Standard Terms and Conditions For Purchases of Goods and Services
Preamble
Wing Control, its operating divisions, and subsidiaries, are each herein referred to individually and collectively as the “Buyer” and the person or entity selling goods to Buyer is referred to as the “Vendor.” Buyer and Vendor may hereinafter be individually referred to as “Party” and collectively as “Parties.” Purchase of any goods or services is expressly conditioned on Vendor’s assent to these Standard Terms and Conditions (“STC”).
Any contract, purchase order, repair order, quote and/or general terms agreement (collectively referred to as the “Agreement”) between the Parties, for the purchase of goods or services, shall be formed in accordance with these STC. These STC shall apply to all future transactions between Buyer and Vendor, even without express agreement being repeated, and are deemed to be accepted upon receipt of the goods or services purchased. Any acceptance of Vendor’s offer is expressly limited to acceptance of these STCs and Buyer expressly objects to any additional or different terms proposed by Vendor. Any differing terms and conditions of the Vendor are hereby expressly contradicted unless expressly agreed to in a subsequent writing signed by an authorized representative of the Buyer.
The Agreement and these STC shall be read in conjunction, shall form an integral part of the Agreement, and all references to the “Contract” herein shall include these STC and any Agreement.
These STC and/or any Agreement contains all agreements, arrangements and stipulations between the Parties in respect to the goods or services purchased, and supersedes all previous agreements, proposals, arrangements and stipulations with respect to the same subject matter. The Vendor acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Buyer which is not set out in the Agreement.
These STCs shall be divided as follows:
Section 1. Purchase of Goods
Section 2. Purchase of Services
Section 3. Additional Legal Provisions
Section 1. Purchase of Goods
1. Acceptance: This Purchase Order (herein referred to as the “Order”) is neither an expression of acceptance of any offer made to Buyer by Vendor nor a confirmation of any contract or agreement between Buyer and Vendor; this order is an offer to the Vendor to contract on the terms set forth herein, and such offer expressly limits acceptance by Vendor to the terms set forth herein. These Terms and Conditions shall supersede and replace all terms and conditions appearing or referred to on the face or on the reverse of any proposal, acknowledgement, or acceptance or any other communication issued by the Vendor in connection with such Order.
2. Condition of Material: All repaired/overhauled material, parts, equipment, or items (“Material”) supplied by Vendor must have been repaired/overhauled per OEM specifications. All Material is guaranteed repairable if as removed or guaranteed serviceable if repaired/overhauled. Unless otherwise specified in writing, Vendor confirms that it has not knowledge of any serviceable or overhauled item included in this Order having failed in any repair process prior to the current certification. If a unit purchased on this Order has been deemed non-repairable or out of repair limits, all documentation from the prior repair attempt must be presented to Buyer for approval prior to this Order becoming effective.
3. Specification and Certification:All Material supplied by Vendor shall comply with the applicable part numbers and other specifications stipulated on this Order. No substitutes are permitted except upon the prior written consent by an authorized representative of Buyer. Material subject to Federal Aviation Regulations must have been manufactured in accordance with FAR Part 21 Sub part F, G, K or O and must be certified accordingly. Material manufactured outside the U.S.A. which is to be fitted to a U.S. type certificated product shall be imported into the USA in accordance with FAR part 21 Sub-part N, under a certificate of airworthiness. Material manufactured outside the United States under
EASA, JAA or other approved Civil Aviation Authority shall be certified by EASA Form One, JAA Form 1 or approved equivalent Authorized Released Certificate/Airworthiness Approval Tag. All Material in new, overhauled, modified, repaired or serviceable condition shall be appropriately certified in accordance with FAA, EASA, JAA or approved Civil Aviation Authority airworthiness requirements. All new/factory new Material must be supplied with an original 8130.
4. Traceability:Buyer accepts Material only if traced back to an airline with all legal documents and non-incident statement from the last operator provided and in accordance with the FAA Advisory Circular 20-62, latest revision. All factory new Material must have OEM trace. All standard parts shall be accompanied by a certificate from the OEM and distributor stating that the parts fully comply with the applicable published national, international, or industry specification stated on this Order, and include a Non–Incident /Non-Accident letter stating that the parts have not been involved in an incident or accident.
5. Packaging:All goods will be packed and marked (including notice of hazardous substances) in accordance with industry standards and will comply with applicable laws and carrier requirements. Goods will be packed in accordance with ATA 300. Each container will be marked with applicable Order number and be accompanied by one copy of the shipping papers. All Material shipped to Buyer must reference on the air waybill the Order number, part number, and serial number if applicable.
