These TERMS AND CONDITIONS below, together with those appearing on any Aeronautical Systems Incorporated (“ASI”) quotation, order acknowledgement or other purchase and sale document, including any attachments thereto (collectively, the “Order”) constitute the complete agreement between ASI and Customer (the “Parties”) with respect to the subject matter of the Order and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties. Any additions, deletions or differences in the terms proposed by Customer (including those contained in any Request for Quotation or Customer Purchase Order) are hereby rejected unless ASI specifically agrees in writing. No waiver or modification of any provision of the Order is valid unless made in writing and duly executed by ASI.
ORDER ACKNOWLEDGMENT AND DOCUMENTATION PRECEDENCE.
ASI will confirm receipt of any Customer Purchase Order, and will issue acknowledgement, denial, or request for clarification via e‐mail or fax within five (5) business days of receipt. In case of any discrepancy among documents relating to an Order, the ASI acknowledgement will take precedence, followed by the ASI Quotation and then these Terms and Conditions.
ORDER INFORMATION REQUIREMENTS.
The following information MUST BE INCLUDED on any Customer Purchase Order: ASI’s Quotation number, ASI’s quoted part number, quantity, condition, and unit price, along with any evaluation or engineering charges which apply. No Customer Purchase Order will be accepted by ASI without all this information. Additionally, every Customer Purchase Order must include the complete Customer name, complete shipping address, complete billing address, and a completed End User Statement.
ASI does not accept Customer Purchase Orders for partial quantities, and unless specifically agreed to in writing by ASI, all quantities ordered must match the ASI Quotation.
TERMINATION OF ORDER.
In the event all or part of the Order is terminated by Customer after issuance of a Customer Purchase Order for any reason whatsoever, or if Customer fails to accept delivery of the Order or any part of the Order, or if ASI is unable to deliver the Order on time because the Customer has not provided appropriate instructions, documents, licenses or authorization: (a) risk of the contents of the Order shall pass to the Customer (including for loss or damage caused by any reason); (b) the contents of the Order shall be deemed to have been delivered and all amounts due in such regard shall be immediately due and payable; and (c) ASI may store the contents of the Order until actual delivery and Customer shall be liable for any costs and expenses (including, without limitation, storage and insurance).
ASI Quotations are valid for the time stated in the quotation. If no time is stated, the ASI Quotation will be valid for thirty (30) days from the date issued. ASI will make a good faith effort to maintain listed or quoted prices for the duration of the quote validity stated above; however, prices are subject to change without notice due to changes in costs of material and/or manufacturing services. Prices and availability information received from ASI are quotations and DO NOT constitute legally binding offers.
Quotes past the validity date may be re‐authorized by ASI and the validity date may be reestablished, but prices are subject to re‐quotation based on new market conditions. Prices cited in any ASI Quotation are based on current costs and market conditions and are subject to reasonable adjustment by ASI (i) at any time prior to the date of acknowledgement of any Customer Purchase Order; or (ii) at any time after the date of any Customer Purchase Order to meet a rise in costs which are beyond the control of ASI.
Shipments to a Customer without established credit terms will be made on a prepaid basis prior to credit approval. A Customer that wishes to establish credit with ASI must complete a Credit Application. ASI reserves the right, in its sole and absolute discretion, to deny credit for any reason, to modify or withdraw credit terms and/or credit limits at any time without notice, and to require guaranteed security or payment in advance for the amount of the Order.
Invoices will be faxed or emailed as early as the time of Customer Purchase Order acknowledgment for pre‐paid customers or at time of shipment for customers with approved credit. Payments from a Customer should be made in the manner instructed on the invoice within the agreed upon term of credit or will be subject to an interest charge of one and one half percent (1.5%) per month plus any collection costs or fees incurred. In the event such a charge shall be unlawful or invalid under law or regulation, such lesser amount as is allowable by law will be charged until the invoice has been paid. If fees or costs are incurred by ASI in the collection of unpaid invoices, those shall be the responsibility of the Customer. Accounts with unpaid balances over sixty (60) days may be placed on credit hold. Ownership of the contents of the Order shall not pass to the Customer until ASI has received payment in full (in cash or immediately available funds).
