will deliver the new or used parts, exchange parts, and/or repair services, collectively defined as "Deliverables" covered by the Order FCA (Incoterms 2010) to Buyer's carrier at the facility in which the Deliverables will be shipped by Seller. Title and risk on new, exchange and/or used parts shall pass to Buyer at the same time as risk per the Incoterm. Title on the core part from an exchange transaction shall pass to Seller upon receipt of acceptable repairable core part, which shall be received within the timeframe specified by Seller. In the event delivery is delayed due to actions or omissions of Buyer, Seller may, in its discretion, charge reasonable storage fees.
Buyer is responsible for all taxes (excluding taxes based on Seller’s net income), duties and other charges of any nature whatsoever, including interest and penalties thereon, arising from the sale, delivery or use of the Deliverables under the order, and will reimburse Seller for any such charges Seller may be required to pay directly to any government authority or to a designated facility.
Seller may at any time make improvements and minor changes to the Deliverables which do not affect price, installation or the interchangeability of major parts. No other modification of the order is binding unless agreed to in writing by both parties.
Seller is not responsible for any failure or delay in performance resulting from causes beyond Seller's reasonable control. These may include, but are not limited to, acts of government, court order, civil unrest, sabotage, adverse weather conditions, labor problems and shortage of materials or services. Seller will give timely notice to the Buyer of any such event and shall use reasonable efforts to avoid or remove the cause and resume performance with minimum delay. The time for delivery will be extended accordingly.
A. Coverage: Seller warrants to Buyer that, at time of delivery:
New parts will be free from defects in material and/or manufacturing workmanship and will conform to applicable Seller specifications. Seller will repair or replace defective new parts, provided that written notice of the defect is received from the Buyer within five hundred (500) engine operating hours or ninety (90) days from first use by the original operator, whichever occurs first, but in no event later than twelve (12) months from the date of the initial shipment of the new parts by Seller;
Used parts and repair services will be free from defects in material and/or repair workmanship and will conform to applicable Seller specifications. Seller will replace or repair material certified by Seller or Seller’s supplier using a Seller approved repair, within 2000 hours / 2 years from the date of initial shipment of the used or repaired part by Seller, whichever occurs first (with the exception of fuel nozzles, electronic engine controls, or torque controls), provided that the claim is made within such maximum number of operating hours and time after delivery. For fuel nozzles, electronic engine controls or torque controls, Seller will replace or repair within 1000 hours/ 12 months from the date of initial shipment of the goods by Seller, whichever occurs first, and provided that the claim is made within such maximum number of operating hours and time after delivery; and
Reasonable transportation charges (excluding insurance, duties, brokerage fees and taxes) are accepted for parts returned to a facility designated by Seller's Warranty Administration in accordance with Seller's shipping instructions.
FAST™ System and its parts will be free from defects in material and/or manufacturing workmanship and will conform to applicable Seller specifications. Seller will repair or replace defective new parts, provided that written notice of the defect is received from the Buyer within two (2) years from date of the FAST™ System activation or three (3) years from date of shipment by Seller, whichever occurs first.
B. Exclusions & Limitations. The warranties described above do not cover:
Costs of normal scheduled maintenance services;
Normal Deterioration, such as normal wear and tear and deterioration resulting from installation of a known defective part or a non-P&WC approved part;
Unsupported parts(and repairs or damages that are directly attributable to the use of unsupported parts) such as: (1) parts that are not originally supplied by Seller or its authorized distributors and accompanied by Seller Manufacturer’s Release Certificate or Canadian Department of Transport Certificate of Airworthiness, as applicable; (2) parts that are not in Seller’s Illustrated Parts Catalogue ("IPC") and accompanied by the supplier’s Release Certificate; (3) parts that are not repaired in accordance with Seller approved repair processes; (4) parts that are not traceable, e.g. insufficient supporting documentation; (5) parts that have been involved in an accident, are used in military applications or are operated outside OEM-approved limits and (6) non P&WC-approved parts.