6. Title and Risk of Loss: Title and risk of loss of goods purchased hereunder will be borne by Vendor until goods are received by Buyer at Buyer’s facility identified on the face of this Order, whereupon title and risk of loss will be transferred to the Buyer.
7. Termination for Convenience:Buyer may at any time prior to delivery terminate this Order for its convenience, in whole or in part, by written, telegraphic or verbal notice confirmed in writing to Vendor. Upon receipt of notice to terminate, Vendor shall cease all production and provision of goods. If Vendor has specifically manufactured the goods to fill this Order and is unable to make other commercially reasonably disposition of the goods, Buyer shall reimburse Vendor the cost incurred for the line of work performed by Vendor in respect of such goods at the time of written notification by Buyer. Vendor will mitigate such costs to the extent it is reasonably possible. Buyer’s liability under this paragraph will not exceed the aggregated price specified in this Order.
8. Returns: Buyer may, in its sole discretion, at any time and from time to time, within (60) days after acceptance of the goods, return to Vendor any part or all goods and receive full credit on such return.
9. Warranties:Vendor warrants that (a) all goods and services when delivered will be merchantable and free from defects in workmanship and material, will confirm strictly to the specifications, drawings, samples, or other description specified herein or furnished herewith, and will be fit for their ordinary intended purposed and any special purpose specified by Buyer; (b) it has good title to the goods free from all encumbrances and that it will defend such title against demands of all persons whomsoever arising; (c) all goods of Vendor’s design or production will be free from defects in design or production; and (d) it has all required authority and approvals to sell the goods to and perform the services for the Buyer. All warranties shall run to Buyer, its successor’s assigns, and all persons to whom the good m
ay be resold.
10. Notification of Nonconforming Material: Vendor shall notify Buyer of any and all nonconformities when discovered by Vendor for both Material already delivered and Material in process. Vendor shall also obtain approval from Buyer for nonconforming product disposition.
Section 2. Purchase of Services
1. Terms of Agreement and Acceptance: Vendor shall carry out or arrange the completion of the maintenance, repair, and/or overhaul services (the “Services”) of the engine and aircraft composite and component parts (collectively referred to as “Unit(s)”) under the control of Buyer as further set forth in the applicable quote, repair order, and/or general terms agreement (collectively referred to as the “Agreement”).
Vendor acknowledges and agrees that any shipment to it by Buyer for the performance of Services with notice of these STC and without specific written objection thereto, constitutes acceptance of the bid, proposal, or quote and of these STC as the entire agreement between the Parties with respect to the subject matter. Any repair order(s) and Vendor’s performance of such Services shall also constitute Vendor’s assent to these STC. Additionally, the Parties’ execution of a general terms agreement shall constitute as acceptance of these STC and thereby formulate the entire agreement.
2. Services Standard and Performance of Services: All services performed and materials furnished by Vendor inproviding the Services shall be in in accordance with the requirements set forth by the Airworthiness Authority identified by BUYER and in accordance with Vendor’s or Vendor’s subcontractor’s (whichever is applicable) Quality Manual and Procedures approved by the FAA under Part 145 (“QMP”) and Vendor’s maintenance program to the extent not contrary therewith. Airworthiness Authorities shall mean the United States of America Federal Aviation Administration (“FAA”), European Aviation Safety Agency (“EASA”), or other civil aviation agency (“CAA”) or any successor, assign, or future equivalent administration regulating aviation maintenance, repair, and overhaul procedures. Vendor warrants that it holds FAR 145 Repair Station Certificates with ratings applicable to performance of the Services being provided and will maintain its Repair Station Certification under Part 145, or future equivalent accepted FAR 145 Certificate.
3. Right to Subcontract: Vendor shall not have the right to subcontract the performance of Services set forth here under without the express prior approval of Buyer. In the event Buyer approves Vendor’s request to subcontract any or all of its obligations hereunder, Vendor warrants that its subcontractor shall perform the Services in accordance with the maintenance approvals set forth in Section 2 above, and shall be a company, organization, or individual approved for the purpose by the FAA or any other applicable authority as deemed by Buyer. The performance of Services by any subcontractor shall not relieve either Party of any of its obligations under the Agreement.
4. Terms of Payment: Unless otherwise provided for in the Agreement, Vendor shall issue a monthly invoice for the Services. All invoices submitted by Vendor for payment shall be made payable in United States Dollars (“USD”) and net 30 days at the location identified therein. Payment will be deemed to have been made upon Buyer’s wire of payment.
In the event of a dispute of any charge in the invoice, Buyer shall, prior to the payment due date of such invoice, notify Vendor of the dispute and state the reasons why it believes the disputed amount was improperly invoiced. Any undisputed portion of such invoice shall be paid by the due date and the Parties shall continue performing their respective obligations under the Contract while the dispute is pending. The Parties will thereby commence with dispute negotiations as set forth in the Dispute Resolution Section of these STC.
