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AVIONICINSTRUMENTS LLC STANDARD TERMS AND CONDITIONS OF SALE
1. Applicability.
These terms and conditions (“Terms”) are the only terms thatgovern the sale of goods or performance of services by Avionic Instruments LLC(“Seller”) to or on behalf of the buyer (“Buyer”). Notwithstanding anythingherein to the contrary, if a contract signed by both parties exists coveringthe sale of goods or performance of services covered hereby, the terms andconditions of that contract will prevail to the extent inconsistent with theseTerms. Any quotation or confirmation of order accompanying these Terms, or intowhich these Terms are incorporated by reference (collectively, the“Agreement”), comprises the entire agreement between the parties and supersedesall prior or contemporaneous understandings, representations, warranties, andcommunications, written or oral. These Terms prevail over any of Buyer’sgeneral terms and conditions of purchase regardless of whether or when Buyersubmitted its order or such terms. Fulfillment of Buyer’s order does notconstitute acceptance of Buyer’s terms and conditions and does not serve tomodify or amend these Terms. All Products are delivered in accordance withSeller’s specification and quality management system requirements. Fulfillmentof Buyer’s order does not constitute acceptance of Buyer’s terms and conditionsand does not serve to modify or amend these Terms. Under no circumstances maythe Buyer cancel any order within 90 days of the agreed delivery date. Sellermay, in its sole discretion, assess applicable cancellation, rescheduling, orexpedite fees in connection with any such cancellation or modification request.
2. Deliveryand Shipping Terms.
Goods or services will be delivered or performed within leadtime after receipt of Buyer’s order. Seller is not liable for any delays, lossor damage in transit. Unless otherwise agreed in writing, Seller shall delivergoods FCA (Incoterms 2020) Seller’s facility (the “FCA Point”) using Seller’sstandard methods for packaging. Buyer shall take delivery of the goods promptlyafter receiving notice that the goods have been delivered to the FCA Point, atwhich point title and risk of loss shall pass to Buyer. Buyer shall beresponsible for loading, if applicable. Seller may, in its sole discretion,without liability or penalty, make partial shipments of goods to Buyer. Eachshipment will constitute a separate sale and Buyer shall pay for goods shipped,whether such shipment is in whole or partial fulfillment of Buyer’s order.
If for any reason Buyer fails to accept delivery of goods onthe delivery date or if Seller is unable to deliver goods on the designateddelivery date because Buyer has not provided appropriate instructions,documents, licenses or authorizations: (i) risk of loss to the goods shall passto Buyer; (ii) the goods shall be deemed to have been delivered; and (iii)Seller, at its option, may store the goods until Buyer picks them up and Buyershall be liable for all related costs and expenses (including, withoutlimitation, storage and insurance).
The Seller shall not be liable for, nor shall the Buyerimpose, any monetary claims, penalties, chargebacks, or deductions related tolate delivery of the Products, unless such terms have been expressly agreed toin writing by the Seller prior to the delivery date. No implied or unilaterallate-delivery penalties shall apply.
3. MinimumOrder and Quantity
Seller will not accept an order of less than $2,500 in valueexclusive of transportation charges. The minimum billing will be $350 for eachline item ordered. If Seller delivers to Buyer a quantity of goods differentthan the quantity set forth in the Agreement, Buyer may not object to or rejectthe goods or any portion of them by reason of the surplus or shortfall andshall pay for such goods the price set forth in the Agreement.
4. Titleand Risk of Loss.
Title to and risk of loss of the Goods shall pass to Buyerupon delivery of the Goods at the FCA Point. As security for Buyer’s obligationto pay the Price, Buyer hereby grants to Seller a purchase money securityinterest in all of Buyer’s right, title, and interest in and to the Goods,wherever located, whether now existing or hereafter arising or acquired,together with all accessions, replacements, modifications, and all proceedsthereof (including, without limitation, insurance proceeds)
5. Inspectionand Rejection of Nonconforming Goods.
(a) Buyer shall inspect the goods within five days ofreceipt (“Inspection Period”). Buyer will be deemed to have accepted the goodsunless it notifies Seller in writing of any Nonconforming Goods during theInspection Period and furnishes documentation reasonably required by Seller.“Nonconforming Goods” means only: (i) goods shipped are different thanidentified in Buyer’s order; or (ii) the goods’ label or packaging incorrectlyidentifies its contents.
(b) If Buyer timely notifies Seller of any NonconformingGoods, Seller shall, in its sole discretion, (i) replace such NonconformingGoods with conforming goods or (ii) credit or refund the Price forNonconforming Goods, together with any reasonable shipping and handlingexpenses incurred by Buyer in connection therewith. Buyer shall ship, at itsexpense and risk of loss, the Nonconforming Goods to Seller’s facility. IfSeller exercises its option to replace Nonconforming Goods, Seller shall, afterreceiving Nonconforming Goods from Buyer, ship to Buyer the replaced goods tothe FCA Point.
