General Terms and Conditions of Sale

1. Applicable Terms: Air and Liquid Systems, LLC or ALSI (“Seller”) shall provide only the materials, equipment (collectively, the “Products”), and where applicable, the labor and services described in Seller’s Proposal (“Proposal”) (collectively, the “Services”) and, together with Seller’s manufacture and supply of the Products, (the “Work”) in accordance with, and subject to, the following terms and conditions which are part of this Contract between Seller and Buyer (together with Seller’s Proposal and Buyer’s Purchase Order) the “Contract”.

These terms govern the purchase and sale of equipment, products, services, leased products, and other goods if any referred to in the seller’s proposal. This writing constitutes an offer or counteroffer by Seller to sell its products to the buyer in accordance with these Terms and Conditions of Sale. Any documents received from Buyer which contains terms and/or conditions conflicting shall not become part of the contract.

Unless specifically stated in the Supplier’s Proposal, no other material or equipment of any nature is included in the price stated in the Proposal. Buyer acknowledges it has inspected, examined, and studied all plans, specifications, prints, drawings, and material lists furnished by Seller (the “Specifications”) and that it has approved the same, including, without limitation of the foregoing, Buyer’s Scope of Work in connection therewith. For the purpose hereof, except as otherwise provided in this Proposal, “Buyer’s Scope of Work” shall mean all site preparation, utility connections, etc., required for the installation of the equipment.

2. Term of Proposal. Unless otherwise provided, this Proposal is subject to acceptance by Buyer within thirty (30) days from the Proposal date.

3. Delivery. Unless otherwise provided in the Contract, all shipments of the Goods shall be made by Seller EXWORKS Seller’s facility INCOTERMS 2020. Seller shall procure materials for, fabricate, assemble, pack, mark, and ship Goods strictly in the quantities, by the methods, to the delivery locations and by the delivery dates specified in this Contract or as specified in an applicable Purchase Order. Unless otherwise agreed in writing by Seller, shipping dates are approximate only and Seller shall not be liable for any loss or expense, consequential or otherwise, incurred by buyer if sell fails to meet the specified delivery date.

4. Installation. If installation is a part of the Work contemplated by this Contract, the Goods shall be assembled, erected, and installed under the personal direction of an employee or agent of Seller. Buyer shall furnish sufficient electricity, water, compressed air, light, heat, sanitary facilities, and fire protection as well as adequate all-weather storage space, ingress and egress to the job site and other items that may be listed under Buyer’s responsibilities. The site is to be prepared for installation personnel to work in a normal fashion with no extra equipment or procedures required due to construction or production interferences. Unless otherwise stated, installation shall be performed only during Seller’s normal working hours and any overtime work required for any reason shall be requested by and paid for by Buyer.

5. Site Access. Unless otherwise provided, or waived in writing by Seller, the following will be available to Seller throughout the duration of the Work at no cost to Seller: A) A safety buffer zone shall be established nominally fifty (50) feet all around the base of Seller’s work area, which will be maintained free and clear of all work, contractors, equipment and personnel; B) An adequate construction staging, lay down and material storage area for Seller’s exclusive use shall be available adjacent to the safety buffer area. This area and the safety buffer shall be graded, leveled, well drained, and even with the top of the foundation and be suitable for delivery vehicles and Seller’s equipment in all weather conditions; C) All weather access roads shall be made available and maintained by Buyer from a main highway and from the railroad sidings (if applicable) to Seller’s area and the location of construction; and Seller’s rail siding, (if applicable), shall be available to Seller within 300 feet, by the normal routing, of Seller’s area.

6. Licenses, Permits. All building, erection or other licenses or permits necessary or related to the work, shall be secured, and paid for by the Buyer.

7. Changes. Neither party shall implement any changes in Work described in the seller’s documentation without a mutually agreed upon change order. Any change in scope, delivery schedule, site conditions, any Force Majeure Event, any law, regulation, code, or requirement which requires any change shall entitle Seller to equitable adjustment in price and time.

