09/11/12 ARTICLE 1: APPLICABLE TERMS AND CONDITIONS All A2C products and services are furnished only on the terms and conditions of sale stated herein (“T&Cs”) and on the face of the applicable A2C quotation to the exclusion of any Buyer terms and conditions in any specific order documentation, preprinted or otherwise. A2C's performance of any contract is expressly conditional on Buyer's agreement to A2C's T&Cs, and in the absence of such agreement shall be for Buyer's convenience only, shall not create any contractual obligation and shall not be construed as acceptance by A2C of Buyer's terms and conditions printed or stated in its orders. Buyer's silence for twenty-four (24) hours or acceptance of any product or service shall be deemed acceptance of A2C's T&Cs below. For purposes of these T&Cs, the term “Buyer” shall mean the party submitting the purchase order for purchase and term A2C shall mean Air Cost Control US, LLC, a Florida limited liability company
ARTICLE 2: TERMS OF PAYMENT Credit terms, shipments, deliveries and performance of work are at all times subject to the approval of an authorized representative of A2C. Unless credit is granted, payment is due upon delivery. The price of each product is based upon the payment schedule set forth in A2C's quotation. Any alternative payment schedule and resulting price change must be approved in writing by A2C. All payments for products released and/or shipped on approved credit accounts shall be due in full thirty (30) days from date of invoice unless otherwise agreed in a writing signed by both parties. Buyer's failure to comply with the above shall be regarded as a fundamental breach of contract. Past due balances shall be subject to a service charge of one and one half percent (1.5%) per month A2C may cancel or delay delivery of products in the event of an arrearage in Buyer's account. A2C may waive any default without waiving any prior or subsequent default.
ARTICLE 3: ORDERS, QUOTATIONS AND PRICES A2C's prices, quotations and contracts for products and services are subject to the following, unless otherwise stated in A2C's quotation or other writing signed by an authorized representative of A2C. The following terms and conditions shall also apply: (a) all purchase orders shall be subject to a written/electronic acknowledgement by A2C; (b) Unless otherwise specified in writing, all price quotations are firm for, and expire, thirty (30) days after their respective dates and constitute offers, provided that, budgetary quotations and estimates. Buyer acknowledges that A2C will not place an order with the manufacturer until an order is first received by A2C from Buyer. Once an order is received by A2C from Buyer, A2C will begin to take a stocking position on that part for the duration of the contract The foregoing notwithstanding, all delivery/shipment dates are estimated dates only; (c) unless mutually agreed upon in writing, all prices quoted are for products and services only. The total amount charged to Buyer shall be adjusted to include license fees, customs fees, duties, taxes (including without limitation sales, use and similar taxes), costs of storage, insurance, shipping, special packaging and other customary charges incidental to provision of the products and services provided hereunder. A2C's prices exclude, and Buyer shall be solely responsible and liable for, all such charges; (d) clerical and typographical errors are subject to correction; (e) prices quoted are for products and services only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than A2C's standard tests, and other than A2C's normal domestic commercial packaging, unless expressly agreed to in writing by A2C. All published prices are subject to change without notice. A2C does not grant, and nothing in these T&Cs shall be construed as granting, any license of intellectual property rights. Buyer shall not, nor shall it permit any third party to, reverse engineer any of the products; (f) Buyer shall be solely responsible and liable for compliance with any and all applicable laws, regulations and licensing requirements governing export and/or re-export of the A2C products (including but not limited to U.S. Export Administration Regulations). Buyer shall pay interest charges on past due amounts at a rate of the lesser of 1 ½ percent per month or the maximum rate permitted by law. In the event A2C refers any Buyer invoice to an attorney for collection, Buyer shall promptly pay all reasonable legal fees and disbursements incurred by A2C in connection herewith; (g) All offers made are subject to product availability at the time the purchase order is received, and all unless explicitly stated otherwise, the validity of the offer is limited to one (1) month; (h) For orders placed by a Buyer on the e-commerce website of the Seller, if a product is sold at an incorrect price or the photos or information for the product definition are incorrect, the Seller shall retain the right to refuse or cancel the order placed. This shall apply even if the order has been confirmed and payment made. If payment has already been made, the Seller shall establish a credit note equivalent to the amount paid by the Buyer; (i) For products delivered in units of length and for parts of low weight (less than 0.5g), the quantities delivered may differ from the quantities ordered within a tolerance of +/- 10% without leading to a claim report from the Buyer. The Seller shall establish a credit note equivalent to the amount paid by the Buyer; and (j) Any specific conditions expressed by the Buyer regarding, including but not limited to, the minimum lifespan of products at the time of delivery or the delivery of specific documents (EASA or FAA Certifications, test reports, etc.) that may be stipulated only by reference to a document from the Buyer (purchasing terms, quality document, etc.) shall not be taken into account by the Seller and shall not be grounds for refusal of goods by the buyer.
