitable adjustment shall be negotiated promptly and the Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this clause must be asserted in writing within twenty (20) days from the date of receipt by Seller of notification of the change or suspension.

INSPECTION AND ACCEPTANCE: (a) Buyer shall have the right to inspect the Products to the extent practicable, at all places and times including during the manufacture of fabrication at Seller’s facilities or elsewhere. Seller and Seller’s suppliers will furnish, without additional charge, all reasonable facilities and assistance for the safety and convenience of Buyer performing their duties on Seller and Seller’s suppliers’ premises. Buyer may reject all Products that are found to be defective and rejected Products may be returned to Seller at Seller’s expense. At Buyer’s request, Seller shall repair or replace defective Products at Seller’s expense. Failure to inspect Products, failure to discover defects in Products, or payment for Products shall not constitute acceptance, forfeiture of warranty rights, or limitation of any of Buyer’s rights provided by law. Final inspection and acceptance is at Buyer’s facility. (b) Seller shall provide and maintain an inspection/quality control system acceptable to Buyer covering the Products and shall tender to Buyer for acceptance only Products that have been inspected in accordance with the inspection system and have been found by Seller to be in conformity with Order requirements.

REPRESENTATIONS AND WARRANTIES: Seller represents, warrants and covenants to Buyer the following: (a) all products and services furnished hereunder including the design, materials, workmanship and components incorporated therein (to the extent applicable) (“Products”) will be free from defects in design, materials and workmanship, as well as fit and sufficient for the purpose intended; (b) the Products will conform, beginning at the time of delivery and continuing for a period of 18 months following shipment (Performance Warranty Period), to the applicable specifications and documentation provided by Seller to Buyer, any requirements set forth in an Order, and in published specifications and documentation (Performance Warranty); (c) the Products will be provided to Buyer free of any liens, pledges, claims, mortgages, encumbrances, and other rights and interests of any party, except any non-waivable lien of Seller in respect of any unpaid portion of the payments due to Seller; (d) any services will be performed in a timely, professional, and workmanlike manner in accordance with the level of professional care customarily observed by highly skilled professionals rendering similar services; (e) the Products (and Buyer’s exercise of its rights an Order with respect to the Products) will not infringe upon, violate or misappropriate any trademarks, trade secrets, copyrights, patents and any other intellectual property or proprietary rights in any country (collectively, “Proprietary Rights”) of any third party; (f) all Seller personnel are authorized to lawfully perform any Services pursuant to applicable immigration and work status laws and regulations; (g) the Products will not contain any copy protection, automatic shut-down, lockout, “time bomb,” or similar mechanisms that could interfere with Buyer’s exercise of its business or its rights under an Order; and (h) Seller has used and will continue to use commercially reasonable efforts to ensure that the Products will not include or contain any viruses, “Trojan horses,” or other harmful code; and (i) the Products and all components and parts thereof are new (not refurbished or reconditioned) and will conform with applicable regulations. The provisions of shall survive any final acceptance of a Product.