If Customer does not pay any amount when due, ASI may, without notice to Customer, either: a) cease the supply of further products, services and/or repair services under the Order or/and any other Order that Customer has with ASI, without liability for any loss (including loss of profit or other financial or economic loss) to Customer until such sum, together with such interest as may be due thereon, is paid in full; or b) immediately terminate the Order and any other agreements or Orders between ASI and the Customer, without any liability on the part of ASI. In addition, Customer shall pay ASI immediately all other amounts due and outstanding under any other agreements or Orders with respect to products, services, repair services, components, parts, and other materials supplied or ordered in partial execution of the Order or otherwise, together with all other costs incurred by ASI as a result of such termination. All such costs incurred by ASI as a result of Customer’s breach of these Terms and Conditions shall be immediately due and payable by Customer.
Orders placed against a valid ASI Quotation are subject to the delivery terms as quoted. Until such time as ASI acknowledges a Customer Purchase Order, stock items are subject to prior sale. ASI reserves the right to ship stocked items within 48 hours of receipt of a Customer Purchase Order unless delayed delivery is agreed upon between ASI and the Customer. If a stock item is no longer available, Customer will be notified and a lead time will be provided for production, if available. ASI will not be subject to any late penalties (or liquidated damages) on delayed or backordered shipments unless expressly consented to in writing by ASI. Notwithstanding the foregoing, any penalties shall not exceed ten percent (10%) of the unit cost in the Order under any circumstances. ASI reserves the right to make partial shipment against an Order unless otherwise specified in the Order. ALL ORDERS WILL BE SHIPPED FCA UNLESS AGREED UPON IN WRITING BY ASI.
Until ownership of the content of the Order has passed to the Customer, the Customer shall (a) hold the contents on a fiduciary basis as ASI’s bailee; (b) store the contents (at no cost to ASI) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as ASI’s property; (c) maintain the contents in satisfactory condition (the same as received); and (d) keep the contents insured on ASI’s behalf and to the reasonable satisfaction of ASI for full value against all risks.
Customer’s right to possession of the contents of the Order shall terminate immediately in the event that the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under these Terms and Conditions or any other agreement between ASI and Customer, or is unable to pay its debts or goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrative receiver appointed over any of its assets or administrator appointed, or ceases its operations; or Customer encumbers or in any way charges any of the ASI products.
ASI shall be entitled to recover payment for the contents of the Order notwithstanding that ownership has not passed from ASI to Customer. Customer grants ASI, its agents and employees an irrevocable license at any time, to enter any premises where the contents of the Order are or may be stored to inspect or recover such items.
ASI uses all commercially reasonable efforts to maintain trace documentation on all items. Shipments are accompanied by an ASI Certificate of Conformance. Unless agreed to in writing by ASI, no additional certifications will be provided by ASI.
Packing will be standard quality bulk commercial packaging, unless otherwise specified on the Request for Quotation by Customer and specifically stated on the Order. Special Packaging is subject to additional costs.
Customer acknowledges and agrees that the contents of the Order may be subject to export restrictions, and Customer agrees that it will not export or re‐export any items received from ASI except in full compliance with all United States laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. In particular but without limiting the generality of the foregoing, ASI products may not be exported or re‐exported to a national or resident of any country to which the United States sanctions or embargoes goods without appropriate approvals or licenses, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. In addition, Customer is responsible for complying with any local laws in Customer’s country, which may impact Customer’s right to import, export, or use the contents of the Order.
ASI reserves the right to cancel or refuse any Order, in its sole and absolute discretion, if ASI has any information or reason to believe that any requirements or restrictions are not being adhered to by Customer. ASI shall have no liability for any export made without the express written consent of ASI. Customer shall indemnify, defend and hold ASI harmless from and against any losses, costs or damages incurred by ASI or claimed against ASI pursuant to any third party claim arising out of or relating to the Customer’s use of the contents of the Order (including but not limited to the Customers export or resale of the same).
RETURNS AND NON‐CONFORMING PRODUCT.
ASI accepts returns of product(s) only in cases where there is an explicit deviation from the conditions stated in the Order; a discrepancy or defect in manufacturing that can be verified by ASI’s Quality and Engineering Departments; or a deviation outside the tolerances set in the manufacturer’s drawings which directly affects form, fit, or function.
Customer shall have a reasonable opportunity, but no longer than sixty (60) calendar days following receipt of an Order, to inspect the contents of the Order to determine conformity. Customer must provide written notice and substantiating evidence to ASI for rejecting the Order within the sixty (60) day period.
ASI will assess the validity of any claim of nonconformity and provide a course of action to rectify the same, which may include (in ASI’s sole discretion), replacement of the product(s), issuance of a Return Material Authorization (“RMA”) for rework of the product(s), and shipment of applicable materials and instructions for touchup of the product(s). Only in cases where ASI is unable to provide any of the foregoing remedies, will ASI, in its sole discretion, consider a refund.