8. Delays and Suspension. All shipping dates are based upon prompt receipt by Seller of all necessary information and may be subject to change by reason of conditions beyond Seller’s reasonable control If a delay is caused by Buyer or by any other cause beyond Seller’s reasonable control. The portion of the Contract price already performed by Seller shall become due and payable within 30 days of shipment, or if not shipped, 30 days from the date the equipment is ready for shipment. If Buyer requires Seller to delay or suspend the Work under this Contract, and to the extent Seller incurs costs as a result of such delay, Seller shall be entitled to full reimbursement for all reasonable and documented costs actually incurred by Seller as a direct result of any delay and/or suspension of the Work requested by Buyer. If the suspension exceeds 90 days, Seller shall also have the right to cancel the unfinished portion of the Contract without liability to Buyer of any kind and Seller will be paid according to the terms of this Contract.

9. Safety Devices. Seller will supply such safety devices or fire protection equipment as is specified in the Proposal. If Buyer desires or requires through local, state, or insurance underwriter’s specifications or regulations, other additional safety devices or equipment, Seller may elect to furnish same at Buyer’s cost.

10. Warranty. Seller warrants to Buyer that the (a) work shall materially conform to the description in the Seller’s documentation and shall be free from defects in material and workmanship and (b) the Services shall be performed in a timely and workmanlike manner. The Seller warrants the Work, or any components thereof, for a period of 18 months from shipment or 12 months from installation, whichever occurs first (the “Warranty Period”). If Buyer gives Seller prompt written notice of a breach of this warranty within the Warranty Period, Seller shall, at its sole option and as the Buyer’s sole and exclusive remedy, repair or replace the subject parts. Seller shall have no liability for labor or other costs incurred by the buyer for removing, repairing, installing, servicing, shipping or handling Products. If Seller determines any claimed breach is not covered by this warranty, Buyer shall pay Seller it’s customary charges for any repair or replacement made by Seller. Seller’s warranty is conditioned on Buyer (a) installed, operating and maintained in accordance with Seller’s instructions, (b) not making any unauthorized repairs or modifications, (c) not being in default of any payment obligation to the Seller, and (d) Buyer has only used Seller’s OEM parts during the operation of the equipment. Seller’s warranty does not cover damage from chemical action, abrasive material, misuse, accident, neglect, misuse, or exposure to conditions beyond the design conditions specified by the seller. THE WARRANTIES SET FORTH IN SECTION 11 ARE THE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITATION OF LIABILITY PROVISION BELOW. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.

11. Intellectual Property Warranty. Without limiting any other of Seller’s obligations set forth hereunder, Seller shall indemnify, defend, and hold Buyer harmless, at Seller’s expense, against any suit or proceeding brought against Buyer based on any claim that the Work (Including without limitation the Services and Goods provided hereunder)infringes, misappropriates, or otherwise violates any third party intellectual property rights, including trademarks, trade secrets, patents, or copyrights, and pay losses, damages, or other liabilities (including any court imposed damages and costs awarded against Buyer), provided: A) Seller is promptly notified by Buyer in writing of such claim (provided, however, that the failure of the Buyer to so notify Seller shall not relieve the Seller from any liability that it may have as set forth in this Article, except to the extent such failure actually materially prejudices the Seller); and, B) Seller is given commercially reasonable assistance by Buyer to conduct such defense. In order to avoid such claims and/or minimize potential liability, Seller shall have the right and option at any time to: A) procure for the Buyer the right to use the equipment; or B) modify the equipment so that it no longer infringes; or C) replace the equipment with non-infringing equipment.

12. Performance Guarantee. Seller’s sole guarantees are those contained in its Proposal to Buyer and this Contract. Seller’s guarantees contained within the Proposal are contingent upon the material correctness and accuracy of the information provided by Buyer and are based upon the operating conditions specified in Seller’s Proposal. These guarantees will be deemed satisfied by successful completion of performance tests in accordance with applicable standard procedures as specified in the Proposal and in effect on the date of the Proposal. Performance tests shall be conducted by the Buyer, (unless otherwise specified in Seller’s Proposal), and witnessed by Seller, at its option, within ninety (90) days of initial operation of the Goods. If the tests are not conducted within ninety (90) days of the initial operation or within six (6) months of shipment, whichever is earlier, and through no fault of Seller, the Goods shall be deemed to have satisfied Seller’s guarantees. Seller makes no warranty whatsoever as to the inclusion of the equipment supplied by Seller into Buyer’s manufacturing process. Seller’s warranty being limited solely to the performance of the Goods in accordance with the applicable provisions in Seller’s Proposal and this Contract.