Factors beyond Seller’s control, including: (1) improper storage, usage, maintenance or operation of the part that is not consistent with the instructions and procedures of Seller, the aircraft manufacturer or the airworthiness regulations (including abuse, misuse, neglect or experimental use); (2) any work performed on parts without due cause such as pre-purchase inspections, or scheduled maintenance performed at other than Seller recommended intervals; (3) accidents, collisions, propeller strikes, fire, flood, lightning strike, theft, explosion, riot, war, rebellion, seizure or any other belligerent acts; foreign object damage (FOD), erosion, corrosion, sulphidation or any other damage due to the operating environment; (4) alteration to, modification of, or tampering with any part after delivery by Seller, other than in strict accordance with Seller’s manuals; (5) use of stolen parts, or use of a part from which Seller’s name, part number, identification mark or serial number has been removed or defaced; (6) any work performed by a facility other than Seller’s facilities or designated facilities.
C. In the event that any suit, claim or action is brought against Buyer alleging that, without further combination, (i) the Deliverables supplied by Seller hereunder, or (ii) the use or resale by Buyer of a Deliverable made by or under Seller’s control and in accordance with a specification or design provided by Seller, directly infringes any third party’s registered Canadian or U.S. patent (hereinafter "Claim"), Seller shall, as its sole liability and at its own expense, either conduct the entire defense of such Claim including pay all related damages and costs (including reasonable attorney fees) awarded to the third party in a non-appealable judgment for such Claim, or (ii) settle such Claim, provided that Seller shall not be liable for (a) any special, indirect, incidental or consequential damage or any damage such as economic loss or loss of profits resulting from any loss of use of the Deliverables or of the aircraft in which the Deliverables or its parts may be incorporated arising as a result directly or indirectly of any such Claim, or (b) any exemplary, punitive or other similar damages not attributable to the acts of Seller. Buyer shall defend, indemnify and hold Seller harmless against any suit, claim or action for damages under Section 5C. (a), or (b) above, by or arising from the actions of Buyer, or any purchaser or end user of the aircraft equipped with Deliverables provided hereunder. This Section 5C is applicable only if the following conditions are met: (i) the Deliverables involved in the Claim must have been provided hereunder; (ii) Buyer must give Seller immediate notice in writing of any such Claim and the full opportunity and authority to assume the entire defense thereof; (iii) Buyer must provide Seller with all information available to Buyer and other defendants pertaining to the alleged infringement; and (iv) Buyer will give Seller all reasonable assistance and will not by any act or omission do anything that may directly or indirectly prejudice Seller in its ability to assume the entire defense thereof or settlement of such Claim. If the use or resale of Deliverables is finally prohibited as a result of such Claim, Seller shall, at Seller's option and expense, (1) procure the right to use or sell the Deliverables, (2) replace the Deliverables with non-infringing equivalents, or (3) modify the Deliverables so they become non-infringing, but equivalent, or (4) remove such Deliverables and refund the purchase price (less a reasonable allowance for use, damage or obsolescence) or, in the case the Deliverables are services, stop performing the Deliverables. If determined by Seller to be necessary to avoid any claim or to mitigate any damages which may arise for any potential or actual patent infringement, Seller may, at Seller 's option and expense, take any or all of the actions in Section 5C (1), (2), (3) or (4) . Notwithstanding anything in this Section 5C to the contrary, Seller’s obligation to defend or settle the Claim herein shall not apply to Buyer, and Buyer shall indemnify and hold Seller harmless to the extent any claim or action arises as a result of (w) Deliverables provided to the specific instructions of Buyer; (x) Deliverables furnished by Buyer; (y) the use or sale of Deliverables repaired or exchanged other than in accordance with the maintenance manual, or (z) the use or sale of Deliverables delivered hereunder in combination with other goods or services not delivered to Buyer by Seller.
