Avyon Parts, LLC
Standard Terms and Conditions of Purchase
These standard terms and conditions of purchase (these “Terms”) mean the terms and conditions between the buyer of the product, AvyonParts, LLC (ABuyer@), and the seller of the product (ASupplier@). No other terms or conditions, including any prior or subsequent
understanding, agreement, term, condition, or trade custom at variance with, or supplemental to these terms and conditions, shall apply, unless Buyer and Supplier expressly agree in writing.
Right of Access.
Buyer representatives shall be permitted access to the Supplier premises and records. This access is limited to assessment and verification of quality records and quality control processes related to product furnished to Buyer. The Supplier shall flow-down this Right of Access
requirement to all sub-tier suppliers, contractors, processors, shipping agents and providers that are involved in the supply chain of the product. The same right of access is extended to the customers of Buyer, and all regulatory authorities, such as the FAA, CAA, EASA, or other government authority.
Quality Management System (QMS).
Buyer reserves the right to review and approve Suppliers QMS. Suppliers should maintain a QMS compliant with ISO, SAE, FAA, CAA, EASA, ASA or equivalent industry accepted organizational standard. Preference will be given to Suppliers that maintain a QMS certified by
an industry recognized third party organization.
Notification Of Change.
Supplier shall notify Buyer in the event of: (1) any discontinuation, loss, denial, interruption, update or other change to the QMS; (2) any change in location of Supplier’s facility; (3) any change in Supplier’s quality process, or any other event, that might affect the conformity of
the product to its specifications; (4) any change in Supplier’s equity ownership, senior management or quality assurance leadership team; or (5) any actual or threatened investigation, audit, litigation, administrative proceeding or other adverse or disciplinary action taken by the FAA, CAA, EASA, or any other governmental authority.
All special processes required by the purchase order must be performed by suitably qualified personnel.
All products provided by Supplier shall be segregated into lots and each lot shall be clearly identified. The Supplier shall package each lot to ensure that no mixing of lots occurs at any time.
Certification and Traceability.
With each shipment, the Supplier shall provide a certificate of conformance stating that the products are in compliance with Buyer’s requirements and the product specifications. Certifications shall be in the English language, legible, and contain, where applicable, the
Buyer PO number, part number, quantity, lot/batch number, serial number, cure date, and expiration (shelf life) date. Any products supplied to Buyer must be fully traceable to the manufacture. The Supplier shall provide an original, or true copy, of the trace paperwork, which may include but is not limited to, FAA Form 8130-3, EASA Form 1, ATA-106, certificate of conformance, and shipping documents.
Shelf Life Product.
Unless otherwise specified by Buyer, shelf life limited products shall be delivered with at least 75% life remaining.
All products provided by Supplier shall not have been subjected to conditions of extreme stress, heat, or environment and shall not have been previously installed in a government or military aircraft.
Unless otherwise specified by Buyer, surplus, alternate, or substitute products are not allowed. If Buyer agrees to accept a surplus product, such product shall be in new, unused condition, and traceable to either, an FAA Part 121 or Part 129 approved airline or the original equipment
manufacturer (OEM). If Buyer agrees to accept an alternate or substitute product, the purchase order will be amended to match the product provided.
Supplier must notify Buyer of any non-conforming or counterfeit product, immediately on discovery, either prior to or after delivery to Buyer. Supplier shall have programs in place to help ensure that no counterfeit product is delivered to Buyer. A counterfeit product is a copy,
imitation, or substitute that is represented, identified, or marked as genuine, and/or altered by a source, without legal right, with intent to mislead, deceive, or defraud. This requirement shall be flowed down to all sub-tier suppliers.
Flow Down Requirements.
All of the specifications, requirements, terms and conditions applicable to a product, set forth in the purchase order and set forth herein shall be flowed down from Supplier to all sub-tier suppliers, contractors, processors, shipping agents and providers.
