Terms & Conditions of Purchase
1. Definitions and interpretation
In this Contract except where the context otherwise requires, the following words and expressions shall have the following meanings:
(a) ‘Approved Documentation’ means documentation complying with the regulations referred to;
(b) ‘Aviation Authority’ means the UK Civil Aviation Authority;
(c) “Buyer” means AOG-247 Limited
(d) ‘Goods’ means the goods that are the subject of this order,
(e) ‘Order’ means this order and any related contract;
(f) ‘Seller’s Approved Inspection’ means inspection in accordance with the appropriate EASA and/or FAR regulations as applicable to the Seller;
(g) ‘Statement of Conformity’ means appropriate certificate of conformity;
2. Variation of waiver
(a) The Order and any related contract (“the Contract”) shall be subject only to these conditions, any conditions set out on the front of the Order, such other conditions and variations as the Buyer may have accepted in writing on the face of the Order and such terms as may be implied by law.
(b) These conditions supersede any earlier conditions issued by the Buyer and any conditions purported to be imposed by the Seller.
(c) It is agreed that if any of the Goods included in the Buyer’s Order have been delivered before the formation of this Contract, the provisions of this Contract shall apply to those Goods and govern the rights and liabilities of the Buyer and Seller in relation to those Goods.
The Seller warrants that all Goods delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications and where applicable any drawings and, to the extent that detailed designs have not been furnished by the Buyer, will be free from design defects and shall be suitable for the purposes intended by the Buyer in all respects. The Buyer’s approval of designs furnished by the Seller shall in no circumstances relieve the Seller of its obligations under any provisions of this agreement including the warranty contained in this clause. The Seller acknowledges that the Buyer has made the Seller aware of the particular purpose for which the Goods are purchased and the manner in which they are intended to be used and that the Buyer is relying on the Seller’s skill and judgement in this regard.
All Goods and materials supplied shall be of satisfactory quality and shall be in every respect, fit for their intended purposes and/or any purpose for which they could be used.
As deemed appropriate, the Buyer and/or its customers shall have the right of access to the Seller’s organisation, their suppliers, regulatory authorities and to all facilities involved in the Order and to all applicable records. Records shall be retained in accordance withEN9120 or as otherwise specified.
(a) The prices for the Goods are inclusive of all taxes and duties
(b) The Buyer shall pay for the Goods within 45 days of the end of the month of receipt of the detailed invoice
(c) All payments shall be made in USD unless agreed otherwise by the Buyer.
(a) On the delivery date stipulated by the Buyer or, if no date is stipulated within an agreed time from the date of the Order, the Seller shall deliver the Goods to the Buyer at the delivery address shown on the order or such other place designated by the Buyer.
(b) A delivery note must accompany the Goods together with the following Approved
Documentation as appropriate:
(i) Where the Seller holds EASA approval:
(a) Confirmation of inspection and certification by the Seller’s Approved Inspection staff;
(b) The Seller must issue an Authorised Release Certificate/EASA Form One in accordance with EASA Part 145:
(ii) Where the Seller is a Stockist or Distributor a Statement of Conformity will be issued and will include a copy of the Seller’s incoming Airworthiness Authorised Release Documents in accordance with CAP 562 Leaflet 1-12:
(iii) Where the Seller supplies pursuant to the Federal Aviation Regulations:
(a) Class I items; an Export Airworthiness Certificate/8130-4 in accordance with FAR 21 Sub Part L Export Airworthiness Approvals.
(b) Class II and Class III items; an Airworthiness Approval Tag/8130/3 in accordance with FAR21 Sub Part L Export Airworthiness Approvals.
(c) Where the Seller is a Stockist or Distributor a Statement of Conformity will be issued and will include a copy of the Seller’s incoming Airworthiness Authorised Release Documents in accordance with CAP 562 Leaflet 1-12.
(iv) Where the Goods have been repaired or overhauled by the Seller then the Seller must on delivery state that all Mandatory Modifications have been carried out.
The property and copyright in all designs, drawings and other documents prepared for the Contract or supplied by the Buyer shall belong to the Buyer and the Seller shall use them only
for the benefit of the Buyer.
7. Passing of property and risk
(a) If any part of the price for the Goods is payable before delivery:
(i) the property in all components of the Goods, materials for the Goods and tools to be used exclusively in connection with the Goods (hereinafter called “Hardware”)
shall pass to the Buyer as soon as they are allocated to the Contract and in all related designs, drawings and other documents (hereinafter collectively called “software”) as soon as they are prepared. The Seller shall by written notice inform the Buyer as and when such Hardware is allocated and notwithstanding any payment terms stated in the Order or the Contract or otherwise agreed the Buyer shall be entitled to withhold any payment otherwise due to the Seller until theagreed value of Hardware is equal to the sum of such payments already made to the Seller; and (ii) te Seller shall incorporate in its contracts with sub-contractors and suppliers provision to ensure that the property in all Hardware and Software passes to the Buyer as aforesaid.