(c) The remedies set forth in Section 5(b) are Buyer’sexclusive remedies for the delivery of Nonconforming Goods. Except as providedin Section 5(b), Buyer has no right to return goods purchased under theAgreement.
(d) The Seller shall not be subject to, nor shall the Buyerimpose, any monetary deductions, offsets, penalties, or chargebacks arisingfrom the Buyer’s inability to receive, inspect, or accept the Products due tothe Buyer’s own quality assurance procedures, inspection processes, internaldelays, or logistics operations. Any delays or failures in receipt attributableto the Buyer’s processes shall not affect the Seller’s right to full payment asspecified in this Agreement.
6. Changes.
Seller may revise these Terms and Conditions from time totime. Any revised versions will be posted at http://www.avionicinstruments.com.Revisions will become effective upon posting unless otherwise stated. Buyer isresponsible for reviewing the Terms and Conditions periodically to stayinformed of any updates. Continued placement of orders after the effective dateof a revision constitutes Buyer’s acceptance of the revised Terms andConditions.
7. Price.
Buyer shall purchase the goods or services from Seller atthe prices (the “Price”) set forth in Seller’s quoted price or published pricelist in force as of the date that Seller accepts Buyer’s order or as otherwiseagreed in writing by the parties. Seller’s price list is subject to change atany time. All Prices are exclusive of sales, use and excise taxes and any othersimilar taxes, duties and charges of any kind imposed by a governmental entityon amounts payable by Buyer. Buyer is responsible for all such charges, costsand taxes, but Buyer is not responsible for taxes imposed on or with respect toSeller’s income, revenues, receipts, personnel or real or personal property orother assets.
8. PaymentTerms.
Unless the parties otherwise agree, Buyer shall pay allinvoiced amounts to Seller net 30 days from the date of Seller’s invoice. Theextension of credit to Buyer shall be subject to change by Seller at any time.Unless the parties otherwise agree, Buyer shall make all payments by check, inU.S. dollars. Buyer shall pay interest on late payments at the lesser of 1.5%per month or the highest rate permissible under applicable law, calculateddaily and compounded monthly from the date due until paid in full. Buyer shallreimburse Seller for costs incurred in collecting late payments, including,without limitation, reasonable attorneys’ fees. In addition to all otherremedies available under these Terms or at law (which Seller does not waive bythe exercise of any rights hereunder), Seller may, without liability, suspendor terminate the performance or delivery of any goods or services if Buyerfails to pay any undisputed amounts when due hereunder. Buyer shall notwithhold payment of any amounts due by reason of any set-off of a claim ordispute with Seller, whether relating to Seller’s breach, bankruptcy orotherwise to the maximum extent permitted by law.
9. Packaging
Prices include Products having standard commercial packingonly. Where special packing is required, contact Seller. Special packing may besubject to additional costs.
10. ProductNotices
Buyer shall provide all Seller-supplied product notices,warnings, instructions, recommendations, and similar materials to all users ofthe Product, including Buyer’s employees.
11. Warranty;Exclusive Remedy.
(a) Limited Warranty.
Seller warrants to Buyer that for a period of one (1) yearfrom the date of invoice of the Goods or performance of Services (“WarrantyPeriod”), the Goods and Services will (i) conform in all material respects toSeller’s published specifications applicable to the Goods or Services as of thedate of manufacture, and (ii) be free from material defects in materials andworkmanship.
(b) Disclaimer of Other Warranties.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS ORIMPLIED, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER SET FORTH IN THEAGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR ALL OTHER WARRANTIES,OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANYNONCONFORMANCE OR DEFECT IN THE GOODS OR SERVICES PROVIDED UNDER THE AGREEMENT,INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY ORFITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALINGOR USAGE OF TRADE, AND ANY OBLIGATION OR LIABILITY ARISING FROM NEGLIGENCE,STRICT LIABILITY, OR TORT; ANY MANUFACTURER OF AIRCRAFT INCORPORATING THE GOODSOR SERVICES; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS ORDAMAGE TO ANY AIRCRAFT.
(c) Third Party Products.
Products manufactured by a third party (“Third PartyProduct”) may constitute, contain, be contained in, incorporated into, attachedto or packaged together with, the goods. Third Party Products are not coveredby the warranty in Section 8(a), and for the avoidance of doubt, SELLERMAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT.
(d) Warranty Claims.