Supplier shall retain all quality and certification records for a minimum of 10 years, or in accordance with regulatory authorities, whichever is longer. All records shall be made available to Buyer upon request.
Packaging, Marking and Shipping.
Supplier shall pack, mark and ship all products in accordance with the requirements of these Terms and as necessary to be in compliance with all transportation regulations and good commercial practice for protection and shipment and shall secure the most advantageous
transportation service and rates consistent therewith. No separate or additional charge is payable by Buyer for containers, crating, boxing, bundling, dunnage, drayage or storage unless expressly and specifically stated in the purchase order. Any expense incurred by Buyer as a
result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Supplier. Any transportation charges paid by Supplier for which Supplier is entitled to reimbursement shall be shown on Supplier’s invoice as a separate line item with
the receipted freight bill attached to the invoice. For product classified as a dangerous or hazardous material by a transport regulatory authority, Supplier shall label the packaging according to the requirements of transport regulatory authority and include a copy of the Safety
Data Sheet (SDS) as published by the manufacturer. If because of Supplier’s failure to meet the delivery requirements of the purchase order, it becomes necessary to require shipment of any of the products covered by such purchase order by a method of transportation other
than the method originally specified by Buyer, Supplier shall reimburse Buyer any amount by which the cost of the method of transportation exceeds that originally specified. Supplier shall comply with all of Buyer’s routing and shipping instructions.
REACH (Registration, Evaluation, Authorization and Restriction of Chemicals).
Supplier shall ensure that each product supplied to Buyer contains less than 0.1% by weight of any Substance of Very High Concern (SVHC), as listed on the Candidate List of Substances (CLS). In the event any product to be supplied to Buyer will contain a greater amount by weight of any SVHC, Supplier shall first notify Buyer in writing of the SVHCs in such product that will exceed such threshold.
Acceptance And Acknowledgment.
Any performance on the purchase order is deemed an acceptance, without exception, of the terms and conditions set forth on the purchase order and these Terms.
Buyer may at any time make changes within the general scope of the purchase order and Supplier shall comply therewith. Buyer may cancel the purchase order or reduce the quantity of any product to be purchased thereunder at any time prior the date that Supplier ships such
product(s) and under no circumstances shall Buyer be liable or responsible for any cancellation fee, restocking fee or any similar fee or charge, unless expressly agreed to in writing by Buyer. Except as expressly provided for elsewhere, Buyer and Supplier agree that there
shall be no adjustment in unit price or delivery schedule without a written change to the purchase order.
Supplier will send a separate invoice and shipping notice for each shipment. Each invoice must show Buyer’s purchase order number, part number(s), unit price(s), and quantities shipped. Delays in receiving invoices, errors or omissions on invoices, or lack of supporting
documentation required by the terms of the purchase order or these Terms will be cause for withholding settlement without losing discount privilege.
Order Of Precedence.
In the event of conflicting contractual requirements, the order of precedence is Buyer’s purchase order, Buyer’s specifications, these Terms.
Inspection and Acceptance.
