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1. Unless otherwise stated on an attachment hereto or specifically agreed to in writing by the Buyer of the products purchased (“the parts”) and an authorized officer of SPIRIT AVIATION SERVICES, INC.(“Seller”), the sale of the parts will be made under the following terms and conditions.
2. If the terms and conditions specified herein differ in any way from the terms and conditions of Buyer’s order, the terms and conditions specified herein shall be considered a counter-offer and shall not be effective as an acceptance of such order unless Buyer assents to the terms and conditions contained herein, which shall constitute the agreement between the parties. The failure of Buyer to object therein in writing within ten (10) days from the date of receipt hereof shall constitute assent thereto. No additional modifications of any of the terms and conditions hereof shall be effective unless made in writing and signed by both parties.
3. Delivery of parts shall be EXWORKS Sellers facility. Risk of loss shall pass to Buyer upon delivery of the parts to Buyer or a representative thereof. In case where no written instruction of shipping from Buyer exists, but carrier shall not be the agent of Seller, Seller shall not be responsible for delay or damage incurred in shipment to Buyer.
4. The full payment of the invoice amount is due and payable to Seller in US dollars within 30 Days from the date of the invoice, unless stated otherwise in the terms section on the reverse side of this Invoice. If payment is not received within the 30 Day period, Buyer agrees to pay Seller an additional fee of 1 1/2% equal to the interest per month. IT IS UNDERSTOOD THAT TITLE TO ALL PARTS AND MATERIALS LISTED ON THIS INVOICE REMAIN WITH SELLER UNTIL PAYMENT OF SAME HAS BEEN RECEIVED.
5. Unless otherwise stated, prices listed do not include duties or sales, use, excise, value added or similar taxes (excluding income taxes of Seller) payable as a result of Buyer's purchase or use of the parts. Buyer shall, in addition to paying specified prices, pay or reimburse Seller for any such duties or taxes.
6. Delivery shall be deemed to be complete upon receipt and inspection of goods by Purchaser, such inspection shall be made within 48 hours of receipt of goods. Goods may not be returned without Seller's prior authorization. Request for authorization must be made by Purchaser within 72 hours of receipt of goods. Goods authorized for return must be returned to Seller within 7 days of Seller's shipping date. Upon the return of goods pursuant to authorization Seller may at its option repair or replace the goods, refund the purchase price or issue credit. In the event the parts purchased are overhauled, repaired, serviceable or inspected , The said items shall be returned for warranty (if any) work, replacement only. Seller shall in no way be liable or responsible for incidental or consequential damages arising out of the shipment of non-conforming, defective and/or damaged goods. (If any tamper seals are removed or manipulated in any way the buyer has no claim or right for return.)
7. Goods may not be returned without prior consent of Seller Return Material Authorization (RMA), RMA # is needed for all returns. Rma number must be visible on the outside of the package or it will be refused by seller.Goods maynot be return if it is past the 30 days from the sale date or it will be refused by the seller. Returned goods may be subject to a charge of 30% of the sales price with a minimum fee of $250. In the event a part is returned, Buyer shall be responsible for any and all costs associated with all shipping, misc. charges. ALL RETURNS AND OR CLAIMS ARE DUE FROM BUYER WITHIN 14 DAYS OF SALE DATE.