Seller is not liable for breach of the warranty set forth inSection 8(a) unless:
(i) Buyer gives written notice of the alleged defect, describingthe defect in reasonable detail, within the Warranty Period and within ten (15)days after Buyer discovers or should have discovered the defect;
(ii) Buyer, if requested, returns them to Seller’s facility,F.O.B. Avenel, NJ, U.S.A., at Seller’s expense for such examination, withinthirty (30) days after such written notice;
(iii) Seller is given a reasonable opportunity to examinethe Goods or Services; and
(iv) Seller reasonably verifies (in its sole discretion)Buyer’s claim that the goods or services are defective and have not beensubject to accident, abuse or misuse, and have been operated and maintained inaccordance with the manufacturer’s recommendations and specifications.
(e) Exclusions.
Seller is not liable for breach of the warranty set forth inSection 8(a): (i) if Buyer continues to use the Goods or Services after givingnotice under Section 8(d); (ii) if the defect arises due to failure to followSeller’s instructions as to storage, installation, use or maintenance of thegoods; (iii) if the goods are altered or repaired by anyone other than Sellerwithout Seller’s prior written consent; or (iv) for defects caused bynegligence, abuse or misuse of the goods, corrosion, fire, heat or normal wearand tear; or (v) caused by other excluded or improper conditions. Theseexclusions are without limitation.
(f) Sole Remedies.
Subject to Sections 8(d) and (e), with respect to any suchdefective goods or services during the Warranty Period, Seller shall, in itssole discretion, either: (i) repair or replace such goods (or the defectivepart) or reperform the services or (ii) credit or refund the price of suchgoods or services at the pro rata Price but, if Seller requests, Buyer shall,at Seller’s expense, return such goods, or services if applicable, to Seller. RepairedProducts will be warranted for the remainder of the original warranty period orfor three (3) months from the date the repaired goods are reshipped to Buyer,whichever is longer.
(g) Exclusive Remedy.
THE REMEDIES SET FORTH IN SECTION 8(f) ARE BUYER’S SOLEAND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR BREACH OF THE WARRANTYIN SECTION 8(a).
12. Limitationof Liability.
(a) Exclusion of Certain Damages.
IN NO EVENT WILL SELLER OR ANY MANUFACTURER OF AIRCRAFTBE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, ORPUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES ORDIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO:
(i) NONCONFORMANCE OR DEFECT IN GOODS OR SERVICES OR;
(ii) ANY BREACH OF THESE TERMS.
THIS LIMITATION APPLIES REGARDLESS OF WHETHER OR NOT THEPOSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULDHAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLETHEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, ANDNOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIALPURPOSE.
(b) Cap on Liability.
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUTOF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OFCONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE TOTALAMOUNTS PAID TO SELLER FOR THE GOODS SOLD OR SERVICES PERFORMED UNDER THISAGREEMENT. Buyer agrees to indemnify and hold harmless Seller from allclaims by third parties which extend beyond the foregoing limitations ofSeller’s liability.
(c) Exceptions.
The limitation of liability set forth in Section 9(b) do notapply to:
(i) liability resulting from Seller’s gross negligence orwillful misconduct and
(ii) death or bodily injury resulting from Seller’s acts oromissions.
13. Compliancewith Law.
Buyer shall comply with all applicable laws, regulations andordinances and maintain in effect all licenses, permissions, authorizations,consents and permits that it needs to carry out its obligations under theAgreement. Buyer shall comply with all export and import laws of all countriesinvolved in the sale of the goods under the Agreement or any resale of thegoods by Buyer. Buyer assumes all responsibility for shipments of goodsrequiring any government import clearance. If any governmental authority imposesantidumping duties, countervailing duties, or any other penalties on the goods,Seller may, at its sole discretion, terminate the Agreement immediately uponnotice to Buyer.
14. Termination.
In addition to any other remedies available to Seller underthis Agreement or at law, Seller may terminate the Agreement with immediateeffect upon written notice to Buyer, if Buyer: (i) fails to make any paymentwhen due under this Agreement; (ii) fails to perform or comply with anyobligation under this Agreement, in whole or in part; or (iii) becomesinsolvent, files a petition for bankruptcy or commences or has commencedagainst it proceedings relating to bankruptcy, receivership, reorganization orassignment for the benefit of creditors.
15. IPOWNERSHIP
All intellectual property used in connection with theProducts or their manufacture is and shall remain the exclusive property ofSeller, regardless of whether such intellectual property is developed duringthe course of the order or other work for Buyer, and regardless of whetherBuyer provided funding for such development.
16. ConfidentialInformation.
All non-public, confidential or proprietary information ofSeller, including, but not limited to, specifications, samples, patterns,designs, plans, drawings, documents, data, business operations, customer lists,pricing, discounts or rebates, disclosed by Seller to Buyer in connection withthis Agreement, whether orally, in writing, electronically, or in any otherform, and whether or not marked or designated as “confidential,” is ConfidentialInformation. Buyer shall useConfidential Information solely for the use of performing the Agreement and shallnot disclose, reproduce, or otherwise use such information without Seller’sprior written consent. Upon Seller’s request, Buyer shall promptly return alldocuments and other materials received from Seller. Seller shall be entitled toinjunctive relief to prevent or remedy any unauthorized disclosure or use ofConfidential Information, in addition to any other remedies available at law orin equity. This Section does not apply to information that is: (a) in thepublic domain; (b) known to Buyer at the time of disclosure; or (c) obtained bySeller on a non-confidential basis from a third party who was not under anobligation of confidentiality.