All products are subject to (i) inspection during manufacture, (ii) inspection prior to shipment and (iii) final inspection, testing and acceptance at destination, notwithstanding the F.O.B. point or any payment or prior inspection at source. Risk of loss or damage to products shall remain with Supplier until delivery to Buyer at destination. Supplier shall obtain and pay for products in
transit insurance and shall be required to recover from the carrier and/or insurer in the event of incorrect delivery, loss or damage. Supplier shall furnish to Buyer, if requested, all information and data as may be reasonably requested by Buyer in order to perform inspection and
acceptance. Inspection and acceptance of any products by Buyer shall not be deemed to alter or affect the obligations of Supplier or the rights of Buyer and its customers under warranties herein or as may be provided by law. Buyer’s failure to inspect any of the products
hereunder shall neither relieve Supplier from responsibility for such products if they’re not delivered in accordance with the product specifications, the requirements of the purchase order, or these Terms. Any tender of products which is nonconforming as to quality, quantity
or Supplier’s covenant to meet the delivery schedule shall constitute a breach of the purchase order and Buyer shall have the absolute right to reject such products. Buyer shall notify Supplier as to such rejected products and Buyer shall have all such remedies as provided by law
and these Terms, including, but not limited to (A) hold such rejected products or return same to Supplier at Buyer’s election and at Supplier’s risk and expense, (B) replace or correct Supplier’s products and charge to Supplier the cost occasioned to Buyer thereby or require the
delivery or replacement of such products at an equitable adjustment in price, if Supplier fails to remove promptly such rejected products or unless Supplier corrects or replaces the defective products within the time required by the delivery schedule, and (C) recover by offset or
otherwise any and all damages, expenses or costs caused to or experienced by Buyer as a result of such rejection or which may result from a series of rejections. If rejected products are later repaired or corrected in any manner and are being returned to Buyer, Supplier shall
indicate on an appropriate tag affixed to such products that the products were previously rejected by Buyer and describe the specific defect(s) which were repaired or corrected. Notwithstanding the F.O.B. point stated in the purchase order, Supplier shall bear and pay the additional expenses of transportation incurred for the return of rejected, defective products and the re-shipment of repaired or replacement products.
Supplier warrants that all products delivered under the purchase order shall conform to the requirements of such purchase order (including all applicable descriptions, performance criteria, specifications and drawings), shall be free from defects in material and workmanship, and shall, to the extent not manufactured pursuant to detailed designs furnished by Buyer, be free from defects in design and fit for their intended purposes. Buyer’s approval of designs furnished by Supplier shall not relieve Supplier of its obligations under this warranty. Supplier’s
warranties shall be enforceable by Buyer’s customers and any subsequent owner or operator of the products, as well as by Buyer. Without prejudice to any other remedy that Buyer may have, Supplier shall be responsible for, and bear the expense of, any necessary correction due to faulty workmanship or materials, or due to faulty design unless such design was supplied by Buyer. Supplier further warrants that; all aircraft materials, articles, and/or products will be furnished in compliance with all applicable Federal Aviation Association regulations; all inspection records will be made available to Buyer upon request; all products supplied or services performed shall be in accordance with all applicable federal, state, and local laws including environmental protection and occupational safety and health; they
are aware of their contribution to product or service conformity; they are aware of their contribution to product safety; they are aware of the importance of ethical behavior within their organization; they have appointed competent persons with the required qualification; all production and inspection/verification operations have been completed as planned and are available for review; there is a provision for the prevention, detection, and removal of foreign objects; and they are aware of the consequences of obsolescence.
Time is of the essence in all deliveries called for by the purchase order. If at any time it appears to Supplier that any delivery schedule cannot be met, Supplier shall notify Buyer as soon as possible as to (i) the cause thereof, (ii) the action being taken to remove such cause
or causes, and (iii) when on schedule status shall be achieved. Supplier shall, at Supplier’s expense, take all reasonable action necessary, with or without the request of Buyer, to meet the required delivery schedules or to recover to the maximum extent possible any delay in such
delivery schedules. Such reasonable action by Supplier shall include, but shall not be limited to, shipments via expedited routing and carrier at Supplier’s expense. Any action taken by Supplier with respect to the foregoing obligations and any assistance provided by Buyer to
enable Supplier to achieve its schedule shall not excuse Supplier’s performance to the delivery schedule called for by the purchase order and Buyer shall retains all rights it may otherwise have in these Terms or available at law.
Supplier shall indemnify Buyer against all losses, costs and damages Buyer may suffer on account of claims of injury to persons, including death, or damage to property which may result in any way from any act or omission, or from any defective products, of Supplier or of its
agents, employees, subcontractors or vendors. Supplier shall maintain Workers’ Compensation and Occupational Disease Insurance, Public Liability, Property Damage, Products Liability, Employee’s Liability and Compensation Insurance and Motor Vehicle Liability (Personal
injury and Property Damage) in reasonable amounts to protect Supplier and Buyer from the aforesaid risks. Supplier shall indemnify and hold harmless Buyer against any and all claims for U.S. or foreign patent, copyright, trademark, or other proprietary rights infringement.