5. Delivery, Redelivery and Packing: Unless otherwise provided for in the Agreement, Buyer shall prepare and package the Unit(s) to the Vendor’s repair facility. Any and all costs associated with delivering the Units to Vendor shall be included in the price stated in the Agreement. Vendor shall be responsible for the redelivery of all such Units upon completion of Services on a freight prepaid basis to Buyer, and completed Unit(s). With respect to delivery, Buyer shall not be responsible for any delay and/or failure to comply with the Contract due to circumstances beyond its reasonable control.
6. Risk of Loss: Risk of loss or damage to Buyer’s Unit remains with Buyer at all times, except with respect to loss or damage to an item of the Unit under Vendor’s care, custody, and control following delivery and redelivery.
7. Title: Title to each item of the Unit(s) remains with Buyer or the owner thereof at all times. Buyer shall grant Vendor a license for the Unit(s) in order to perform the Services under the Agreement.
In the event of an exchange, title shall pass from Vendor to Buyer upon the installation of the exchange part to the Unit or aircraft as the case may be. Title to all new or replacement parts or materials placed on or attached to, installed on or becoming a part of any Unit, that were purchased or otherwise supplied or manufactured by Vendor or its approved subcontractors, remains with Vendor or such subcontractor until installation onto Buyer’s Unit at the time of Services.
8. Warranty: Vendor warrants that the Services performed on Buyer’s Unit(s) shall be performed in a workmanlike manner and that the parts used therein will be free from defect in material and manufacturer when provided by Vendor. Vendor further warrants the Services performed on Buyer’s Unit(s) shall fit for its particular purpose andshall be merchantable. This Section shall not limit the any and all warranties granted to Buyer under statute.
If any Services performed by Vendor for Buyer prove to have been performed in a defective manner, then Vendor is obligated and liable, with respect to each defect, to correct or replace such defect in the individual part(s) directly affected. Buyer agrees to advise Vendor within thirty (30) days of the reported failure providing the:
i. Date of installation;
ii. Date of failure and hours of operation;
iii. Aircraft Tail Number (if Unit was installed on an aircraft);
iv. Nature of failure; and
Unless otherwise agreed to by the Parties, Buyer shall report such warranty claims within the timeframe below:
Overhauled Units: twenty-four (24) months after completion of the Unit or installation date of work performed
Repaired Units: twelve (12) months after completion of the Unit repair or installation date of work performed
Bench Test/Recertification: No warranty shall apply
In the event vendor elects to repair the Unit subject to Buyer’s warranty claim, Vendor is limited to the corrective
action listed below:
i. by specialist at the Vendor’s repair facility or at another location as determined by BUYER;
ii. in situ by Vendor; or
iii. by a third party approved beforehand by Buyer and at Vendor’s expense.
Cost of removal, incoming transportation, and reinstallation is included in the price listed in the Agreement. Notwithstanding the foregoing, Vendor will cover the cost of return transportation for repairs deemed to be covered under the warranty policy. Vendor hereby gives to Buyer, insofar as Vendor or Buyer is entitled, the benefits under parts warranties which may exist in favor of Vendor or Buyer by manufacturers, and will process warranty claims with manufacturers on Buyer’s behalf. Any allowance given by manufacturers on warranty claims will be credited to Buyer’s account promptly.
9. Suspension of Performance: Buyer may, by written order, suspend all or part of the Services to be performed by Vendor under the Contract for any period not to exceed ninety (90) Days. Within such period, or any extension thereof to which the Parties may agree, Buyer shall either: (a) cancel such suspension, or (b) terminate the work covered by suspension in accordance with the Termination Section herein.
Section 3. Additional Legal Provisions
The following provisions shall apply to the purchase of goods or services as between the Parties.
1. Price and Taxes: The prices for the purchase of goods or services shall be set out in the applicable Agreement. The prices set forth in the Agreement are all inclusive, including, but not limited to taxes, the cost of packing, crating, materials and delivery to the DDP (Incoterms 2010) point. Prices are not subject to revision.
2. Delays: Time is of the essence for performance of this Order. If any goods or services are not delivered within time specified, Buyer in addition to any other remedies provided by law, may refuse to accept all or any part of such goods or services and cancel this order; provided however, neither party will be liable for delays in delivery caused by force majeure which shall include Acts of God, war, fire, flood, explosion or earthquakes or any other cause beyond its control.
In the event of a Force Majeure Event, the obligations of either Party may be extended for a period required in order to allow the other Party the same opportunity to perform its obligations as it would have had in the absence of the relevant Force Majeure Event.