8. Credit on AS REMOVED units and components. All units and components must be received as in the condition sent to customer in order to be returned for credit. If for any reason any marks, damage, unassembled, or broken tamper seals are noted on receiving inspection your credit/refund and any warranties you may have will be void. The unit/component will be returned to you at your (Buyers) cost. ALL CLAIMS MUST BE REC’D AT SPIRIT AVIATION SERVICES, INC.WITHIN 14 DAYS OF SALE DATE. If units are deemed BER (beyond economical repair) a repair cap must be agreed to in writing in order to be returned for credit. ALL BER REPORTS MUST BE MADE BY EITHER OEM OR AUTHORIZED OEM SUBCONTRACTOR ALL PRICES MUST BE BROKEN DOWN WITH PUBLISHED OEM PRICING. ALL SHOP REPORTS MUST ACCOMPANY UNIT. UNIT MUST BE APPROVED BY QA INORDER FOR CREDIT TO BE ISSUED. BEYOND ECONOMICAL REPAIR RATE IS CALCULATED AND MUST EXCEED 70% OF PUBLISHED OEM LIST ON THE UNITS AND OR COMPONENTS. ALL NON-CONFORMING MATERIAL MUST BE RETURNED IN THE CONDITION SENT OR IT WILL BE REJECTED
9. Subject to Section 8, Seller warrants to Buyer that each part delivered to Buyer hereunder will conform to its general description (excluding its condition code, i.e. new, new surplus, overhauled, serviceable, inspected, repaired, as removed) set forth on the reverse side hereof or in the attachment hereto and that to the best of Seller's knowledge based on the documentation for the part available to Seller, each such part (a) is U.S. type certified by a manufacturer holding a U.S. production certificate or license agreement with the prime manufacturer, (b) if used, was removed from a serviceable unit that had not been subjected to severe stress of heat (as in a major engine failure, accident or fire) and (c) at the time of its delivery or shipment will conform to the condition code indicated on the reverse side hereof or an attachment hereto. A Returned Material Authorization (RMA) number must be issued by Seller and accompany any returned part. Any replaced part shall become the property of Seller. EXCEPT AS SET FORTH HEREIN, THE PARTS ARE SOLD TO BUYER "AS IS". SELLER MAKES NO WARRANTY, AGREEMENT OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, CONDITION, VALUE OR UTILITY OF THE PARTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLER AND ITS DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATED ENTITIES (COLLECTIVELY, "RELATED PARTIES") SHALL HAVE NO LIABILITY IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE OR STRICT LIABILITY OF SELLER OR ANY RELATED PARTY) OR OTHERWISE FOR ANY LOSS, DAMAGE, EXPENSE OF INJURY RESULTING FROM OR ARISING OUT OF ANY DEFECT IN OR NON-CONFORMITY OF THE PARTS PURCHASED HEREUNDER.
10. IN NO EVENT SHALL SELLER OR ANY OF ITS RELATED PARTIES BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR LOST REVENUES OR PROFITS, LOSS OF USE OF THE PARTS OR ANY OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF ANY BREACH BY SELLER OR ITS RELATED PARTIES OF THIS AGREEMENT, OTHER OBLIGATIONS OR DUTIES RELATING TO THIS TRANSACTION OR BUYER'S ORDERING, USING, OWNING OR DISPOSING OF THE PARTS, EVEN IF SELLER OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF SELLER AND ITS RELATED PARTIES TO BUYER AND OTHERS IN CONTRACT TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE RESULTING FROM OR ARISING OUT OF ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR BUYER'S PURCHASE, USE AND DISPOSITION OF ANY ITEM OF THE PARTS SHALL UNDER NO CIRCUMSTANCE EXCEED THE PURCHASE PRICE PAID FOR THE ITEM BY BUYER. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR BUYER'S PURCHASE OF THE PARTS MAY BE BROUGHT AGAINST SELLER OR ANY OF ITS RELATED PARTIES MORE THAN 1YEAR AFTER THE CAUSE OF ACTION ACCRUES.