REJECTION AND OTHER REMEDIES: If any Product is defective or damaged, or does not otherwise strictly comply with all of the requirements of, and Seller’s representations, warranties, and obligations under, this Agreement and the applicable Order, or if such Product is subject to a government or manufacturer’s recall, then regardless of whether Buyer has accepted such Products, Buyer may at its sole discretion exercise one or more of the following rights: (a) retain such Products for correction by Seller or others, in which event Seller will promptly pay to Buyer all costs and expenses reasonably incurred by Buyer in connection with such correction; (b) retain such Products as delivered with an equitable reduction in price to account for the diminished value of such Products; (c) return such Products for timely cure by Seller at Seller’s sole cost and expense, including all shipping costs associated with delivery of the Products to Buyer and return of the Products to Seller, and Seller will comply with Buyer’s instruction, if any, on how to cure such Products; (d) return such Products to Seller for full credit or refund;(e) purchase from others in substitution for such Products, in which event Seller will promptly pay to Buyer the costs of the substitute in excess of the price of such Products; and/or (f) terminate the Order with respect to such Products at no charge and without liability (Seller will continue to perform such Order to the extent not terminated by Buyer), in which event Buyer may request and Seller will upon such request promptly deliver to Buyer any completed or partially completed Products (and all related materials and information) and transfer to Buyer all rights, title, and interests in such Products (and all related materials and information) as directed by Buyer (the price for such Products will be equitably reduced to account for the diminished value of such Products). Buyer will be entitled to recover from Seller all costs and expenses reasonably incurred by Buyer in connection with any of the foregoing (including all costs to return such Products to Seller). Buyer may recover any amount owed by Seller to Buyer through, at Buyer’s election, credit, setoff, invoice, refund, cash payment, or otherwise. In addition to the above, and without limiting Seller’s defense and indemnification obligations, if any of the Products is held, or Buyer determines that such Products could be held, to constitute an infringement or misappropriation of any Proprietary Right, or the use of such Products is enjoined or is threatened to be enjoined, Seller will promptly notify Buyer and, at no cost to Buyer and at Buyer’s election, either (a) procure for Buyer the right to continue to use such Products as contemplated by an Order, or (b) replace or modify such Products such that the replacement or modified Products is non-infringing and non-misappropriating, provided that such replacement or modification must provide equivalent performance and meet Seller’s warranties under an Order. If Seller is unable to successfully accomplish either (a) or (b) above after using its best efforts to accomplish each of them, Seller will refund to Buyer all amounts paid by Buyer under an Order in connection with the affected Products (and any other Products intended to be used in conjunction with the affected Products).

DEFENSE AND INDEMNIFICATION: (a) Defense Against Claims. Seller will defend Buyer, its Affiliates, the officers, directors, employees, successors, assigns, and agents of Buyer and its Affiliates, and, if applicable, Owner (collectively, “Indemnified Parties”) against any third party allegation or claim that directly or indirectly arises out of or relates to: (1) Seller’s breach of any of its warranties, representations, and obligations in an Order; (2) any act or omission by Seller or Seller’s personnel, contractors or subcontractor including the negligent acts or omissions, willful misconduct, or strict liability thereof; (3) any infringement or misappropriation of any Proprietary Right (as described in the INTELLECTUAL PROPERTY section below) resulting from any Products provided by or on behalf of Seller or resulting from Buyer’s exercise of its rights under an Order with respect to such Products; or (4)any personal or bodily injury (including death) or damage to property caused by any of the Products or by any act or omission of Seller or its Personnel in connection with the provision of the Services (individually, a “Claim”, and collectively, the “Claims”); (b) Indemnification. Seller will indemnify and hold harmless each Indemnified Party against any damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorneys’ fees and legal expenses) incurred by that Indemnified Party relating to any Claim; (c) Process. Buyer will give Seller reasonable notice of each Claim for which it wants indemnity, provided that failure to provide such notice will not release Seller from any obligations hereunder except to the extent that Seller is materially prejudiced by such failure. Buyer will also give Seller its reasonable cooperation in the defense of each Claim, at Seller’s expense. Seller will use counsel reasonably satisfactory to Buyer to defend each Claim. An Indemnified Party may participate in the defense at its own expense. If at any time Buyer reasonably determines that any Claim might adversely affect any Indemnified Party, then, without limiting Seller’s indemnification obligations, Buyer may take control of the defense of the Claim, and in such event Buyer and its counsel will proceed diligently and in good faith with that defense. Seller will not settle any Claim without the Indemnified Parties’ prior written consent, which may not be unreasonably withheld. Seller will see that any settlement it makes of any Claim is made confidential, except where not permitted by Law. Seller’s duty to defend is independent of its duty to indemnify; (d) Limitation. Seller’s obligations under this provision will not apply to the extent the Products infringe any third party Proprietary Rights solely as a result of modifications made by Buyer without Seller’s authorization, or (b) Buyer’s use of the Products in a manner not reasonably anticipated by Seller, provided that such infringement would not have occurred absent such modification or use.