Notwithstanding anything to the contrary, i) the above warranties as set out in section 5A and remedies for intellectual property infringement as set out in section 5C are given by Seller and accepted by the Buyer in place of all other express, implied or statutory terms, representations, warranties or conditions, in contract or in tort, including without limitation, any warranty or condition of merchantability or fitness for a particular purpose, in connection with an engine or Deliverable defect, non-conformity to the applicable specification and any intellectual property infringement and all such other terms, representations, warranties or conditions are hereby expressly disclaimed, and ii) the only remedy for breach of the warranty and for intellectual property infringement is as set out herein. For greater certainty and notwithstanding anything to the contrary herein, in no event shall Seller be responsible for any special, incidental, indirect or consequential damages arising out of or in connection with either a breach of such warranty or for intellectual property infringement, or any tortious or negligent act or omission by Seller, or any exemplary, punitive or other damages not attributable to acts of Seller. Special, incidental, indirect or consequential damages include, without limitation, economic loss, loss or damage to any property or person or any other exemplary, punitive or similar damages, as well as expenses incurred external to the engine. No variation or extension of the foregoing warranty or intellectual property infringement indemnification or associated remedies shall be binding unless in writing and signed by a duly authorized representative of Seller. Buyer's acceptance of the foregoing or the making of any claim or receipt of any benefit there under, constitutes Buyer’s acceptance of all the foregoing terms, conditions and limitations. In no event shall Seller's liability exceed the price on the face of the order, whether based in contract, strict liability, fault, tort, or any other asserted right.
With respect to trend monitoring or services provided by the Designated Analysis Center with which Buyer will register: SELLER SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY ANALYSIS, INTERPRETATION OR APPLICATION OF ANY INFORMATION OR DATA COLLECTED BY THE FAST™ SYSTEM NOR SHALL IT BE LIABLE FOR ANY ERRORS IN OR OMISSIONS IN THE DATA OR REPORTS FURNISHED TO BUYER OR AN OPERATOR BY A DESIGNATED ANALYSIS CENTER. SELLER MAKES NO WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND WHATSOEVER THAT THE INFORMATION OR DATA COLLECTED BY THE FAST SYSTEM ALLOW BUYER OR AN OPERATOR OF AN AIRCRAFT TO DETERMINE THE AIRWORTHINESS OF SUCH AIRCRAFT. BUYER HEREBY IRREVOCABLY WAIVES AND RELEASES SELLER FROM ANY AND ALL LIABILITY IN CONNECTION WITH THE INFORMATION OR DATA COLLECTED BY THE FAST™ SYSTEM, INCLUDING WITHOUT LIMITATION ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER SIMILAR DAMAGES.
If the SIM card and wireless services are provided together with the purchase of a FAST™ System: USER UNDERSTANDS AND AGREES THAT IT: (1) HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER, (2) IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SELLER AND THE UNDERLYING CARRIER NOTWITHSTANDING THAT THE UNDERLYING WIRELESS SERVICE CARRIER HAS SPECIFICALLY AUTHORIZED USERS TO BENEFIT FROM THE SERVICES BEING PROVIDED BY SUCH CARRIER TO SELLER PURSUANT TO AN AGREEMENT BETWEEN SUCH CARRIER AND SELLER, AND (3) THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) THAT SUCH CARRIER IS NOT GUARANTEEING THE DELIVERY OF MESSAGES, WHICH MAY BE DELAYED, DELETED OR NOT DELIVERED, AND (5) THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE TO USERS FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
"Data" shall mean any data collected by the FAST™ System. Buyer hereby grants to Seller a world-wide, non-exclusive, non-terminable, irrevocable, perpetual, paid-up, royalty-free license with right to sublicense to its affiliates and suppliers to any Data, for any Seller business purposes. The Deliverables being provided may result the collection of Personal Information. "Personal Information" shall mean information and data exchanged hereunder related to an identifiable natural person. Both parties will comply with applicable Data Privacy Laws as they pertain to personal information processed in connection with activity hereunder. Any Personal Information contained within Seller’s products or services shall be owned by Seller. With respect to any Personal Information provided by Buyer to Seller, Buyer warrants that it has the legal right to share such Personal Information with Seller. Once Buyer has provided Personal Information to Seller, Buyer and Seller shall become co-Controllers. Seller may such share Personal Information with service providers in accordance with applicable Data Privacy Laws and may store Personal Information provided by Buyer on servers located and accessible globally by Seller, its affiliates and their services providers.