13. Inspection. The Goods are subject to Buyer’s inspection and approval or rejection notwithstanding Buyer’s prior receipt of or payment for the Goods. Buyer shall have a reasonable period of time, not to be less than ninety (90) days following delivery of the Goods to the delivery location specified in the Purchase Order (“Inspection Period”), to inspect all Goods received under this Contract and to inform Seller, in writing, of Buyer’s rejection of any nonconforming Goods. If Buyer rejects any other nonconforming Goods, Buyer may elect to (a) require Seller, at Seller’s sole cost, to repair or replace the rejected Goods, (b) purchase similar goods from another source, (c) produce similar goods itself, (d) repair the Goods itself or have a third party repair the Goods, or (e) retain the rejected Goods; in each case without limiting the exercise by Buyer of any other rights available to Buyer under this Contract or pursuant to applicable law. All returns of nonconforming Goods to Seller are at Seller’s sole risk and expense. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by Buyer; provided, however, that Buyer’s acceptance of any Goods will not be deemed to be a waiver or limitation of Seller’s obligations pursuant to this Contract (or any breach thereof), including those obligations with respect to Seller’s warranties and Seller’s duty to indemnify Buyer.

14. Cancellations. Except to the extent Buyer cancels this Contract as a result of Seller’s breach of this Contract, if Buyer cancels for any reason at any time after Seller has received a Purchase Order (or other authorization) for any Goods, or Services or any combination thereof, Buyer shall pay to Seller within thirty (30) days of such cancellation for Seller costs plus a reasonable profit. If Buyer materially breaches any obligation, then Seller may cancel the unfinished portion of the Contract without liability of any kind to Buyer.

15. Credit and Payment. Buyer shall pay Seller the full purchase price as set forth in the Seller’s Documentation. Unless otherwise documented, freight, storage, insurance, all taxes, levies, tariffs, permits or license fees, or other governmental charges relating to Work shall be paid by the Buyer. Payments not in accordance with this Article 15 shall be subject to a monthly interest charge at the rate of 2% per month or the maximum amount allowed by law, whichever is less, due, and payable until the payment is received. If any payment due Seller is more than 30 days past due, then if such payment has not been remitted by Buyer to Seller within five (5) business days following Seller’s written notice to Buyer of such deficiency, (a) Buyer shall also pay all collection costs actually incurred by Seller on any delinquent amounts including, but not limited to, court costs and reasonable attorney fees, and (b) Seller will assess Buyer’s financial condition and Seller shall have the right to (i) reasonably limit the amount of credit that Seller may extend to Buyer for the purpose of purchasing Goods hereunder, and, if applicable, delay manufacture or shipment of Buyer’s orders based upon those limitations; (ii) require full or partial payment in advance; (iii) ship goods to Buyer C.O.D., require payment by irrevocable confirmed letter of credit, or require payment to be secured by letters of credit; (iv) require written guarantees of payment satisfactory to Seller; or (v) cancel or refuse to accept or fill any order from Buyer then outstanding or thereafter placed, all on terms satisfactory to Seller, in its sole and absolute discretion.

15.1. Default in Payment. A) If any payment due Seller is more than 30 days past due, then if such payment has not been remitted by Buyer to Seller within five (5) business days following Seller’s written notice to Buyer of such deficiency, Seller shall have the right at its sole option to accelerate the payment of all outstanding amounts (excluding amounts previously retained pursuant to the Contract), by notifying Buyer in writing that all outstanding amounts (excluding amounts previously retained pursuant to the Contract) are immediately due and presenting Buyer with an invoice. Seller shall also have the right in such event to discontinue all Work without incurring any liability to Buyer for such action; provided, however, that Seller shall promptly resume performance hereunder upon the date Buyer pays Seller all undisputed portions of amounts owed to Seller hereunder as set forth in Seller’s written notice to Buyer of same; B) If the total aggregate amount of delinquent payments (excluding amounts previously retained pursuant to the Contract) exceeds 25% of the total Contract price, Buyer shall provide, at Seller’s request, additional collateral, including, but not limited to, irrevocable letters of credit, sufficient to secure payment of all Contract amounts; C) The foregoing remedies of Seller are in addition to all other remedies Seller may have at law or in equity, including, but not limited to, the right to obtain liens on Buyer’s assets through legal or equitable proceedings.