Supplier shall defend, at Supplier’s expense, any and all infringement suits or actions of law or in equity brought against Buyer and shall satisfy all judgments entered therein.
Any applicable excise, sales, use or similar taxes, whether federal, state or local, shall be paid by Supplier.
Buyer Specifications, Designs, Data and Information.
Any specifications, designs, drawings, information, tools, computer software, computer data and/or technical data furnished by Buyer to Supplier in connection with the purchase order to enable Supplier to manufacture products pursuant to the purchase order are the sole
property of Buyer and Supplier shall not use the same except for the performance of the purchase order. Supplier shall not disseminate, disclose, use, communicate or otherwise appropriate, either directly or indirectly, any such information except as required for performance of the purchase order and shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of Buyer. Upon completion or termination of the purchase order, Supplier shall promptly deliver to Buyer all of such information and any copies of such information in its possession. Unless otherwise specified, Supplier shall be responsible for any loss, destruction or damage to any property furnished by Buyer to Supplier for performance of the purchase order, including any property owned by third parties. Supplier shall be responsible for returning any such property in the condition in which it was received by Supplier, reasonable wear and tear excepted.
If the purchase order requires the inspection and acceptance of certified first article samples, no production of products beyond first article samples are authorized until the inspection and acceptance of first article samples occurs. In the event of a termination of the
purchase order for the convenience of Buyer prior to the acceptance of first article samples, Buyer shall not be responsible for any costs incurred for products to be delivered after first article samples.
Supplier warrants that all material incorporated into the products shall be new. No used or reconditioned material may be incorporated into the products without the prior written consent of Buyer.
Neither the purchase order nor any duties or interest herein shall be delegated by Supplier unless the written consent of Buyer has been previously obtained, except that Supplier shall have the right to assign or delegate the purchase order to any successor in
interest of Supplier by way of merger or consolidation or acquisition of all or substantially all of the assets and business of Supplier, provided that such successor expressly assumes all obligations, duties and liabilities of Supplier and Supplier remains liable to Buyer for the
performance and observance of all such obligations, duties and liabilities. Buyer may assign the purchase order in whole or in part.
Supplier at all times shall comply with all applicable federal, state, municipal and local laws, orders and regulations.
Whenever any actual or potential labor dispute becomes known to Supplier, Supplier shall provide Buyer with immediate written notice thereof.
Variation in Quantity.
The purchase order permits no variation in quantity of the products ordered.
Failure of Buyer in one (1) or more instances to insist on performance of any of the provisions of the purchase order or these Terms shall in no way be construed to be a waiver of any such provisions in the future.
Buyer may cancel in whole, or in part, the purchase order, if Supplier fails to make delivery of the product or perform the services within the purchase order time specified or any agreed upon extension thereof, or, if Supplier fails to perform any of the other provisions of the purchase order or fails to make progress so as to endanger performance of the purchase order in accordance with its terms. In the event Buyer cancels the purchase order, in whole or part, under provisions of this clause, Buyer may procure upon such terms and in
such a manner as Buyer may deem appropriate, product or services similar to those so canceled, and Supplier shall be liable to Buyer for any extra costs for such similar product or services provided that Supplier shall continue performance of the purchase order to the extent not canceled under the provisions of this clause. Excluding any failure or default on the part of any subcontractor to Supplier, Supplier shall not be liable for any excess costs if (i) the failure
to perform the purchase order arises from causes beyond the control and without the fault or negligence of the Supplier and (ii) Supplier immediately notifies Buyer of such failure and the cause thereof in reasonable detail, along with a delay notice as described under the section
titled, “Delivery,” above. Such causes may include, but are not restricted to (collectively, “Force Majeure Events”), acts of God or the public enemy, acts of government in either its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, strikes,
freight embargoes, and unusually severe weather. Buyer shall not be liable for any failure of its performance or excess costs as a result of any Force Majeure Event(s). In every case, the failure to perform by Supplier or Buyer due to a Force Majeure Event must be beyond the
control and without the fault or negligence of Supplier or Buyer, as applicable. If the failure to perform is caused by the failure or default of a subcontractor and if such default arises out of causes beyond the control of both Supplier and subcontractor, and without the fault or
negligence of either of them, Supplier shall not be liable for any excess costs for failure to perform unless the product or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit Supplier to meet the required delivery schedule.