(b) Where paragraph (a) does not apply, the property in the Goods shall pass to the Buyer upon delivery to it at the place designated or otherwise as agreed.
(c) Regardless of the passing of the property, the risk in Goods shall not pass to the Buyer until delivery.
(d) The passing of property and risk is without prejudice to any right of rejection which may be exercisable by the Buyer.
8. The Buyer shall be entitled to return any Goods damaged in transit at the cost of the Seller. Termination/rejection
(a) If the Seller is in breach of Contract or becomes unable to pay its debts day by day as they become due, the Buyer may terminate the Contract and may elect to keep all or some of the Goods already delivered or to take all or some of the Goods still being manufactured or otherwise undelivered. Without prejudice to any other right which the Buyer may have, it shall be entitled to terminate this Contract forthwith in the event that the Seller becomes insolvent or enters into or proposes any scheme of arrangement or other composition with its creditors or otherwise becomes insolvent.
(b) In addition to its rights under Clause 8(a) the Buyer may reject any Goods which are not in accordance with Clause 3 or any express or implied condition warranty or other term relating to them. This right of rejection shall be available to the Buyer for a reasonable period (and, in any event, six months) from the date of delivery.
(c) If the Buyer terminates the Contract the Seller shall return to the Buyer all payments already made and if the Buyer rejects any of the Goods, the Seller shall return to the Buyer all payments already made for the rejected Goods. Where, upon termination, the Buyer has elected to keep or take some Goods, the Buyer shall account to the Seller for them as a proportion of the Contract price or at their value to the Buyer, whichever is the lower, but otherwise no compensation shall be payable to the Seller on termination or rejection.
(d) The rights remedies and obligations set out in Clauses 8, 9 and 10 are in addition to any other rights and remedies of the Buyer and obligations of the Seller.
9. Guarantee and indemnity
(a) The Seller shall make good at its own expense all defects found in the Goods during a period beginning on the delivery and ending 12 months after the Buyer first uses them.
(b) Patent and Copyright Indemnification: The Seller, at its own expense, will defend or cause to be defended or, at its option, settle any claim or action brought against the Buyer on the issue of infringement of any patent, design right, trade secret or copyright by the Goods (“Claim”). Subject to the other conditions of this clause, the Seller will pay any final judgement entered against the Buyer with respect to any Claim, and fully indemnify the Buyer in respect of all costs and expenses relating to the Claim provided that the Buyer:
(i) Notifies the Seller in writing of the Claim as soon as possible after becoming aware of it;
(ii) Grants sole control of the defence of the Claim to the Seller, and:
(iii) Gives the Seller complete and accurate information and full assistance to enable the Seller to settle or defend the Claim.
10. Warranties and indemnity
(a) The Seller shall indemnify the Buyer against all actions, claims, demands costs, charges and expense relating to any infringement or alleged infringement of letters patent, registered designs, trademark, copyright or other industrial property right by sale or use of the Goods.
(b) General Warranty and Indemnity. The Seller undertakes that it will indemnify the Buyer from all proceedings, costs, expenses, liabilities, injury, death, loss or damage either direct or indirect, arising out or/or by reason of the breach, non-performance, negligent performance or negligence howsoever arising by the Seller in connection with the performance of the agreement.
The Seller shall not assign or sub-let the Contract or any part of it unless agreed by the Buyer in writing.
12. Statutory requirements
The Seller shall ensure that the Goods are designed and made so as to comply in use with all relevant statutes regulations and by-laws in effect at the time of delivery.
The Order, the Contract and all tools, materials, documents and information issued by the Buyer in connection therewith are confidential, and their use and disclosures must be strictly confined to the Seller himself and his employees properly engaged thereon (except in so far as confidential disclosures to sub-contractors or suppliers is agreed by the Buyer to be necessary) and to the purposes of the Contract. In particular the Seller shall not use the Contract for the purpose of advertisement.
14. Governing law
The construction validity and performance of the Contract shall be governed in all respects by English law and the Seller submits to the jurisdiction of the English courts.
15. Supervening illegality and severance
If any term or provision in this Contract shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Contract but the validity and enforceability of the remainder of this Contract shall not be affected.