This Section shall not, however, relieve the prevented Party from using its commercially reasonable efforts to avoid or remove such causes and continue performance upon removal or termination of the Force Majeure Event. Each Party agrees to notify the other Party when a Force Majeure Event or an Excusable Delay occurs or is likely to occur, such notification being provided at the earliest possible date, and agrees to continue to advise such other Party of new schedules and/or change thereto. Additionally, within fourteen (14) days upon the cessation of the Force Majeure Event, the prevented Party shall give prompt written notice to the other Party of such cessation. Immediately upon such notification, the Parties shall continue with the performance of its obligations.
3. Termination: Either Party may terminate the Agreement, if the other Party shall:
a. Apply for or consent to the appointment of a receiver, trustee, custodian, intervener, or liquidator of itself or of all
or a substantial part of its assets;
b. File a voluntary petition in bankruptcy, admit in writing that it is unable to pay its debts as they become due or
generally not pay its debts as they become due;
c. Make a general assignment for the benefit of creditors;
d. File a petition or answer seeking reorganization of an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws;
e. File an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization, or insolvency proceeding; or
f. Have an involuntary proceeding commenced against it seeking bankruptcy or reorganization or the appointmentof a receiver, custodian, trustee, liquidator or other similar official, or all of its assets, and such proceeding shall not be dismissed within 30 days of the filing thereof.
In the event that either Party commences with any of the insolvency circumstances noted directly above, then the other Party may immediately terminate the Agreement, including any work in progress, upon written notice to such other Party, unless the other Party, within fifteen (15) days of such notice, gives adequate assurances of the future performance of the Agreement.
If either Party fails to perform its obligations under the Agreement, written notification will be provided to the defaulting Party. If this failure continues for thirty (30) days after written notification is received, the non-defaulting Party may terminate the Contract immediately upon written notice. Notwithstanding the foregoing, Buyer shall have the right to terminate the Contract if Vendor:
a. Commits a breach of any material term of the Contract (or commits a series of minor breaches amounting in total to a material breach), which has not been remedied within five (5) days of receipt of a written notice requiring the remedy of such a breach; or
b. Files for a voluntary petition in bankruptcy, shall make assignment for the benefits of creditors of all or substantially all of its assets, or shall fail to secure dismissal or an involuntary petition in bankruptcy within sixty (60) Days after the filing thereof.
In the event of termination as described above, such terminating Party shall deliver a Notice of Termination to the other Party specifying the extent of termination and the effective date. Upon Notice of Termination, Vendor shall immediately stop all Services hereunder and shall immediately cause any and all of its suppliers and/or subcontractors to cease work. In no event shall Buyer be liable to Vendor or any third party for any and all losses or damages as a result of the termination including, but not limited to, lost or anticipated profits, or unabsorbed indirect costs.
The premature termination of the Contract by act of the Parties shall not relieve the Parties of any liability, obligations,expenses or charges accrued up to the date of such termination. All rights accruing to the non-defaulting Party up to said date of termination shall remain in full force and effect. Additionally, such terminating act shall in no way affect or impair its right to bring suit or make claim for any default or breach of the Agreement.
4. Inspection: All services or goods ordered will be subject to inspection and acceptance at destination by Buyer or its authorized representative within a commercially reasonable time. Buyer, at its sole option, may inspect all or a sample of the services or goods, and may reject all or any portion of the services or goods if it determines theservices or goods are nonconforming or defective. If Buyer rejects any portion of the services or goods, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind the Order in its entirety; (b) accept the services or goods at a reasonably reduced price; or ( c) reject the services or goods and require replacement of the rejected services or goods. If Buyer requires replacement of the services or goods, Vendor shall, at its expense, within five (5) business days replace the nonconforming services or goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective services or goods and the delivery of replacement services or goods. If Vendor fails to timely deliver replacement services or goods, Buyer may replace them with services or goods from a third party and charge Vendor the cost there of and terminate this Order for cause. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Vendor’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
5. Indemnity: Vendor hereby agrees to release, Indemnify, defend and hold Buyer, its subsidiaries, affiliates and shareholders, and all of their respective officers, directors, members, employees, agents, successors and assigns (collectively referred to as the “Buyer Indemnitees“) harmless against any and all losses, liabilities, damages, costs, and expenses resulting or arising (directly or indirectly) from (a) infringement or alleged infringement of any United States or foreign patent or any other intellectual property right by the services provided hereunder or by any of the goods delivered hereunder which were designed or manufactured by Vendor; and (b) for deaths of or injuries to any persons whomsoever, and for loss of, damage to delay in delivery or destruction of any property arising out of or in any way connected with the services performed or goods sold hereunder, except only to the extent such loss is caused solely by the gross negligence or willful misconduct of any Buyer Indemnitee. Promptly on a Buyer Indemnitee’s request Vendor will defend the Buyer Indemnitees against such claims, actions, proceedings and litigation and further pay any and all such losses, liabilities, costs, and expenses arising from any such claim, demand, action, proceeding, litigation, or settlement relating thereto.