If the purchase order is canceled under provisions of this clause, Buyer, in addition to any other rights provided in this clause, may require Supplier to transfer title and deliver to Buyer, in the manner and to the extent directed by Buyer, any completed product, and such partially
completed products, materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights, as Supplier has specifically produced, or specifically acquired, for the performance of such part of the purchase order as has been canceled, and Supplier shall upon
direction of Buyer, protect and preserve all property in the possession of Supplier in which Buyer has an interest. Payment for completed products delivered to and accepted by Buyer shall be at the purchase order price. Payment for partially completed products, materials,
parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights, delivered to and accepted by Buyer, and for protection and preservation of property, shall be in an amount agreed upon by Supplier and Buyer. If, after notice of cancellation of the purchase order under the provisions of this clause, it is determined for any reason that Supplier was not
in default under the provisions of this clause, the rights and obligations of the parties shall be the same as if the notice of cancellation had not been issued. The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under the purchase order. The performance of work under the Purchase order may be terminated in whole, or from time to time in part, by Buyer, for its convenience.
This agreement shall be deemed to have been made in the State of Florida, U.S.A. and shall be interpreted in accordance with the law of the State of Florida without regard to conflict of law principles. Supplier consents to the exclusive jurisdiction of the state and federal courts of
the State of Florida, U.S.A., for determination of any claim or controversy between the parties and arising out of or relating to these terms and conditions of purchase. In the event that Buyer shall engage an attorney or commence an action against Supplier arising out of facts and
circumstances related to these terms and conditions of purchase including, but not limited to, Supplier’s breach of any of its obligations hereunder, Buyer shall be entitled to recover its reasonable attorney's fees, costs, and other disbursements incurred in connection therewith.
TERMS AND CONDITIONS
FOR THE SALE OF PRODUCTS AND SERVICES
(a) These terms and conditions of sale (these "Terms") are the only terms which govern the
sale of products ("Products") and services ("Services") by AVYON PARTS, LLC, a Florida limited liability
company ("Seller"), to the buyer named on the purchase order that was accepted in accordance with these
(b) The email or other written confirmation of sale and/or invoice (the "Sales Confirmation")
and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and
supersede all prior or contemporaneous understandings, agreements, negotiations, representations and
warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general
terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Seller shall have no obligation whatsoever to accept any purchase order submitted by Buyer, regardless of whether Seller provided a specific quotation to Buyer in advance of receipt of Buyer’s purchase order. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, Seller may, from
time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
2. Delivery of Products and Performance of Services.
(a) The Products will be delivered within a reasonable time after the receipt of Buyer's
purchase order, subject to availability of finished Products. Seller shall not be liable for any delays, loss, or
damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to its
shipping facilities (the "Delivery Point") and Products shall be delivered Ex Works (Incoterms 2020) as
provided in Section 5. Buyer shall take delivery of the Products within 3 days of Seller's written notice that
the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and
provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point and will
unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped
whether such shipment is in whole or partial fulfillment of Buyer's purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed
pursuant to Seller's notice that the Products have been delivered at the Delivery Point, or if Seller is unable
to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate
instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) Seller shall use reasonable efforts to meet any performance dates to render the Services
specified in the Sales Confirmation, and any such dates shall be estimates only.