17. ForceMajeure.
Seller shall not be liable to Buyer, nor be deemed to havedefaulted or breached the Agreement, for any failure or delay in fulfilling orperforming any obligation under the Agreement when and to the extent suchfailure or delay is caused by or results from acts or circumstances beyondSeller’s reasonable control including, without limitation, acts of God, flood,fire, earthquake, explosion, governmental actions, war, invasion or hostilities(whether war is declared or not), terrorist threats or acts, riot, or othercivil unrest, national emergency, revolution, insurrection, epidemic,lock-outs, strikes or other labor disputes (whether or not relating to eitherparty’s workforce), or restraints or delays affecting carriers or inability ordelay in obtaining supplies of adequate or suitable materials, materials ortelecommunication breakdown or power outage. Seller shall use commerciallyreasonable efforts to mitigate the effect of any Force Majeure Event. If, dueto any such circumstances, shortages should occur in Seller’s supply of anyspecific goods, Seller may allocate deliveries to its customers as itdetermines in its sole discretion.
18. Amendmentand Modification.
These Terms may only be amended or modified in a writingthat specifically states that it amends these Terms and is signed by eachparty.
19. Waiver.
No waiver by Seller of any of the provisions of theAgreement is effective unless explicitly set forth in writing and signed bySeller. No failure or delay by the Seller in exercising any rights, remedy,power or privilege under this Agreement operates or may be construed as awaiver thereof of that right or any other right. No single or partial exerciseof any right, remedy, power or privilege hereunder precludes any other orfurther exercise thereof or the exercise of any other right, remedy, power orprivilege under this Agreement.
20. Assignment.
Buyer shall not assign any of its rights or delegate any ofits obligations under the Agreement without Seller’s prior written consent. Anypurported assignment or delegation in violation hereof is null and void. Noassignment or delegation shall relieve Buyer of any of its obligations underthe Agreement.
21. Relationshipof the Parties.
The relationship between the parties is that of independentcontractors. Nothing contained in the Agreement shall be construed as creatingany agency, partnership, joint venture or other form of joint enterprise,employment or fiduciary relationship between the parties. Neither party hasauthority to act for, bind, or obligate the other in any manner, and nothing inthis Agreement grants such authority.
22. NoThird-Party Beneficiaries.
The Agreement is for the sole benefit of the parties andtheir respective successors and permitted assigns and nothing herein, expressor implied, is intended to or shall confer upon any other person or entity anylegal or equitable right, benefit or remedy of any nature whatsoever under orby reason of these Terms.
23. GoverningLaw.
All matters arising out of or relating to the Agreement aregoverned by and construed in accordance with the laws of the State of Delaware withoutgiving effect to any choice or conflict of law provision or rule (whether of Delawareor any other jurisdiction) that would cause the application of the laws of anyjurisdiction other than those of Delaware. The United Nations Convention on theInternational Sale of Goods does not apply to any matter arising out of orrelating to the Agreement.
Any suit, action or proceeding arising out of or relating tothe Agreement shall be instituted in the federal courts of the United States orthe courts of Delaware and each party irrevocably submits to the exclusivejurisdiction of such courts in any such suit, action or proceeding.
24. Notices.
Each notice, request, consent, claim, demand, waiver andother communication hereunder (each, a “Notice”) must be in writing andaddressed to the parties at the addresses set forth on the face of the order,quotation or confirmation of sale accompanying these Terms or to such otheraddress that the receiving party may designate in writing. All Notices must bedelivered by personal delivery, nationally recognized overnight courier (withall fees pre-paid), facsimile (with confirmation of transmission) or certifiedor registered mail (in each case, return receipt requested, postage prepaid).Except as otherwise provided in the Agreement, a Notice is effective only (a)upon receipt of the receiving party, and (b) if the party giving the Notice hascomplied with the requirements of this Section.
25. Severability.
If any term or provision of the Agreement is held to beinvalid, illegal or unenforceable in any jurisdiction, that term or provisionshall be ineffective only to the extent of such invalidity, illegality, orunenforceability in that jurisdiction. Such determination shall notaffect the validity or enforceability of the remaining provisions of thisAgreement, nor shall it invalidate or render unenforceable that term orprovision in any other jurisdiction.