ARTICLE 4: SHIPPING TERMS AND RISK OF LOSS Except as otherwise maybe agreed in a writing signed by both parties, all shipments are EX WORKS A2C's shipping place with all charges described in Section 3(c) above at the sole expense and responsibility of Buyer, and risk of loss or damage to products shall pass upon delivery to the transportation company. For products shipped outside the United States and its possessions, title and risk of loss or damage shall pass from A2C to Buyer when products are picked up at A2C’s facility by Buyer’s freight forwarder, notwithstanding any shipment terms to the contrary. A2C shall retain a purchase money security interest in all products, and the proceeds thereof, until Buyer has made payment in full in accordance with the terms hereof. Buyer shall cooperate fully with A2C to execute such documents and accomplish such filings and/or recordings as A2C may deem necessary for protection of its interests in the products furnished to Buyer.
ARTICLE 5: ACCEPTANCE The furnishing of a product by A2C to the Buyer shall constitute acceptance of that product by Buyer, unless notice of defect or nonconformity is received by A2C in writing within thirty (30) days of receipt of the product at Buyer's designated receiving address. Notwithstanding the above, any use of a product by Buyer, its agents, employees, contractors or licensees, for any purpose after its receipt, shall constitute acceptance of the product by Buyer.
ARTICLE 6: PERFORMANCE; FORCE MAJEURE A2C shall not be liable for any delay in delivery or other performance hereunder which is due to unforeseen circumstances, or to causes beyond its control, including, without limitation, strike, lockout, riot, war, fire, epidemics, pandemics, government shutdowns, quarantines, act of God, accident, failure or breakdown of components necessary to order completion; supplier, subcontractor or Buyer caused delays; inability to obtain or substantial rises in the prices of labor, materials or manufacturing facilities; curtailment of or failure to obtain sufficient supplies; technical difficulties; or compliance with any governmental law, regulation, or order, including but not limited to U.S. Export Administration Regulations. Provided any such delay is neither material nor indefinite, performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter the other party shall accept performance hereunder. Delay in performance shall not be considered material or indefinite unless it exceeds or is reasonably estimated to exceed twelve (12) months.
ARTICLE 7: ASSIGNMENTS AND TERMINATION No order accepted by A2C may be terminated, cancelled, modified or assigned by Buyer except by mutual agreement in writing. Any attempt to do so without A2C's written consent shall be void. In the event of Buyer’s termination, with or without A2C's consent, for any order accepted by A2C and terminated or cancelled by Buyer prior to delivery: (1) Buyer will pay, at applicable contract prices, for all products allocable to Buyer at the time of A2C's receipt of notice of termination; (2) Buyer will pay all costs, direct and indirect, which have been incurred by A2C with regard to products, plus an amount equal to A2C’s normal profit thereon; and (3) Buyer will pay a termination charge on all other products affected by the termination. For any order terminated or cancelled by Buyer, Buyer agrees to pay A2C an additional charge determined solely by A2C to cover lost profits as determined in accordance with the Uniform Commercial Code or other applicable law. A2C's normal accounting practices shall be used to determine costs and other charges. Buyer acknowledges and agrees that A2C shall have the right, at any time, and from time to time, for credit reasons or because of the occurrence of an event of default or Buyer’s default under any other orders or agreements with A2C (collectively, “Other Orders”), to withhold shipments in whole or in part hereunder or under Other Orders, and to recall all such goods in transit, retake same, and repossess all such goods which may be stored with A2C for Buyer’s account, without the necessity of taking any action and without incurring any liability for exercising its rights hereunder.