15.2. Security Agreements. Until Buyer has paid the full amount due and owing for any equipment or materials purchased hereunder, Buyer shall be prohibited from transferring such equipment or materials to any creditor of Buyer other than Seller, unless Seller provides its prior written consent to such transfer, such consent not to be unreasonably withheld. If Buyer becomes insolvent, files for Bankruptcy, or goes into receivership or liquidation, Buyer agrees to use its commercially reasonable efforts and to provide all assistance requested by Seller in order to secure Seller’s position as a preferred creditor with respect to all amounts due to Seller.

15.3. Payment of Retained Amounts. A) If this Contract permits Buyer to withhold final payment, and acceptance is not based upon performance tests, such payments shall be due and payable within thirty (30) days after the Goods are ready for operation; B) If such deferred payment is contingent upon tests and such tests are delayed through no fault of Seller for more than thirty (30) days after the equipment is first ready for operation, final payment shall be due and payable upon expiration of the thirty (30) day period; C) If a retention value is required and agreed, it shall accrue interest at the rate of 2% per month on the outstanding balance until exchanged for a letter of credit or paid to Seller. Seller retains the right to provide Buyer with a letter of credit in lieu of retention at any time during the performance of the contract.

16. Proprietary & Confidential Materials. From time to time, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, goods and services, confidential information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information. Such information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information does not include information that at the time of disclosure, and as established by documentary evidence (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Article by the Receiving Party or any of its agents; (b)is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall, for three (3) years following its from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Contract; and (c) not disclose any such Confidential Information to any Person, except to the Receiving Party’s agents and representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Contract. For the avoidance of doubt, except as otherwise provided herein, all information supplied by Seller as to design, manufacture, erection, operation, and maintenance of the equipment, including all drawings, patterns, specifications and information in Seller’s Proposal or Contract, shall be the proprietary and confidential property of Seller and shall be returned to Seller at its request. Except as otherwise provided herein, Buyer shall have no rights in Seller’s proprietary and confidential property and shall not disclose such to others or allow others to use such property, except as required for the Buyer to obtain service, maintenance, and installation for the equipment purchased from the Seller. Specifically, Buyer agrees that no drawings, specifications, or information included in Seller’s Proposal or Contract shall be used by Buyer for competitive bidding or similar purposes without Seller’s consent and Buyer shall not reproduce or build assemblies or process systems per Seller’s design drawings without explicit approval of Seller.

The term “Joint Intellectual Property” means all proprietary and intellectual property rights of any kind in any jurisdiction throughout the world including (i) copyrights, copyrightable works, and registrations and applications for registration thereof; (ii) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (iii) inventions (whether or not patentable), processes, methods, trade secrets, know-how, and other confidential information; and (iv) rights in software, data and databases, however, the term “Joint Intellectual Property” in this agreement is subject to the following condition:

This clause shall survive the termination of this Contract and be in effect as long as Buyer has possession of any of Seller’s proprietary or confidential information.

17. Hazardous Materials. If the Buyer’s facilities contain hazardous materials, including asbestos bearing materials and any such materials are encountered, Seller shall have no obligation to remove or remediate them in the absence of a separate agreement which includes separate consideration to Seller for such work. If Seller or any of its subcontractors is required to perform work within or immediately adjacent to any facilities that are determined to contain hazardous material and/or asbestos, and the said work must be interrupted to allow for the remediation or removal of such materials by others, if and to the extent that such interruption results in a change in the cost of Seller’s performance hereunder, the parties shall in good faith negotiate an equitable pricing adjustment (up or down). Buyer shall fully defend, hold harmless and indemnify Seller and its agents from and against any claim arising out of exposure to such hazardous and/or asbestos bearing materials.