26. Survival.
Any provision of this Agreement that by its nature shouldsurvive termination or expiration shall remain in full force and effect,including without limitation the following: Insurance, Compliance with Law,Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
FORM 479 Rev 06
AVIONICINSTRUMENTS LLC STANDARD TERMS AND CONDITIONS OF SALE
1. Applicability.
These terms and conditions (“Terms”) are the only terms thatgovern the sale of goods or performance of services by Avionic Instruments LLC(“Seller”) to or on behalf of the buyer (“Buyer”). Notwithstanding anythingherein to the contrary, if a contract signed by both parties exists coveringthe sale of goods or performance of services covered hereby, the terms andconditions of that contract will prevail to the extent inconsistent with theseTerms. Any quotation or confirmation of order accompanying these Terms, or intowhich these Terms are incorporated by reference (collectively, the“Agreement”), comprises the entire agreement between the parties and supersedesall prior or contemporaneous understandings, representations, warranties, andcommunications, written or oral. These Terms prevail over any of Buyer’sgeneral terms and conditions of purchase regardless of whether or when Buyersubmitted its order or such terms. Fulfillment of Buyer’s order does notconstitute acceptance of Buyer’s terms and conditions and does not serve tomodify or amend these Terms. All Products are delivered in accordance withSeller’s specification and quality management system requirements. Fulfillmentof Buyer’s order does not constitute acceptance of Buyer’s terms and conditionsand does not serve to modify or amend these Terms. Under no circumstances maythe Buyer cancel any order within 90 days of the agreed delivery date. Sellermay, in its sole discretion, assess applicable cancellation, rescheduling, orexpedite fees in connection with any such cancellation or modification request.
2. Deliveryand Shipping Terms.
Goods or services will be delivered or performed within leadtime after receipt of Buyer’s order. Seller is not liable for any delays, lossor damage in transit. Unless otherwise agreed in writing, Seller shall delivergoods FCA (Incoterms 2020) Seller’s facility (the “FCA Point”) using Seller’sstandard methods for packaging. Buyer shall take delivery of the goods promptlyafter receiving notice that the goods have been delivered to the FCA Point, atwhich point title and risk of loss shall pass to Buyer. Buyer shall beresponsible for loading, if applicable. Seller may, in its sole discretion,without liability or penalty, make partial shipments of goods to Buyer. Eachshipment will constitute a separate sale and Buyer shall pay for goods shipped,whether such shipment is in whole or partial fulfillment of Buyer’s order.
If for any reason Buyer fails to accept delivery of goods onthe delivery date or if Seller is unable to deliver goods on the designateddelivery date because Buyer has not provided appropriate instructions,documents, licenses or authorizations: (i) risk of loss to the goods shall passto Buyer; (ii) the goods shall be deemed to have been delivered; and (iii)Seller, at its option, may store the goods until Buyer picks them up and Buyershall be liable for all related costs and expenses (including, withoutlimitation, storage and insurance).
The Seller shall not be liable for, nor shall the Buyerimpose, any monetary claims, penalties, chargebacks, or deductions related tolate delivery of the Products, unless such terms have been expressly agreed toin writing by the Seller prior to the delivery date. No implied or unilaterallate-delivery penalties shall apply.
3. MinimumOrder and Quantity
Seller will not accept an order of less than $2,500 in valueexclusive of transportation charges. The minimum billing will be $350 for eachline item ordered. If Seller delivers to Buyer a quantity of goods differentthan the quantity set forth in the Agreement, Buyer may not object to or rejectthe goods or any portion of them by reason of the surplus or shortfall andshall pay for such goods the price set forth in the Agreement.
4. Titleand Risk of Loss.
Title to and risk of loss of the Goods shall pass to Buyerupon delivery of the Goods at the FCA Point. As security for Buyer’s obligationto pay the Price, Buyer hereby grants to Seller a purchase money securityinterest in all of Buyer’s right, title, and interest in and to the Goods,wherever located, whether now existing or hereafter arising or acquired,together with all accessions, replacements, modifications, and all proceedsthereof (including, without limitation, insurance proceeds)
5. Inspectionand Rejection of Nonconforming Goods.
(a) Buyer shall inspect the goods within five days ofreceipt (“Inspection Period”). Buyer will be deemed to have accepted the goodsunless it notifies Seller in writing of any Nonconforming Goods during theInspection Period and furnishes documentation reasonably required by Seller.“Nonconforming Goods” means only: (i) goods shipped are different thanidentified in Buyer’s order; or (ii) the goods’ label or packaging incorrectlyidentifies its contents.
(b) If Buyer timely notifies Seller of any NonconformingGoods, Seller shall, in its sole discretion, (i) replace such NonconformingGoods with conforming goods or (ii) credit or refund the Price forNonconforming Goods, together with any reasonable shipping and handlingexpenses incurred by Buyer in connection therewith. Buyer shall ship, at itsexpense and risk of loss, the Nonconforming Goods to Seller’s facility. IfSeller exercises its option to replace Nonconforming Goods, Seller shall, afterreceiving Nonconforming Goods from Buyer, ship to Buyer the replaced goods tothe FCA Point.