16. Performance of work and provision of services
Clauses 1 to 15 shall apply mutatis mutandis to any work and/or services referred to in the Order or any resulting Contract (“the Work”) and in particular, but without prejudice to the generality of the foregoing:-
(a) the Seller shall execute and complete the Work in accordance with the particulars and any specifications contained or referred to in the Order and to the satisfaction of the Buyer.
(b) the Seller shall complete the work diligently, and expeditiously by the date stipulated by the Buyer or, if no date stipulated within a reasonable time from the date of the Order.
(c) the Buyer’s rights of rejection under Clause 8 and the consequences thereof shall apply to the Work as they apply to the Goods.
(d) the Seller shall make good at its own expense all defects found in the Work during a period beginning on its completion and ending 12 months after the Buyer first uses it results;
(e) the Seller shall carry out the Work safely and without risk to person or property and will indemnify the Buyer against all claims, costs, charges and expenses arising out of the Seller’s failure to comply with its obligations under this clause or otherwise in connection with the Work.
(f) The Seller shall insure against such risks in connection with the Work as is prudent and customary in the trade.
Terms and Conditions Of Sale
These terms and conditions (these Conditions), together with the documents they refer to and the quotation to which they are attached (our Quotation), set out all of the terms on which we sell our goods. The Customer should pay particular attention to clause 8, which limits our liability.
1.1 In these Conditions:
• Contract means the contract for the sale and purchase of the Goods, comprising these Conditions and the particulars set out in our Quotation;
• Customer means the person named as “customer” or “buyer” in our Quotation;
• Encumbrance means a lien, mortgage, pledge, security interest, assignment, restriction, charge, or other encumbrance or right exercisable by a third party having similar effect;
• Goods means the goods set out in our Quotation;
• Insolvency Event means: (i) any materially adverse change in the Customer’s financial position; (ii) any information or event tending to indicate that the Customer cannot or will not pay its debts when they fall due or is otherwise deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (iii) any information or event tending to indicate that the Customer will wind up or cease carrying on its business or a relevant part of it; and
• Purchase Price means the purchase price for the Goods, and any shipping or export costs, as set out in our Quotation.
2 Formation of the contract of sale
2.1 By indicating its acceptance of our Quotation, the Customer makes an offer to us to enter into, and to purchase the Goods in accordance with, the Contract. The Customer may indicate its acceptance of our Quotation by any means, including by sending a purchase order, or by confirming in writing.
2.2 We may accept that offer by confirming in writing (which may be by email) to the Customer our acceptance of its order, whereupon (but not before) the Contract will come into existence.
2.3 The Contract consists of these Conditions and the particulars set out in our Quotation, to the exclusion of any and all other terms that the Customer may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing. We do not sell any Goods on any terms other than those of the Contract.
3 Sale and purchase
3.1 We will sell, and the Customer will buy, the Goods for the Purchase Price.
4 Delivery and acceptance
4.1 We will deliver the Goods FCA (Incoterms 2010) to the carrier, with a destination of the address specified in the Quotation. It is the Customer’s responsibility to ensure that the destination address is correct and complete, and that it provides adequate delivery instructions.
4.2 The Customer will indemnify us and hold us harmless against all loss, damage, costs and expenses (including additional storage and shipping costs) which we may incur as a result of
the Customer’s failure to take (or unreasonable refusal to take) delivery of the Goods.
4.3 The Customer must inspect the Goods promptly following delivery. The Customer will be deemed to accept the Goods unless, within 7 days of delivery, it notifies us of a defect in the
Goods, providing to us reasonable evidence of such defect, in which case we will (at our cost) repair or replace the affected Goods. For the purposes of this clause 4.2, the Goods have a
defect if, as at delivery, they materially fail to conform with the warranties in clause 6.1.
5 Risk and Title to the Goods
5.1 Risk in the Goods passes to the Customer upon delivery to the carrier in accordance with clause 4.1. The Customer must insure the Goods for their full Purchase Price from that point
until the point at which title passes to the Customer pursuant to clause 5.2.
5.2 Title to the Goods will pass to the Customer upon payment by the Customer in full of the Purchase Price, and not before.
5.3 Until title to the Goods passes to the Customer pursuant to clause 5.2, the Customer: (i) will store the Goods separately from goods belonging to the Customer or any third party; (ii) will
ensure that the Goods are clearly marked as our property; and (iii) will not sell, alienate, otherwise deal with, or create or allow to be created any Encumbrance over, the Goods.
5.4 If the Customer fails to pay any amount to us when due, or is subject to an Insolvency Event, we will thereby become entitled to enter the Customer’s premises (or to cause our agents
or representatives to do so on our behalf) to recover any Goods to which title has not already passed to the Customer pursuant to clause 5.2.