The Buyer’s payment terms shall be "Cash Before Shipment" pending a credit review to establish payment terms. Upon credit approval by Seller, such payment terms shall be net thirty (30) days from the date of the invoice. In certain instances, notwithstanding the payment terms, a deposit may be required for the manufacturing of the Deliverables and/or prior to shipment. The amount of the said deposit shall be determined by Seller at its sole discretion. Overdue accounts are subject to interest calculated and compounded monthly at the rate of fifteen percent (15%) per annum or United States Prime Rate, plus five percent (5%) per annum, whichever is greater, without exceeding the maximum rate allowed per applicable law. Buyer shall not delay payment for the Deliverables or related services pending, or based on the results of, its inspection or acceptance.
Buyer's order constitutes acceptance of all the terms and conditions hereof, which shall apply to the exclusion of any terms and conditions contained in any order or communication of Buyer not specifically agreed to in writing by Seller. Seller's acceptance of Buyer's order for the purchase of Deliverables is expressly made conditional on Buyer's acceptance of the terms contained herein.
Any shipment discrepancy or receipt or incorrect Deliverables against Buyer's order must be reported in writing to Seller within thirty (30) days of the date of shipment. Seller shall not be responsible for any discrepancy reported after thirty (30) days.
All Deliverables being returned, regardless of reason, will require the issuance of a "Return Material Authorization" (RMA) number from Seller prior to the physical return of the Deliverables. Issuance of an RMA does not constitute acceptance of the return by Seller. Returns will be reviewed on a case by case basis including warranty returns as outlined in Section 5 above. Re-stocking charges of 15% of the invoice amount may apply.
Performance hereunder is subject to the receipt of any necessary governmental export or import license, permit or similar authorization under all applicable export, import and customs laws, including Canadian and U.S. export, import and customs laws, affecting the Deliverables and any associated technical data provided hereunder or any part thereof. No U.S. International Traffic in Arms Regulations controlled goods, services or technical data shall be provided to Seller without prior written consent. Notwithstanding any other provision, Seller shall have no liability (including no obligation to provide substitute Deliverables or technical data), nor shall it be in breach, if for any reason any government fails to issue or renew or cancels any Permit or delays in issuing or renewing any Permit affecting any Deliverables or any associated technical data provided hereunder or any part thereof.
Seller may terminate the order at any time by written notice to Buyer if Buyer fails to pay any amount when due or if Buyer becomes insolvent or performs or permits any act of bankruptcy, liquidation, reorganization or if a receiver, trustee or custodian is appointed to Buyer or a substantial part of Buyer's assets. In addition, Seller may terminate the order if Buyer is in default under the terms of any other agreement or order with Seller or any affiliated company of Seller. On termination, Seller shall have no further obligation to Buyer under the order and Buyer will reimburse Seller's termination costs, including, without limitation, a reasonable allowance for profit as well as material, labor and administrative fees. Buyer shall reimburse Seller for all attorneys' fees and other expenses incurred by Seller in recovering any sums due from Buyer regardless of whether the order has been terminated or not. The Buyer may not terminate the order, otherwise he is liable for damages caused to Seller as a result of the termination including, without limitation, costs and expenses as well as for the value of the work performed by Seller before termination of the order including, without limitation, a reasonable allowance for profit.
Absent Seller's prior written consent, any assignment or attempted assignment shall be wholly void, invalid and totally ineffective for all purposes.
Both parties have agreed that these conditions be written in the English language only. Les parties ont convenu que les présentes soient rédigées en anglais seulement. This contract shall be governed by and interpreted in accordance with the substantive and procedural laws in force in the Province of Ontario, Canada. Any provisions of such laws i) requiring the application of laws of another jurisdiction to all or part hereof; or ii) regarding choice of law, shall not apply. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods, the parties exclude the application of the provisions of said convention to all transactions relating hereto.