(c) The remedies set forth in Section 5(b) are Buyer’sexclusive remedies for the delivery of Nonconforming Goods. Except as providedin Section 5(b), Buyer has no right to return goods purchased under theAgreement.
(d) The Seller shall not be subject to, nor shall the Buyerimpose, any monetary deductions, offsets, penalties, or chargebacks arisingfrom the Buyer’s inability to receive, inspect, or accept the Products due tothe Buyer’s own quality assurance procedures, inspection processes, internaldelays, or logistics operations. Any delays or failures in receipt attributableto the Buyer’s processes shall not affect the Seller’s right to full payment asspecified in this Agreement.
6. Changes.
Seller may revise these Terms and Conditions from time totime. Any revised versions will be posted at http://www.avionicinstruments.com.Revisions will become effective upon posting unless otherwise stated. Buyer isresponsible for reviewing the Terms and Conditions periodically to stayinformed of any updates. Continued placement of orders after the effective dateof a revision constitutes Buyer’s acceptance of the revised Terms andConditions.
7. Price.
Buyer shall purchase the goods or services from Seller atthe prices (the “Price”) set forth in Seller’s quoted price or published pricelist in force as of the date that Seller accepts Buyer’s order or as otherwiseagreed in writing by the parties. Seller’s price list is subject to change atany time. All Prices are exclusive of sales, use and excise taxes and any othersimilar taxes, duties and charges of any kind imposed by a governmental entityon amounts payable by Buyer. Buyer is responsible for all such charges, costsand taxes, but Buyer is not responsible for taxes imposed on or with respect toSeller’s income, revenues, receipts, personnel or real or personal property orother assets.
8. PaymentTerms.
Unless the parties otherwise agree, Buyer shall pay allinvoiced amounts to Seller net 30 days from the date of Seller’s invoice. Theextension of credit to Buyer shall be subject to change by Seller at any time.Unless the parties otherwise agree, Buyer shall make all payments by check, inU.S. dollars. Buyer shall pay interest on late payments at the lesser of 1.5%per month or the highest rate permissible under applicable law, calculateddaily and compounded monthly from the date due until paid in full. Buyer shallreimburse Seller for costs incurred in collecting late payments, including,without limitation, reasonable attorneys’ fees. In addition to all otherremedies available under these Terms or at law (which Seller does not waive bythe exercise of any rights hereunder), Seller may, without liability, suspendor terminate the performance or delivery of any goods or services if Buyerfails to pay any undisputed amounts when due hereunder. Buyer shall notwithhold payment of any amounts due by reason of any set-off of a claim ordispute with Seller, whether relating to Seller’s breach, bankruptcy orotherwise to the maximum extent permitted by law.
9. Packaging
Prices include Products having standard commercial packingonly. Where special packing is required, contact Seller. Special packing may besubject to additional costs.
10. ProductNotices
Buyer shall provide all Seller-supplied product notices,warnings, instructions, recommendations, and similar materials to all users ofthe Product, including Buyer’s employees.
11. Warranty;Exclusive Remedy.
(a) Limited Warranty.
Seller warrants to Buyer that for a period of one (1) yearfrom the date of invoice of the Goods or performance of Services (“WarrantyPeriod”), the Goods and Services will (i) conform in all material respects toSeller’s published specifications applicable to the Goods or Services as of thedate of manufacture, and (ii) be free from material defects in materials andworkmanship.
(b) Disclaimer of Other Warranties.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS ORIMPLIED, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER SET FORTH IN THEAGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR ALL OTHER WARRANTIES,OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANYNONCONFORMANCE OR DEFECT IN THE GOODS OR SERVICES PROVIDED UNDER THE AGREEMENT,INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY ORFITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALINGOR USAGE OF TRADE, AND ANY OBLIGATION OR LIABILITY ARISING FROM NEGLIGENCE,STRICT LIABILITY, OR TORT; ANY MANUFACTURER OF AIRCRAFT INCORPORATING THE GOODSOR SERVICES; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS ORDAMAGE TO ANY AIRCRAFT.
(c) Third Party Products.
Products manufactured by a third party (“Third PartyProduct”) may constitute, contain, be contained in, incorporated into, attachedto or packaged together with, the goods. Third Party Products are not coveredby the warranty in Section 8(a), and for the avoidance of doubt, SELLERMAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT.
(d) Warranty Claims.