6.1 We warrant that: (i) we have the right to sell the Goods to the Customer and will give good title to them in accordance with the Contract; and (ii) the Goods will materially conform to
their description and specifications, as we may make them available to the Customer from time to time (the Customer acknowledging that certain used or refurbished Goods may beprovided on an “as is” basis, in which case this warranty will not apply).
6.2 It is for the Customer to determine, on the basis of the description and specifications which we provide, whether the Goods will be of satisfactory quality and fit for the use to which the Customer intends to put them.
6.3 We will additionally provide to the Customer, on a pass-through basis, the full benefit which we receive of any manufacturer’s or third party overhauler’s or refitter’s warranty on the Goods.
6.4 We give no other warranty in respect of the Goods and all warranties and conditions implied by statute or otherwise by law or custom are hereby excluded to the fullest extent permissible by law.
7.1 We will invoice the Customer for the Purchase Price upon dispatch of the Goods, and the Customer will pay our invoice, in full and without deduction or set-off, within 30 days of its date of issue.
7.2 The Customer will pay all invoices in the currency in which they are expressed.
7.3 If VAT is applicable, we will add VAT to our invoice at the prevailing rate, and the Customer will pay that VAT together with the Purchase Price.
7.4 If the Customer has not paid an invoice by its due date for payment, we may (without prejudice to any other remedy) charge interest, from the date on which payment was due until the actual date of payment (whether before or after judgment), at a rate of 4 per cent. per annum above the base lending rate from time to time of National Westminster Bank, accruing daily. The Customer will pay the accrued interest together with the overdue amount.
8.1 Nothing in this clause 8 will limit or exclude our liability for: death or personal injury caused by our negligence; fraud or fraudulent misrepresentation; or any other matter for which it is unlawful under English law to limit or exclude liability (as the case may be).
8.2 We will have no liability arising under or in connection with the Contract or the Goods for: any loss, damage, cost or expense arising out of any use of the Goods beyond their stipulated lifetime or outside the scope of any airworthiness certificate; any loss of profits or revenue; any account of profits; any increased costs; any loss of anticipated savings; any loss of opportunity; any loss of goodwill or reputation; or any indirect or consequential loss.
8.3 Subject to clauses 8.1 and 8.2 above, our total liability arising under or in connection with the Contract or the Goods will be limited to 125% of the Purchase Price.
9 Force Majeure
Save in respect of the Customer’s obligation to pay the Purchase Price, neither we nor the Customer will be liable for any failure or delay in performing our or its obligations under the Contract to the extent that such failure or delay is caused by an event which is beyond that party’s reasonable control, which could not have been foreseen (or, if it could have been foreseen, could not have been avoided), including strikes, lock-outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 We may, by informing the Customer in writing, immediately terminate the Contract, or suspend performance of it, if the Customer is subject to an Insolvency Event.
10.2 On termination of the Contract, the Customer will immediately pay to us all of our unpaid invoices (and any interest which has accrued thereon). We will not be obliged to dispatch any Goods not already dispatched at the point of termination.
11.1 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without our prior written consent.
11.2 Termination of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of such termination.
11.3 The parties are independent contractors. Consequently, the provisions of the Contract will not, under any circumstances, be interpreted as creating any association or partnership between the parties. Neither party may bind the other in any manner whatsoever or in favour of anyone whomsoever, except in accordance with the Contract.
11.4 The Contract contains the whole agreement between the parties, and supersedes and overrides all other agreements, arrangements and understandings between the parties,relating to its subject matter. In particular, any trading terms or other terms of the Customer attached to any purchase order or other documentation will have no effect. Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Contract or not) (each, a Representation) other than as expressly set out in the Contract. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation will be for breach of the Contract. Nothing in this clause
11.4 will limit or exclude any liability for fraud. 11.5 If any provision of the Contract is held to be invalid or unenforceable for any reason, that provision will, if possible, be adjusted rather than voided, in order to achieve a result which corresponds to the fullest possible extent to the intention of the parties. The nullity or adjustment of any provision of the Contract will not affect the validity and enforceability of any other provision of the Contract.
11.6 The Contract may be amended or modified only by a written agreement validly executed by both parties.
11.7 The failure of a party to enforce a provision of the Contract or any rights with respect thereto (or any delay in so doing) will not be a waiver of that provision or right, or in any way affect the validity of the Contract. A waiver of any claim for a breach of the Contract will not operate to waive any claims in respect of any other breach.
11.8 The Contract, and all non-contractual obligations arising out of or in connection with it, is governed by English law and subject to the exclusive jurisdiction of the English courts.