(f) With respect to the Services, Buyer shall (i) cooperate with Seller in all matters as may
reasonably be requested by Seller relating to its performance of the Services; (ii) respond promptly to any
Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably
necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide
such customer or supplier materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer or supplier materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
(a) The quantity of any installment of Products as recorded by Seller on dispatch from Seller's
place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can
provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Products (even if caused by Seller's
negligence) unless Buyer gives written notice to Seller of the non-delivery within 10 days of the date when
the Products would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Products shall be limited to replacing the
Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual
(d) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer's
exclusive remedies for any non-delivery of Products.
4. Quantity. If Seller delivers to Buyer a quantity of Products of up to 10% more or less than the
quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Sales Confirmation adjusted pro rata.
5. Shipping Terms. All deliveries of Products shall be made Ex Works (Incoterms 2020), unless
otherwise agreed in writing with an explicit reference to the applicable Sales Confirmation. Buyer shall be responsible for selecting and paying its carrier; provided, however, if Seller agrees in writing with an explicit reference to the applicable Sales Confirmation to pay Buyer’s carrier, Buyer shall promptly pay Seller for all costs incurred related to such shipment, including carrier costs and Seller’s reasonable shipping and handling charges.
6. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the
Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
7. Buyer's Acts or Omissions. If Seller's performance of its obligations under this Agreement is
prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
8. Inspection and Rejection of Nonconforming Products.
(a) Buyer shall inspect the Products within 10 days of receipt ("Inspection Period"). Buyer
will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming
Products during the Inspection Period and furnishes such written evidence or other documentation as
reasonably requested by Seller. "Nonconforming Products" means only the following: (i) a product shipped
is different than identified in Buyer's purchase order; or (ii) a product's label or packaging incorrectly
identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole
discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the
Price for such Nonconforming Products, together with any reasonable shipping and handling expenses
incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the
Nonconforming Products to any facility designated by Seller in writing. If Seller exercises its option to
replace Nonconforming Products, Seller shall, after receiving Buyer's shipment of Nonconforming Products,
ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer's
exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 8(b), all
sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
(a) Buyer shall purchase the Products and Services from Seller at the prices (the "Prices")
prevailing on the date that Seller accepts Buyer's purchase order. All the Prices are subject to change without notice.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes,
duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer.
Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.
10. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's
invoice. Buyer shall make all payments hereunder by certified check, wire transfer, electronic check or ACH
transfer to an account designated by Seller in writing and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or
the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall
reimburse Seller for all costs incurred in collecting any late payments, including, without limitation,
attorneys' fees and court costs at the trial level and all levels of appeal. In addition to all other remedies
available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder
and all of which shall be cumulative), Seller shall be entitled to suspend the delivery of any Products or
performance of any Services and stop Products in transit if Buyer fails to pay any amounts when due
hereunder. All agreements between Buyer and Seller, whether now existing or whether hereafter arising and
whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever shall the amount of interest paid or agreed to be paid to Seller hereunder exceed the maximum amount permissible under applicable law. If, from any circumstances whatsoever, fulfillment of any provision hereof or of any such other document, at the time performance of such provisions shall be due, shall involve transcending the limit of validity prescribed by law, then ipso facto the obligation to be fulfilled shall be reduced to the limit of such validity. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between the parties.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any setoff
of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
11. Limited Warranty.
(a) Seller warrants to Buyer that for a period equal to the lesser of (i) 1-year from the date of
shipment of the Products or (ii) 1,000 hours from the first use of the Products (as applicable, the "Warranty
Period"), that such Products will materially conform to all applicable specifications and drawings as of the
date of delivery and will be free from defects in material and workmanship. If a Good is subject to regulation
by the U.S. Federal Aviation Administration (“FAA”), Seller warrants that such Good will be manufactured
within an FAA approved quality system.