Seller is not liable for breach of the warranty set forth inSection 8(a) unless:
(i) Buyer gives written notice of the alleged defect, describingthe defect in reasonable detail, within the Warranty Period and within ten (15)days after Buyer discovers or should have discovered the defect;
(ii) Buyer, if requested, returns them to Seller’s facility,F.O.B. Avenel, NJ, U.S.A., at Seller’s expense for such examination, withinthirty (30) days after such written notice;
(iii) Seller is given a reasonable opportunity to examinethe Goods or Services; and
(iv) Seller reasonably verifies (in its sole discretion)Buyer’s claim that the goods or services are defective and have not beensubject to accident, abuse or misuse, and have been operated and maintained inaccordance with the manufacturer’s recommendations and specifications.
(e) Exclusions.
Seller is not liable for breach of the warranty set forth inSection 8(a): (i) if Buyer continues to use the Goods or Services after givingnotice under Section 8(d); (ii) if the defect arises due to failure to followSeller’s instructions as to storage, installation, use or maintenance of thegoods; (iii) if the goods are altered or repaired by anyone other than Sellerwithout Seller’s prior written consent; or (iv) for defects caused bynegligence, abuse or misuse of the goods, corrosion, fire, heat or normal wearand tear; or (v) caused by other excluded or improper conditions. Theseexclusions are without limitation.
(f) Sole Remedies.
Subject to Sections 8(d) and (e), with respect to any suchdefective goods or services during the Warranty Period, Seller shall, in itssole discretion, either: (i) repair or replace such goods (or the defectivepart) or reperform the services or (ii) credit or refund the price of suchgoods or services at the pro rata Price but, if Seller requests, Buyer shall,at Seller’s expense, return such goods, or services if applicable, to Seller. RepairedProducts will be warranted for the remainder of the original warranty period orfor three (3) months from the date the repaired goods are reshipped to Buyer,whichever is longer.
(g) Exclusive Remedy.
THE REMEDIES SET FORTH IN SECTION 8(f) ARE BUYER’S SOLEAND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR BREACH OF THE WARRANTYIN SECTION 8(a).
12. Limitationof Liability.
(a) Exclusion of Certain Damages.
IN NO EVENT WILL SELLER OR ANY MANUFACTURER OF AIRCRAFTBE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, ORPUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES ORDIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO:
(i) NONCONFORMANCE OR DEFECT IN GOODS OR SERVICES OR;
(ii) ANY BREACH OF THESE TERMS.
THIS LIMITATION APPLIES REGARDLESS OF WHETHER OR NOT THEPOSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULDHAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLETHEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, ANDNOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIALPURPOSE.
(b) Cap on Liability.
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUTOF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OFCONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE TOTALAMOUNTS PAID TO SELLER FOR THE GOODS SOLD OR SERVICES PERFORMED UNDER THISAGREEMENT. Buyer agrees to indemnify and hold harmless Seller from allclaims by third parties which extend beyond the foregoing limitations ofSeller’s liability.
(c) Exceptions.
The limitation of liability set forth in Section 9(b) do notapply to:
(i) liability resulting from Seller’s gross negligence orwillful misconduct and
(ii) death or bodily injury resulting from Seller’s acts oromissions.
13. Compliancewith Law.
Buyer shall comply with all applicable laws, regulations andordinances and maintain in effect all licenses, permissions, authorizations,consents and permits that it needs to carry out its obligations under theAgreement. Buyer shall comply with all export and import laws of all countriesinvolved in the sale of the goods under the Agreement or any resale of thegoods by Buyer. Buyer assumes all responsibility for shipments of goodsrequiring any government import clearance. If any governmental authority imposesantidumping duties, countervailing duties, or any other penalties on the goods,Seller may, at its sole discretion, terminate the Agreement immediately uponnotice to Buyer.
14. Termination.
In addition to any other remedies available to Seller underthis Agreement or at law, Seller may terminate the Agreement with immediateeffect upon written notice to Buyer, if Buyer: (i) fails to make any paymentwhen due under this Agreement; (ii) fails to perform or comply with anyobligation under this Agreement, in whole or in part; or (iii) becomesinsolvent, files a petition for bankruptcy or commences or has commencedagainst it proceedings relating to bankruptcy, receivership, reorganization orassignment for the benefit of creditors.
15. IPOWNERSHIP
All intellectual property used in connection with theProducts or their manufacture is and shall remain the exclusive property ofSeller, regardless of whether such intellectual property is developed duringthe course of the order or other work for Buyer, and regardless of whetherBuyer provided funding for such development.
16. ConfidentialInformation.
All non-public, confidential or proprietary information ofSeller, including, but not limited to, specifications, samples, patterns,designs, plans, drawings, documents, data, business operations, customer lists,pricing, discounts or rebates, disclosed by Seller to Buyer in connection withthis Agreement, whether orally, in writing, electronically, or in any otherform, and whether or not marked or designated as “confidential,” is ConfidentialInformation. Buyer shall useConfidential Information solely for the use of performing the Agreement and shallnot disclose, reproduce, or otherwise use such information without Seller’sprior written consent. Upon Seller’s request, Buyer shall promptly return alldocuments and other materials received from Seller. Seller shall be entitled toinjunctive relief to prevent or remedy any unauthorized disclosure or use ofConfidential Information, in addition to any other remedies available at law orin equity. This Section does not apply to information that is: (a) in thepublic domain; (b) known to Buyer at the time of disclosure; or (c) obtained bySeller on a non-confidential basis from a third party who was not under anobligation of confidentiality.