In no event shall the Parties be liable to the other Party or any third party for any indirect, incidental, or consequential, punitive, or any other damages of any kind including, but not limited to, business interruption, loss of customers, loss of data, loss of or damage to reputation or goodwill, loss or liability under or in relation to any other contract, lost revenues, profits, opportunity or anticipated savings and any indirect or consequential loss or damage, for any matter arising out or in connection with the performance or non-performance of the Agreement, whether such liability is asserted on the basis of contract, tort, products liability, negligence, statute or otherwise at law, even if a Party has been advised of the possibility of such damages.
6. Right of Access: Vendor shall provide right of access to Buyer, its customers, and regulatory authorities to all facilities involved in the manufacture or supply of the goods or services ordered hereunder and to all records of Vendor applicable thereto. Vendor shall retain records associated with this Order for a period of seven (7) years.
7. General: If there is an express conflict between the terms of this Order and the provisions of any current written agreement between Vendor and Buyer also intended expressly to apply to the goods and/ or services ordered herein, those provisions will control only for those goods and services contemplated both by this Agreement. In filling this order, Vendor and its subcontractor will comply with all applicable federal, state and local laws and the rules and regulations and shall furnish evidence of such compliance as required by Buyer.
8. Assignment: Vendor may not assign any rights or obligations arising under this Order without the prior written consent of Buyer.
9. Changes: Vendor shall notify Buyer in writing in advance of any and all: (1) changes to the goods, their specifications, and/or composition, (2) process changes, (3) supplier changes, and (4) change of manufacturing facility, if applicable. Vendor shall obtain Buyer’s approval of such changes.
10. Modifications: No modifications of this Order will be binding on Buyer unless in writing and signed by Buyer or its agent. Usage of trade, course or performance any course of dealing cannot supplement or modify this Order. Buyer reserves the right to make, and Vendor agrees to accept, reasonable changes to this Order, including changes as to packing, leasing, destinations, specifications, designs, and delivery schedules but changes will be authorized by Buyer’s written instructions. If such instructions affect delivery or price, Vendor will notify Buyer Immediately, and an equitable adjustment in price s or other terms hereof will be agreed upon in a written amendment to this Order.Buyer’s (a) failure to insist on strict performance of any term or condition hereof; (b) failure or delay to exercise any right or remedy provided herein or by law or property to notify Vendor in the event of breach; (c) acceptance of or payment for services or goods hereunder ; or (d) approval of any design will not release Vendor from any of the warranties or obligations of this order and will not be deemed a waiver of any right of Buyer to insist upon strict performance here of or any of its rights or remedies as to any prior subsequent default hereunder ; nor will any purported oral modification or rescission of this Order by Buyer operate as a waiver of any term or condition hereof.
11. Set-off: Vendor agrees that Buyer may, at any time and from time to time, set-off, recoup or credit any amounts owed to Vendor hereunder against any amounts owed by Vendor to Buyer or any affiliate of Buyer. For the purposes hereof, affiliated means any parent corporation, subsidiary corporation, or corporation or other entity under common ownership or control with Buyer.
12. Governing Law: This Contract shall be constructed and governed according to the laws of the State of New York, without regard to its conflicts of law provisions. In the event the Parties are unable to amicably resolve a dispute, the Parties hereby irrevocably consent to the jurisdiction of the federal and/or state courts situated in the State of New York, USA. If the Vendor is from a country which has ratified the 1980 U.N. Convention on the Contracts for the international Sale of goods, the rights and obligations of the parties shall not be governed by such Convention, but shall be governed by the law of the State of New York. Vendor hereby waives; (a) the right to jury trial in any and all proceedings; (b) any and all objections to venue and inconvenient forum in the state and federal courts, referred to in this section and (c) any and all objections to service of process by certified mail, return receipt requested.
All disputes arising in connection with the Agreement, including any question regarding its existence or validity, shall first attempt, in good faith, to resolve such dispute through negotiations between higher level executives who have the authority to settle the controversy. The aggrieved Party shall notify the other Party of the nature of the dispute with sufficient facts to allow such other Party to investigate the aggrieved Party’s claims. Within thirty (30) Days of receipt of the aggrieved Party’s notice, the Parties shall arrange a meeting to discuss the dispute.