TERMINATION FOR CONVENIENCE: (a) Orders for Products. Buyer may terminate or modify any Order for any Product at least 2 business days prior to shipment at no charge and without liability. Buyer may terminate or modify the Order for any Product after shipment and prior to Buyer’s acceptance of such Product at no charge and without liability, provided that Buyer will pay the shipping expenses for returning such Product to Seller’s shipping location. If Buyer terminates or modifies any Order for products customized for Buyer (“Custom Products”), Buyer shall only be obligated to pay: (1) for any items which are complete Custom Products which otherwise cannot be readily resold by Seller at the time Buyer provides notice of termination and which Seller is not able to use to fulfill any other order then open with Seller; and (2) if incomplete, a prorated amount of the purchase price of each Custom Product to the percentage completed by Seller up to the point of termination. Such amounts in parts (1) and (2) together shall not exceed the total amounts due pursuant to the corresponding Order. Seller shall provide all documents reasonably requested by Buyer to substantiate amounts claimed by Seller hereunder. (b) Orders for Services. Buyer may terminate or modify any Order for Services or any portion thereof, with or without cause, by giving at least ten (10) days’ prior written notice to Seller. Upon any such termination, Buyer is only liable to pay for Services performed and liabilities incurred prior to expiration or termination; provided, that if the fee set forth in the Order is a fixed amount, Buyer will pay the fee to the extent the Order is complete. Upon modification of an Order, if such modification results in an increase or decrease in the parties’ best estimate of the time or expense required to perform the remaining Services and Seller provides Buyer with prompt advance notice of such change in time or expense, Buyer and Seller will equitably adjust the schedules and/or the compensation payable for the performance of such Services to reflect the increase or decrease.

TERMINATION FOR CAUSE: Buyer may cancel any or all Orders upon Seller’s material breach under any Order executed or issued by any Buyer and, to the extent the applicable breach is curable, Seller’s failure to take the actions necessary in Buyer’s sole discretion to cure such breach within thirty (30) days of Buyer providing written notice to Seller specifying the material breach in reasonable detail. In the event of termination for cause, Buyer will remit amounts due and owing under any Order, except that, for any order under which a breach has occurred, Purchase will remit the prorated amount of the purchase price of each such item to the percentage completed by Seller up to the point of termination for those items required to be delivered and retained by Buyer.

PROPRIETARY INFORMATION/INTELLECTUAL PROPERTY: (a) Buyer Information. Any information furnished to Seller by Buyer, originally or in writing, and whether or not marked with a restrictive legend, shall be held in strict confidence by Seller and not disclosed by Seller, protected in the same fashion as Seller would protect its own proprietary information and used only to the extent necessary to perform this Order. Disclosure of any such information by Buyer to Seller at a location closest to Buyer’s principle place of business does not convey any rights of ownership or license for use other than expressly permitted by this Order. (b) Work Product If Seller delivers or is required to deliver, or otherwise produces, creates, or develops, any work product in connection with the Deliverables, including concepts, data, designs, developments, documentation, drawings, hardware, improvements, information, inventions, processes, software, techniques, technology, tools, or any other intellectual property (whether produced, created or developed by Seller or any of its personnel, either alone or with others, and whether completed or in-progress) (collectively, “Work Product”), then Seller will promptly disclose to Buyer all such Work Product, and Buyer owns, or upon assignment by the creator will own, all right, title, and interest (including all Proprietary Rights) in and to such Work Product. At any time upon request from Buyer, and upon termination or expiration of this Agreement, Seller will deliver to Buyer all Work Product in tangible or electronic form; (c) Work for Hire; Assignment of Work Product. Work Product has been specially ordered and commissioned by Buyer, and such Work Product is a “work made for hire” for copyright purposes, with all copyrights in the Work Product owned by Buyer. To the extent that the Work Product does not qualify as a work made for hire under applicable Law, Seller hereby irrevocably assigns to Buyer (or to such of its Affiliates as it may designate), its successors and assigns, all right, title and interest in and to the Work Product, including all Proprietary Rights embodied or incorporated in the Work Product or developed in the course of Seller’s production, creation or development of the Work Product. The foregoing assignment includes a license under any current and future patents owned or licensable by Seller to the extent necessary to use the Work Product or combine the Work Product or any derivative works or modifications thereof with any product, service, offering, software or intellectual property of Buyer. Seller will execute all applications, assignments or other documents of any kind and take all other legally necessary steps under the Law of any applicable jurisdiction or any international regime required for Buyer to apply for, obtain, protect, perfect or enforce Buyer’s rights, title and interest in the Work Product. Seller will enter into agreements with its Personnel or any other party as necessary to establish Buyer’s sole ownership in Work Product, and upon Buyer’s request, Seller will provide Buyer with copies of such agreements. Seller appoints Buyer as its attorney-in-fact to execute assignments of, and register all rights to, the Work Product and the Proprietary Rights in Work Product. This appointment is coupled with an interest.