ARTICLE 8: LIMITED WARRANTY Buyer agrees to inspect all goods promptly after receipt, and waives any claim for defective goods, for defective manufacture or workmanship, for shortage in count, or for any other cause not made within 30 days after receipt of delivery. As to defects which are not discoverable by inspection within 30 days, A2C shall pass to Buyer any warranty received from manufacturer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, A2C MAKES NO OTHER PROMISE, REPRESENTATION OR WARRANTY OF ANY KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PART OR PRODUCT DELIVERED TO BUYER. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (EXCEPT OF TITLE) INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Warranty is also exclusive of product defects resulting from a lack of maintenance or monitoring and generally all tampering non-compliant with the written instructions of the Seller and detailed in the technical manuals and / or datasheets, or disregarding the or applicable standards or the state of the art; product defects that come from a cause unrelated to the product or any changes or intervention of the Buyer or a third party without the prior written consent of the Seller; normal wear and tear; defects that are a result partly or fully of damage or accidents attributable to the general actions of the Buyer or a third party; defect resulting from instructions given to the Seller by the Buyer; and damages caused by fortuitous incidents that can be imputed to natural disasters. To the extent available to A2C through the manufacturer, A2C's obligation and Buyer's exclusive remedy hereunder will be limited to the repair or replacement of, or the reimbursement for, nonconforming goods, at A2C's option, and will be conditioned upon A2C's receiving written notice of any alleged nonconformity within 30 days after identifying such nonconformity, and return of such Goods to A2C, F.O.B. A2C's factory. A2C will have a reasonable period of time to repair or replace nonconforming Goods.
ARTICLE 9: TITLE Unless specifically agreed in writing by A2C and Buyer, A2C is, and shall remain, the sole and exclusive owner of all right, title and interest in all equipment, tools and know-how produced, acquired, or used by A2C for these T&Cs, including all intellectual property rights related thereto, including all patents, copyrights, trademarks, and trade secrets.
ARTICLE 10: PROPRIETARY INFORMATION A2C and Buyer shall each, during the course of their relationship and thereafter, take all steps reasonably necessary to hold in trust and confidence the others’ Proprietary and Confidential Information. “Proprietary and Confidential Information” includes, but is not limited to, technical and business information relating to each party’s inventions or products, services, research and development, production, manufacturing processes, costs, profit or margin information, employee skills and salaries, finances, customers, marketing and production and future business plans. These obligations also extend to any third party proprietary and confidential information disclosed during the course of the relationship.
ARTICLE 11: EXPORT CONTROL Buyer agrees to comply with all applicable export and re-export control laws and regulations, including, without limitation, the U.S. Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and the U.S. International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State. Specifically, Buyer agrees that it will not -- directly or indirectly -- sell, export, re-export, transfer, divert or otherwise dispose of any products, software or technology (including products derived from or based on such technology) received from A2C to any destination, entity or person prohibited by the laws or regulations of the United States or any other country, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. In the event Buyer fails to adhere to the requirements in this Section 11 or otherwise violates applicable laws, A2C shall have the right to unilaterally terminate these T&Cs and take other appropriate action in response to such breach or violation. Buyer agrees to indemnify and hold A2C, its shareholders, officers, directors and affiliates harmless from and against any and all fines or penalties which may arise as a result of Buyer’s breach or violation. The terms and conditions of this Section 11 shall survive termination or cancellation of the T&Cs.
ARTICLE 12: DAMAGES AND LIABILITY A2C'S TOTAL LIABILITY IN DAMAGES OR OTHERWISE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY, SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY A2C FOR THE UNIT OR PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, RESULTING IN THE LOSS OR DAMAGE CLAIMED. IN NO EVENT SHALL A2C BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL LOSS OR DAMAGES OF ANY KIND, SUCH AS BUT NOT LIMITED TO LOST BUSINESS REVENUE, LOST PROFITS OR COSTS OF DOWNTIME RESULTING FROM A2C'S PRODUCTS OR SERVICES, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY.