18. Health and Safety. Seller shall not be responsible for health or safety programs, or precautions related to Buyer’s activities or operations, Buyer’s other contractors, the work of any other person or entity, or Buyer’s site conditions. Seller shall not be responsible for inspecting, observing, reporting, or correcting health and safety conditions or deficiencies of Buyer or others at Buyer’s site, and Buyer agrees to indemnify, hold harmless and defend Seller against any claims arising out of such conditions or deficiencies. So as not to discourage Seller from voluntarily addressing health or safety issues while at Buyer’s site, in the event Seller does not address such issues by making observations, reports, suggestions or otherwise, it is understood and agreed that Seller shall nevertheless have no liability or responsibility arising on account thereof.

19. Delays and Damages – Force Majeure. A) In the event of delays in the performance of a Party’s obligations hereunder to the extent caused by unforeseeable conditions beyond such Party’s reasonable control, including, but not limited to acts of God, acts of civil or military authority, governmental restrictions, prohibitions and regulations, fire, storms, strikes, floods, quarantine restrictions, war, riot, the Contract deadline shall be extended by an equitable period of time. For the avoidance of doubt, a party’s financial inability to perform shall not excuse its performance. This Section shall in no event be construed to relieve Buyer from the obligation to pay for goods shipped by Seller.

20. Indemnification. Seller shall indemnify, defend and hold Buyer harmless for any claim, cause of action or liability incurred by the Buyer as a result of third-party claims for personal injury, death or damage to tangible property, to the extent caused by seller negligence. Seller shall have the sole authority to direct the defense of and settle any indemnified claim. Sellers’s indemnification is conditioned on Buyers (a) promptly, within the Warranty Period, notifying the seller of any claim, and (b) providing reasonable cooperation in the defense of any claim.


22. Buyer’s Negligence and Insurance. Seller shall not be responsible for losses or damages arising out of the negligence of the Buyer, its employees, agents, or architects or those of third parties for whom Seller is not responsible, or losses for which the Buyer has agreed to provide insurance. If both Seller and Buyer are negligent and the negligence of both is the proximate cause of the accident, then each party will be responsible for its portion of the liability or damages (excluding consequential or indirect damages which are disclaimed by Seller) resulting therefrom equal to such party’s comparative share of the total negligence.

23. Severability. Should any part of this Contract be declared invalid or unenforceable, such decision shall not affect the validity of any remaining portion, which remaining portion shall remain in full force and effect.

24. Assignment/Subcontracts. This Contract shall be binding upon and inure to the benefit of the parties and their permitted successors, and assigns. Seller may not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Buyer. Buyer may assign any of its rights or delegate any of its obligations to any entity acquiring all or substantially all of Buyer’s equity interests or assets. Any purported assignment or delegation in violation of this Article is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Contract. Seller may subcontract any portion of the Work with Buyer’s advance written consent.

25. Disputes. If a dispute arises hereunder, the parties will confer and attempt to amicably resolve the dispute. If after good faith negotiation, the parties cannot reach agreement, then the matter will be finally resolved in any court having jurisdiction and venue located within the County of Oakland, State of Michigan, or the U.S. District Court for the Eastern District of Michigan.

26. Entire Agreement, Contract Interpretation, Governing Law. All communications, written and verbal, between the parties with reference to the subject of this Contract prior to the date of acceptance are merged herein, and this Proposal, when duly accepted and approved, shall constitute the sole and entire agreement and Contract between the parties. No change in or modifications of said Contract shall be binding upon the parties or either of them unless the changes or modifications shall be duly accepted in writing by both parties. Unless Seller expressly agrees to the contrary in writing, these General Terms and Conditions of Sale (including statements made in the Proposal) shall govern any conflict with any in Buyer’s documents. Any contract resulting from this Proposal shall be construed, governed, and enforced in accordance with the laws of the State of Michigan, exclusive of the choice of law rules thereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Contract.

27. Notices. In any case where any written notice or other communication is to be given hereunder, such notice or communication shall be in writing and (a) personally delivered, (b) sent by registered United States mail, postage prepaid, return receipt requested, (c) transmitted by fax or (d) sent by way of a recognized overnight courier service, postage prepaid, return receipt requested with instructions to deliver on the next business day.