PUBLICITY, PROMOTION OR ADVERTISING: Seller shall not, without prior written consent of Buyer, issue any news release, publicity or promotion material regarding this Order (including denial or confirmation thereof).

BUYER-FURNISHED PROPERTY: All drawings, specifications, technical data, computer software, materials and accountable property (i.e., tooling, test equipment, plant equipment, etc.) furnished or paid for by Buyer shall be: i) the property of Buyer, ii) subject to removal at any time without additional cost upon demand by Buyer, iii) used only in filling orders from Buyer, and iv) kept separate from other drawings, specifications, technical data, computer software, and materials and shall be identified as the property of Buyer. Seller assumes all risk and liability for loss or damage to accountable property and data except for normal wear and tear. Seller shall supply to Buyer detailed statements of inventory upon request of Buyer within thirty (30) days of termination or cancellation of this Order. Seller shall return all drawings, specifications, technical data, and computer software to Buyer upon request. Any such property of Buyer that is retained by Seller shall remain subject to the applicable provisions of this Order.

QUALITY ASSURANCE SYSTEM: Unless otherwise specified in the Order, the Provisions of ISO 9000 apply to all orders. For inspection and acceptance, see provisions of “INSPECTION AND ACCEPTANCE” above.

COMPLIANCE WITH LAWS; BUSINESS PARTNER CODE OF CONDUCT AND OTHER POLICIES: (a) Compliance with Law. Each of Seller, its Personnel and all Products will comply with all applicable laws, ordinances, regulations, rules, orders, and other requirements (including requirements for licenses, permits, certifications and approvals) of governmental authorities having jurisdiction (“Laws”). In addition, Seller will (1) obtain and maintain all required licenses, permits and other authorizations relating to its performance under any Order, (2) file all reports relating to its performance under an Order required by Law (including tax returns), (3) pay all filing fees and taxes applicable to Seller’s business as the same become due, and (4) pay all amounts required under any workers’ compensation acts, disability benefit acts, unemployment insurance acts, and any other employee benefit acts when due. Seller understands that some of the software, technology or related information that Seller and its Personnel may have access to may be subject to export control laws and regulations (the “Export Controlled Materials”). Seller will not, without prior written approval from Buyer, allow any of its Personnel to have access to or use of any Export Controlled Materials if such access or use would require an export license; (b) Supplier Code of Conduct. In the performance of the Services and delivery of the Products, Seller shall abide by Fabco’s Business Partner Code of Conduct as updated from time to time. Fabco may immediately terminate or suspend performance under an Order if Seller fails to comply with its obligations under this provision.

APPLICABLE LAW: This Order shall be governed by the laws of the state of Florida. During pendency of any dispute arising under this Order, both parties shall proceed diligently with performance hereunder. In addition to the foregoing, Seller shall at all times comply with all applicable Federal, State and Local laws, rules and regulations.

DISPUTES: Any dispute or disagreement arising between Buyer and Seller in connection with an interpretation of any provision of this Order, or the compliance or noncompliance therewith, or the validity or enforceability thereof, which is not settled to the satisfaction of Buyer and Seller within thirty (30) days of the date either party informs the other in writing that such dispute or disagreement exists, shall be arbitrated in accordance with the Commercial Arbitration Rules, in effect on the date that such notice is given, by the American Arbitration Association in Alachua County, Florida. Any arbitration award shall be final and binding on the parties and judgement may be entered thereon upon the application of either party by any court having jurisdiction. Each party shall bear the costs of preparing and presenting its case and the cost of the arbitration, including the fees and expenses of the arbitrator, or as the award otherwise provides.

WAIVER: A waiver by Buyer of any breach of any term or condition of this Order shall not be deemed a waiver of any subsequent breach of the same or any other term or condition.

SET-OFF: Buyer shall be entitled at all times to set-off any amount owing at any time from Seller to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this Order.

ASSIGNMENT: No part of this Order or any right hereunder may be assigned by Seller and neither manufacture nor performance of Seller may be delegated without Buyer’s consent.

Last Revision Date: 09/10/2024