The Parties hereby agree that all disputes under the Contract that are not disposed of by mutual agreement within thirty (30) Days of their initial meeting shall be submitted to arbitration as follows: (a) to the jurisdiction of Court of American Arbitration Association (the “AAA”) sitting in New York City, NY; (b) all claims may be heard and determined by a single arbitrator under the AAA Expedited Commercial Rules of Arbitration in the English language, (c) waive any defense of an inconvenient forum, and (d) agree that a final judgment in any such proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
All relevant fees and expenses (including legal fees paid to retained lawyers) paid in connection with a dispute shall be indemnified by the losing Party in favor of the other Party within thirty (30) Days of a judgment being rendered. If the judgment satisfies the claims, in part, the indemnification shall be proportionate to the percentage of satisfied claims.
13. Export: Vendor understands that any goods, technology, or products manufactured from the technology furnished by Buyer pursuant to this Order are subject to export controls under the laws of the United States, including but not limited to: (i) U.S. exports regulations governing the export, transfer, or re-export of U.S. manufactured products, and products containing U.S. components, software, or technology as set forth in the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 772 et seq.; (ii) U.S. export regulations and laws restricting U.S. companies and their foreign affiliates and subsidiaries from doing business with certain embargoed countries and entities as set forth in the U.S. Foreign Asset Control Regulations (FACR), 31 C.F.R. §§ 500 et seq.; and (iii) the International Traffic in Arms Regulations, 22 C.F.R. §§ 120 et seq. Vendor agrees, warrants and represents that it will not export or reexport any goods, technology, or products manufactured from the technology that are the subject of this Order in violation of the export laws of the United States. Vendor shall provide any and all import and export documents as requested by Buyer in order to comply with the requirements herein. Should Vendor fail to provide such documents, Buyer shall be entitled to return all or any part of the goods furnished by Vendor. Vendor shall indemnify and hold harmless Buyer from any costs, penalties, fines, damages, expenses or liabilities, including attorney fees incurred by Buyer in connection with any violation of applicable export control laws and regulations by Seller.
14. Confidentiality: Vendor acknowledges that it will obtain confidential information provided as a result of this Order, including, without limitation, all provisions of this Order, drawings, specifications, schematics, and formulae (the“Confidential Information”). Confidential Information will not include information which is already in the public domain or which is already in Vendor’s possession and not otherwise confidential or which was received from third parties having a right to disclose such information. Vendor agrees to keep the Confidential Information strictlyconfidential and will not disclose nor permit the disclosure of nor use the Confidential Information for any purpose whatsoever, except as provided herein. Vendor may disclose the Confidential Information to such of its officers, directors, attorneys, accountants, lenders, members and employees who are required to know the Confidential Information in the course of performance of this Order or their professional services (“Disclosees”). All Disclosees will be informed of the confidential nature of the Confidential Information and will, prior to obtaining access thereto, agree to keep this Confidential Information confidential in accordance with the terms of this Order. If so required, Vendor may also disclose the Confidential Information in connection with the enforcement of this Order or pursuant to any valid court order, regulation or other lawful order or process compelling such disclosure but only after notifying Buyer of such disclosure prior to its occurrence.
15. Notices and Reporting: All notices or requests exchanged in connection with the Contract shall cite the applicable provision in the Agreement or these STC and shall be given by first class mail, telex, fax, email, or air carrier delivery, fully prepaid and addressed to each Party at the address set forth in the Agreement.
Any such notice, request, invoice or other communication will be considered given on the date of hand or courier delivery if delivered by hand or overnight courier, on the date of transmission, as shown by confirmation of transmission if delivered by fax, when received into the “inbox” of the recipient and a “read receipt” is returned to the sender if delivered by email, or on the third day following the date of deposit in the United States mail as provided above.
16. Severability: If any term, clause or provision contained herein is declared or held invalid or enforceable by any court of competent jurisdiction, such declaration shall not affect the validity or enforceability of any of the term, clause or provision hereof.
17. Survivability: If this Order expires, is completed, or is terminated, Vendor shall not be relieved of those obligations contained herein. All the provisions will survive the termination.
Standard Terms and Conditions of Sale
1. Agreement: This Agreement is entered into between Wing Control (the “Seller”) and Customer for the sale of aircraft and engine parts and components (individually, a “Part” and collectively, the “Parts”) and is incorporated by reference in Seller’s quotation (the“Quotation”). This Agreement supersedes any and all prior contemporaneous agreements, negotiations, representations, warranties, and communications. This Agreement prevails over any of Customer’s general terms and conditions of purchase whether or not submitted with Customer’s purchase order. Acceptance of Customer’s purchase order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.