ARTICLE 13: INDEMNIFICATION; REMEDIES IN ALL CASES, BUYER WILL HOLD HARMLESS AND INDEMNIFY A2C AGAINST ALL CLAIMS, JUDGMENTS, COSTS AND FEES, INCLUDING REASONABLE ATTORNEY FEES RELATING TO ACTIONS INITIATED AND CLAIMS MADE BY THIRD PARTIES FOR PROPERTY DAMAGE AND PERSONAL INJURIES, INCLUDING DEATH. All of A2C’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law including, without limitation, the right to withhold delivery, stop delivery, resell and recover damages, recover damages for non-acceptance, an action for the price, cancel this Invoice, and seek incidental and consequential damages, without giving effect to the limitations set forth in Section 1- 106(1) of the UCC, as amended. Failure by A2C to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by A2C will be effective unless it is in writing and signed by A2C, and then only to the extent specifically stated.
ARTICLE 14: DISPUTE RESOLUTION All disputes, controversies or claims of any kind arising from or in any way related to these T&Cs, to the breach, termination or invalidity hereof, or to the products or service provided herein, shall be settled by final and binding arbitration. Arbitration shall be conducted in Miami under the rules and procedures of the American Arbitration Association and shall be governed by the commercial law of the State of Florida, without reference to its conflict of law principles. The parties hereby expressly disclaim and exclude applicability of the UN Convention on Contracts for the International Sale of Goods. The arbitral tribunal shall not award punitive damages. The prevailing party in such arbitration shall be awarded its reasonable attorneys’ fees and costs. THE ARBITRAL TRIBUNAL AWARD SHALL BE FINAL AND BINDING, SHALL BE THE SOLE AND EXCLUSIVE REMEDY REGARDING ANY AND ALL CLAIMS AND COUNTERCLAIMS PRESENTED, AND MAY NOT BE REVIEWED BY OR APPEALED TO ANY COURT EXCEPT FOR ENFORCEMENT. NO CLAIMS, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE T&Cs, THE PRODUCTS OR SERVICES FURNISHED BY A2C, MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED OR PERFORMANCE UNDER THESE T&Cs HAS BEEN COMPLETED OR TERMINATED, WHICHEVER IS EARLIER.
ARTICLE 15: INSOLVENCY REPRESENTATION Buyer hereby represents and warrants to A2C that Buyer is not insolvent within the meaning of § 1- 201(23) of the UCC, and Buyer hereby acknowledges that it made this representation to A2C immediately prior to the first delivery of goods.
ARTICLE 16: PATENT INFRINGEMENTS; PATENT INDEMNITY (a) A2C makes no representations or warranties as to whether the Goods furnished by A2C hereunder are free from claims of misappropriations of a trade secret or other intellectual or other proprietary rights or if they otherwise infringe or contribute to the infringement of any patents, trademarks, copyrights, trade secrets or other intellectual or other proprietary rights either in the United States of America or any foreign country. A2C shall in no way be liable in the event of any such misappropriation or infringement or contribution to infringement.
ARTICLE 17: INSECURITY In the event A2C, in its sole and absolute discretion, believes that an event of default has occurred or is likely to occur, then reasonable grounds for insecurity shall be deemed to exist and A2C shall have the right to demand adequate assurance of due performance.
ARTICLE 18: WHOLE AGREEMENT; AMENDMENT These T&Cs (together with any applicable A2C quotation incorporated by reference herein) are the final, complete, and exclusive statement of the agreement between A2C and the Buyer regarding the subject matter hereof, and supersedes all previous and contemporaneous understandings or agreements regarding the same subject matter. These T&Cs may be amended or modified only in a writing signed by authorized representatives of both parties.
ARTICLE 19: SEVERABILITY; WAIVER In the event that one or more provisions of these T&Cs is held to be unenforceable, the remaining provisions apply in full and the invalid or unenforceable provision will be replaced by a provision which lawfully enforces the parties’ intention underlying the invalid or unenforceable provision. The waiver by A2C of a breach of any provision of these T&Cs by the Buyer must be in writing to be effective and will not operate or be interpreted as a waiver of any other or subsequent breach.
ARTICLE 20: INDEPENDENT CONTRACTOR It is mutually understood and agreed by A2C and Buyer that A2C is at all times acting and performing as an independent contractor for the Buyer.
ARTICLE 21: COUNTERPARTS.= Any instrument to be executed by A2C and Buyer may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.