(b) Seller warrants to Buyer that it shall perform the Services using personnel of required skill,
experience, and qualifications and in a professional and workmanlike manner in accordance with generally
recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. For any Services performed on parts or components subject to regulation by the FAA, Seller warrants that such Services will comply with applicable manufacturer and FAA specifications and any applicable airworthiness regulations and directives.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11(a) AND (a),
SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR
SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT
OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR
IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE, OR OTHERWISE. BUYER ASSUMES ALL RISKS AND LIABILITIES RESULTING
FROM THE USE OF ANY GOOD OR SERVICE DELIVERED OR PROVIDED HEREUNDER INITS OPERATIONS, UPON RESALE OR IN COMBINATION WITH ANY OTHER PRODUCTS.
(d) Products manufactured by a third party ("Third Party Product") may constitute, contain,
be contained in, incorporated into, attached to or packaged together with, the Products.
NOTWITHSTANDING ANYTHING ELSE PROVIDED HEREIN, THIRD PARTY PRODUCTS
ARE NOT COVERED BY THE WARRANTY IN SECTION 11(a). FOR THE AVOIDANCE OF
DOUBT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY;
(ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE;
OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER
ACKNOWLEDGES THAT ANY THIRD PARTY PRODUCT IS BEING PURCHASED FROM
SELLER IN ITS CAPACITY AS A DISTRIBUTOR OF SUCH THIRD PARTY PRODUCT FROM
A THIRD PARTY MANUFACTURER. ACCORDINGLY, BUYER ACKNOWLEDGES THAT IT
WILL LOOK SOLELY TO THE WARRANTY, IF ANY, PROVIDED BY THE THIRD PARTY
MANUFACTURER FOR ANY DEFECT ASSOCIATED WITH ANY THIRD PARTY PRODUCT.
(e) The Seller shall not be liable for a breach of the warranties set forth in Section 11(a) or
Section 11(a) unless: (i) Buyer provides detailed written notice of the defective Products or Services, as the
case may be (including the applicable defect, product or service code, invoice number and delivery or service date), to Seller within 3 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) or Section 11(b) to examine such Products or Services and Buyer (if requested to do so by Seller) returns such Products or other items which Seller has performed Services on to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Products or Services are defective.
(f) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) or
Section 11(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect
arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Products; (iii) Buyer alters or repairs such Products, or allows a
third party to alter or repair such Products, without the prior written consent of Seller; or (iv) in the event of
any resale by Buyer.
(g) Subject to Section 11(e) and Section 11(f) above, with respect to any such Products during
the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the
defective part); or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Products to Seller.
(h) Subject to Section 11(e) and Section 11(f) above, with respect to any Services subject to a
claim under the warranty set forth in Section 11(a), Seller shall, in its sole discretion, (i) repair or re-perform
the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
(i) THE REMEDIES SET FORTH IN SECTIONS 11(g) AND (h) SHALL BE THE
BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY
BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 11(a) AND (a), RESPECTIVELY.
12. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD
PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION
IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED
THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS AND SERVICES
(c) The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting
from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s
acts or omissions.
13. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances.
Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Products.
14. Termination. In addition to any remedies that may be provided under these Terms, Seller may
terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly
set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. Confidential Information. All non-public, confidential or proprietary information of Seller,
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, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a nonconfidential basis from a third party.
17. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have
defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller 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 other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement are governed by and
construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
22. Submission to Jurisdiction and Venue. Any legal suit, action, or proceeding arising out of or relating
to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in and for Brevard County, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications
hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any
jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will
remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 13 (Compliance with Laws), Section 16 (Confidential Information), Section 21 (Governing Law), Section 22 (Submission to Jurisdiction and Venue) and this Section 25 (Survival).
26. Amendment and Modification. These Terms may only be amended or modified in a writing stating
specifically that it amends these Terms, that contains an explicit reference to the applicable Sales Confirmation(s) and that is signed by an authorized representative of each party.
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