2. Pricing and Payment: All payments shall be made in United States Dollars. Title to all goods listed in the Quotation shall remain with Seller until fully payment is received from Customer. Quoted prices are valid for thirty (30) days and subject to prior sale. Subject to credit approval, all balances must be payable net thirty (30) days or as otherwise provided for in the Quotation. All past due amounts shall bear interest at a rate of one and one-half percent (1 ½%) per month or the maximum amount permitted by law commencing on the due date until the date the invoice amount is paid in full. Customer agrees to pay any and all costs of collection including attorney’s fees in the event it becomes necessary to enforce the payment of Seller’s invoices. Customer shall not have a right to set-off amounts due to Seller hereunder against any amount owed by Seller to Customer.
3. Order Confirmation: All orders from Customer must be made in writing and are subject to approval and confirmation upon receipt by Seller. No order is guaranteed until Seller issues an order confirmation to Customer. Cancellation of orders may not be made without the written consent of Seller and such orders are subject to a 15% cancellation fee. Customer’s orders must be a minimum of $500 with a line item minimum of $50 (excluding expendables).
4. Returns: All returns for credit must be requested within thirty (30) days from invoice date. Any requests after such thirty (30) days will be denied. All returns are subject to a 25% restocking fee. Parts returned without written authorization will be subject to a 75% restocking fee. Parts must be returned in the original condition in which such Parts were sold to Customer.
5. Delivery Terms: Delivery terms are FCA Seller’s facility (Incoterms 2010), or such other facility as Seller may designate, unless otherwise agreed to by the parties in writing. All Parts delivered shall be packaged in accordance with Seller’s standard.packing procedures for such Parts. Customer shall, within fifteen (15) calendar days after receipt of the Parts, notify Seller of any nonconforming Parts, return such nonconforming Parts to Seller at Customer’s cost, and permit Seller a reasonable opportunity to replace such nonconforming Parts.
6. Delay in Delivery: Seller will not be liable for any delay in performance due to causes beyond Seller’s control including, but not limited to, embargoes, blockages, delays or refusals to grant export or import licenses or the suspension or revocation thereof, or any other acts or omissions of government, fires, floods, severe weather, or any other acts of God, quarantines, labor strikes, riots, insurrection, acts of criminals or terrorists, war, material, shortages or delays in delivery by third parties. In the event of such delay the delivery date shall be extended for a period of time as may be reasonably necessary to compensate for such delay. Seller will not be liable for lost profits, loss of business or other incidental, consequential, indirect or punitive damages arising out of any delay. Customer agrees that, for any liability arising out of delay, Seller is not liable or responsible for any amount of damage above the aggregate dollar amount paid by Customer for the purchase of the Parts under this Agreement.
7. Warranty of Title: Seller represents that it shall have good and marketable title to the Parts sold to Customer on the date of sale. Title shall be conveyed by Seller to Customer on the date of sale.
8. Disclaimer of Warranties: OTHER THAN THE WARRANTY OF TITLE GRANTED HEREIN, NO WARRANTY SHALL BE PROVIDED BY SELLER WITH RESPECT TO PARTS SOLD HEREUNDER, AND EACH PART SOLD TO CUSTOMER IS SOLD IN “AS-IS” CONDITION WITH ALL ASSIGNABLE WARRANTIES FROM THE LAST OPERATOR OR REPAIR FACILITY (IF SUCH WARRANTIES EXIST), AND THE OBLIGATIONS AND LIABILITY OF SELLER HEREUNDER ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, AND CUSTOMER HEREBY WAIVES AND RELEASES SELLER FROM ANY AND ALL OTHER WARRANTIES, AGREEMENTS, GUARANTEES, CONDITIONS, OBLIGATIONS, DUTIES, REPRESENTATIONS, REMEDIES OR LIABILITIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PARTS, ARISING IN CONTRACT OR IN TORT, WHETHER UNDER THEORIES OF NEGLIGENCE, STRICT NEGLIGENCE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) ANY IMPLIED WARRANTY ARISING FROM COURSE OFPERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, FOR LOSS OF USE OR DAMAGE TO ANY ENGINE OR AIRCRAFT OR ANY OTHER PROPERTY FOR LOSS OF REVENUE OR PROFIT WITH RESPECT TO ANY SUCH PROPERTY FOR LIABILITY OF CUSTOMER TO ANY THIRD PARTY OR FOR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER WITH RESPECT TO ANY PART SOLD HEREUNDER, EXCEPT IN THE CASE OF SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Customer’s Insurance: Customer shall carry and maintain such insurance in full force and effect and in types and amounts as would be carried by other companies engaged in the Customer’s industry. Such policies of insurance shall be primary with respect to the Indemnities of Customer set forth herein and shall contain waivers of subrogation of the insurers in favor of the Seller Indemnitees. Customer shall provide Seller certificates of insurance upon Seller’s request.