11. Indemnity. (a) To the fullest extent permitted by law, Buyer will indemnify, defend and hold harmless SPIRIT AVIATION SERVICES, INC. its parents, subsidiaries, affiliates, and each of their direct employees and agents from and against any and all claims, damages, losses, liabilities, judgments, costs, fines and expenses of any kind of nature whatsoever, including but not limited to interest, court costs and reasonable attorney’s fees, which in any way arise out of or result from this agreement or the use or handling of the Parts, including, but not limited to, the death of any person and damage to or destruction of any property, real or personal (Loss). This Section will apply regardless of whether any Loss arises out of or results from Negligence (whether active, passive or otherwise) of, or was caused in part by Seller, except to the extent a Loss results from the gross negligence or willful misconduct of directors, officers, employees or agents. In no event will Seller be liable for any special, indirect or consequential damages, including lost revenues or profits or damage to equipment, aircraft or facilities arising out of or in connection with this agreement or the use or handling of the Parts sold hereunder and Buyer’s obligation to Seller will extend to such liabilities regardless of the party asserting such liabilities. This Section will not be construed to negate, abridge or otherwise reduce an obligation of indemnity which would otherwise exist as to any party or person described in this Section. Buyer’s obligations under this Section will not be construed as a limitation of the amount or type of damages, compensation or benefits paid or payable by Buyer under Worker’s Compensation Acts, disability or other employee benefits laws or regulations. The indemnification obligations of this Section will survive termination or expiration of this agreement. Seller will notify Buyer of any claim made or suit brought within the scope of this Section and Buyer has the right to assume and conduct the defense or to effect any settlement, as Seller deems proper.
12. Intellectual infringement. Seller expressly disclaims and Buyer agrees that since Seller is not the manufacturer, Seller shall have no liability whatsoever with respect to patent infringement as well as for any alleged unfair competition resulting from similarity in design, trademark, or appearance of goods relating to the Parts furnished herein.
13. To secure full performance of Buyer's obligations hereunder, Seller retains and Buyer grants to Seller a purchase money security interest in the parts, including all accessions to and replacement and proceeds of the parts. If Buyer defaults in making payments or in its other obligations hereunder, Seller, in addition to its other rights and remedies provided in the California Commercial code and otherwise, may enforce its security interest and retake possession of the parts in accordance with applicable laws. It is agreed that 15 days shall constitute reasonable notice to Buyer with respect to the enforcement of such rights and remedies in the event such notice is required by applicable laws. Seller's security interest shall terminate upon full performance of Buyer's obligations hereunder.
14. This agreement and performance by all parties hereunder shall be construed in accordance with and governed by the laws of the State of California. Any action or proceeding to enforce any provisions relating to this agreement shall be brought in the courts of the County of Orange, State of California and Buyer and Seller hereby consent to the jurisdiction of such courts for any purposes of any action or proceeding. If any provision of this agreement shall be held by a court of competent jurisdiction to be unenforceable to any extent, that provision shall be enforced to the full extent permitted by law and the remaining provisions shall remain in full force and effect. If either party hereto brings an action to enforce the terms hereof or to declare rights hereunder, the prevailing party in such action shall be entitled to an award of reasonable costs of litigation, including attorney’s fees, in such amount as may be determined by the court having jurisdiction in such action.
15. This agreement shall be binding upon the parties and their respective successors and assigns. However, unless otherwise agreed to in writing by Seller, any assignment of this agreement or any rights or duties hereunder by Buyer shall be void. This agreement is not intended to confer rights against Seller to any person other than Buyer and its successors and assigns.
16. The express terms and conditions contained on the face and on the reverse side hereof and those set forth on any continuation sheets, contain the entire understanding of the parties with respect to the sale of the material. Any terms and conditions proposed in Buyer's Purchase Order which add to, vary from or conflict with the terms and conditions herein are hereby expressly objected to and may become effective only if accepted by Seller in writing. This agreement supersede all previous agreements, written or oral, between the parties hereto and may be modified only by the written mutual agreement of the parties.
17. Buyer agrees to obide and follow the law pretaining to EXPORT / ITAR Regulations, If you the ( buyer) is exporting goods , information out of the US to an overseas company of country you must obide by the export rules and regulations . diversion is contrary to US. Law. Be aware we do not conduct business with trade embargoed countries. For a current list please visit https://www.treasury.gov/resourcecenter/sanctions/programs/pages/programs.aspx