17. ForceMajeure.
Seller shall not be liable to Buyer, nor be deemed to havedefaulted or breached the Agreement, for any failure or delay in fulfilling orperforming any obligation under the Agreement when and to the extent suchfailure or delay is caused by or results from acts or circumstances beyondSeller’s reasonable control including, without limitation, acts of God, flood,fire, earthquake, explosion, governmental actions, war, invasion or hostilities(whether war is declared or not), terrorist threats or acts, riot, or othercivil unrest, national emergency, revolution, insurrection, epidemic,lock-outs, strikes or other labor disputes (whether or not relating to eitherparty’s workforce), or restraints or delays affecting carriers or inability ordelay in obtaining supplies of adequate or suitable materials, materials ortelecommunication breakdown or power outage. Seller shall use commerciallyreasonable efforts to mitigate the effect of any Force Majeure Event. If, dueto any such circumstances, shortages should occur in Seller’s supply of anyspecific goods, Seller may allocate deliveries to its customers as itdetermines in its sole discretion.
18. Amendmentand Modification.
These Terms may only be amended or modified in a writingthat specifically states that it amends these Terms and is signed by eachparty.
19. Waiver.
No waiver by Seller of any of the provisions of theAgreement is effective unless explicitly set forth in writing and signed bySeller. No failure or delay by the Seller in exercising any rights, remedy,power or privilege under this Agreement operates or may be construed as awaiver thereof of that right or any other right. No single or partial exerciseof any right, remedy, power or privilege hereunder precludes any other orfurther exercise thereof or the exercise of any other right, remedy, power orprivilege under this Agreement.
20. Assignment.
Buyer shall not assign any of its rights or delegate any ofits obligations under the Agreement without Seller’s prior written consent. Anypurported assignment or delegation in violation hereof is null and void. Noassignment or delegation shall relieve Buyer of any of its obligations underthe Agreement.
21. Relationshipof the Parties.
The relationship between the parties is that of independentcontractors. Nothing contained in the Agreement shall be construed as creatingany agency, partnership, joint venture or other form of joint enterprise,employment or fiduciary relationship between the parties. Neither party hasauthority to act for, bind, or obligate the other in any manner, and nothing inthis Agreement grants such authority.
22. NoThird-Party Beneficiaries.
The Agreement is for the sole benefit of the parties andtheir respective successors and permitted assigns and nothing herein, expressor implied, is intended to or shall confer upon any other person or entity anylegal or equitable right, benefit or remedy of any nature whatsoever under orby reason of these Terms.
23. GoverningLaw.
All matters arising out of or relating to the Agreement aregoverned by and construed in accordance with the laws of the State of Delaware withoutgiving effect to any choice or conflict of law provision or rule (whether of Delawareor any other jurisdiction) that would cause the application of the laws of anyjurisdiction other than those of Delaware. The United Nations Convention on theInternational Sale of Goods does not apply to any matter arising out of orrelating to the Agreement.
Any suit, action or proceeding arising out of or relating tothe Agreement shall be instituted in the federal courts of the United States orthe courts of Delaware and each party irrevocably submits to the exclusivejurisdiction of such courts in any such suit, action or proceeding.
24. Notices.
Each notice, request, consent, claim, demand, waiver andother communication hereunder (each, a “Notice”) must be in writing andaddressed to the parties at the addresses set forth on the face of the order,quotation or confirmation of sale accompanying these Terms or to such otheraddress that the receiving party may designate in writing. All Notices must bedelivered by personal delivery, nationally recognized overnight courier (withall fees pre-paid), facsimile (with confirmation of transmission) or certifiedor registered mail (in each case, return receipt requested, postage prepaid).Except as otherwise provided in the Agreement, a Notice is effective only (a)upon receipt of the receiving party, and (b) if the party giving the Notice hascomplied with the requirements of this Section.
25. Severability.
If any term or provision of the Agreement is held to beinvalid, illegal or unenforceable in any jurisdiction, that term or provisionshall be ineffective only to the extent of such invalidity, illegality, orunenforceability in that jurisdiction. Such determination shall notaffect the validity or enforceability of the remaining provisions of thisAgreement, nor shall it invalidate or render unenforceable that term orprovision in any other jurisdiction.
26. Survival.
Any provision of this Agreement that by its nature shouldsurvive termination or expiration shall remain in full force and effect,including without limitation the following: Insurance, Compliance with Law,Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
FORM 479 Rev 06