10. Indemnity: Customer hereby agrees to release, Indemnify, defend and hold Seller, its subsidiaries, affiliates and shareholders, and all of their respective officers, directors, members, employees, agents, successors and assigns (collectively referred to as the “Seller Indemnitees“) harmless against any and all losses, liabilities, damages, costs, and expenses resulting or arising (directly or indirectly) from property damage or injury to or death of any person and any other direct, indirect, incidental, consequential, economic, or statutory civil damges any of which arise out of or are in any way related to the provision of services by the Seller Indemnitees or the use, operation, repair, maintenance, or disposition of Parts provided under any order, whether or not arising from breach of contract, strict liability, or tort (including negligence), provided however, Customer shall not be required to indemnify the Seller Indemnitees for claims or liabilities arising from the gross negligence or willful misconduct of any Seller Indemnitee.
11. Limitation of Liability: Seller’s lability on any claim of any kind including negligence, for any loss (including death) or damage arising out of or connected with, or resulting from this Agreement or the Quotation, or from the performance or breach thereof, or from the manufacture, sale, delivery, or use of any goods covered by or furnished under the Quotation shall not exceed the price allocable to the Part which gives rise to the claim. In no event shall Seller be liable for special, incidental, indirect, punitive, or consequential damages including, but not limited to, lost revenue or profit and cost of replacements goods.
12. Governing Law: This Agreement shall be constructed and governed according to the laws of the State of New York. Any disputes or claims shall be filed in the courts of New York City, New York or as otherwise agreed to in writing by the Parties.Customer agrees to pay all costs and expenses, including reasonable attorney’s fees incurred by Seller in any action to enforce its rights hereunder. Customer hereby waives; (a) the right to jury trial in any and all proceedings; (b) any and all objections to venue and inconvenient forum in the state and federal courts, referred to in this section and (c) any and all objections to service of process by certified mail, return receipt requested.
13. Export Compliance: Customer understands that any goods, technology, or products purchased from Seller are subject to export controls under the laws of the United States, including but not limited to: (i) U.S. exports regulations governing the export, transfer, or re-export of U.S. manufactured products, and products containing U.S. components, software, or technology as set forth in the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 772 et seq.; (ii) U.S. export regulations and laws restricting U.S. companies and their foreign affiliates and subsidiaries from doing business with certain embargoed countries and entities as set forth in the U.S. Foreign Asset Control Regulations (FACR), 31 C.F.R. §§ 500 et seq.; and (iii) the International Traffic in Arms Regulations, 22 C.F.R. §§ 120 et seq.Customer agrees, warrants and represents that it will not export or re-export any goods, technology, or products purchased from Seller in violation of the export laws of the United States. Customer shall provide any and all import and export documents as requested by Seller in order to comply with the requirements herein. Should Customer fail to provide such documents, Seller shall be entitled cancel the order.
14. Entire Agreement: Seller rejects any of Customer’s inconsistent conditions in purchase orders or however stated and such shall not be part of this Agreement, unless specific and explicit references to changes to this Agreement are made in writing by an authorized representative of Seller.
15. Confidentiality: Customer acknowledges that it will obtain confidential information provided as a result of this Agreement, including, without limitation, all provisions of the Quotation, drawings, specifications, schematics, and formulae (the “Confidential Information”). Confidential Information will not include information which is already in the public domain or which is already in Customer’s possessionand not otherwise confidential or which was received from third parties having a right to disclose such information. Customer agrees to keep the Confidential Information strictly confidential and will not disclose nor permit the disclosure of nor use the Confidential Information for any purpose whatsoever, except as provided herein. Customer may disclose the Confidential Information to such of its officers,directors, attorneys, accountants, lenders, members and employees who are required to know the Confidential Information in the course of performance of this Agreement or their professional services (“Disclosees”). All Disclosees will be informed of the confidential nature of the Confidential Information and will, prior to obtaining access thereto, agree to keep this Confidential Information confidential in accordance with the terms of this Order. If so required, Customer may also disclose the Confidential Information in connection with the enforcement of this Agreement or pursuant to any valid court order, regulation or other lawful order or process compelling such disclosure but only after notifying Seller of such disclosure prior to its occurrence.
16. Severability: If any term, clause or provision contained herein is declared or held invalid or enforceable by any court of competent jurisdiction such declaration shall not affect the validity or enforceability of any of the term, clause or provision hereof.
17. Survivability: If this Order expires, is completed, or is terminated, Customer shall not be relieved of those obligations contained herein. All the provisions will survive the termination.