In the event a RMA is issued, affected product(s) must be returned to ASI within sixty (60) days of the RMA issuance. Customer will be responsible for compliance with the terms of any RMA, or any other direction provided by ASI, in conjunction with the provision of a RMA or RMA number. Customers who do not obtain a RMA and/or RMA number will be responsible for any excess costs incurred. Order contents must be returned in the original ASI packaging, along with a copy of the original Order shipment paperwork.
LIMITED WARRANTY; LIMITATION ON LIABILITY.
UNLESS EXPRESSLY AGREED BY ASI IN A SPECIFIC WRITTEN EXPRESS EXTENDED WARRANTY, WITH RECOGNITION OF THESE TERMS, ASI’S WARRANTY HEREUNDER, AND ANY WARRANTY OF ANY OTHER PARTY OR THE MANUFACTURER, IS CONTAINED HEREIN EXCLUSIVELY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE ONES STATED HEREIN, AND ASI MAKES NO SEPARATE WARRANTY HEREUNDER.
FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS ASI SHALL BE DEEMED TO INCLUDE ASI, ITS SUBSIDIARIES, AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, AND SUPPLIERS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ASI SHALL HAVE NO LIABILITY ARISING OUT OF THIS ORDER IN EXCESS OF THE AMOUNT OF THE ORDER PAID BY CUSTOMER. IN NO EVENT SHALL ASI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER CONTRACTUAL OR TORT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COST OF SUBSTITUTE PROCUREMENT; LOSS OF USE; LOSS OF DATA; LOSS OF PROFITS, SAVINGS, AND/OR REVENUES; LOSS OF BUSINESS; OR FAILURE OR DELAY IN PERFORMANCE, EVEN IF ASI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, NOR SHALL ASI BE RESPONSIBLE FOR ANY CLAIM FOR THE SAME AGAINST CUSTOMER BY A THIRD PARTY.
ASI warrants that the work associated with the Order will be performed in a professional and workmanlike manner in accordance with applicable industry standards, the latest drawing and certifications revision, free of material defects in materials and design, and in conformance with the specifications and other requirements set forth in the Order. In case of new products, this warranty shall be effective for a period of twelve (12) months from the date of shipment or one hundred and fifty (150) flight hours, whichever occurs first. In case of repairs or overhaul of a product, this warranty shall be effective for a period of six (6) months from the date of shipment or seventy five (75) flight hours, whichever occurs first.
Customer is required to provide ASI with written notice of a claimed defect within the applicable warranty period, including reasonable proof that the defect is covered by the warranty, within thirty (30) days after the defect becomes apparent or should have been known to Customer. ASI reserves the right to request additional information from Customer to verify any warranty claim. Any work completed under ASI’s warranty shall be performed at ASI’s facilities, or those of ASI’s subcontractor, at the direction of ASI. In no case will performance under ASI’s warranty cover any work completed at the Customer’s facility. In the event ASI (or its subcontractor) must travel to Customer’s facilities to validate any warranty claim, Customer shall bear the cost of such visit.
Upon confirmation of a warranty claim, ASI will issue a RMA number. Customer will be liable for compliance with the terms of the RMA or direction otherwise provided by ASI in conjunction with the provision of a RMA or RMA number. Customers who do not obtain a RMA and/or RMA number will be responsible for any costs incurred. Items must be returned to ASI within sixty (60) days of the RMA date to be considered under warranty.
For ASI confirmed warranty claims, ASI will ship replacement items to Customer, or, at ASI’s sole option, take other action to remedy such non‐compliance which may include, among other things, actions to repair the product(s) or to refund the price of such product(s), with or without a pro‐rata adjustment for the product(s) based on a straight line depreciation. Customer acknowledges and agrees that Customer’s sole and exclusive remedy against ASI, whether under contract, under the Uniform Commercial Code, or in negligence or strict liability, and whether arising out of warranties, representations, instructions or through defects, shall be the replacement of defective products only and, in no event, shall such remedy include the cost of installation, removal, or any other incidental costs. Replacement products or repaired products shall be warranted only for the remainder of the warranty period of the original products provided in the Order (and based upon the original delivery date of such product).
This warranty shall not apply to (i) any products not manufactured by ASI (in which case the manufacturer’s written warranty and policy shall apply); (ii) any products repaired by any party other than ASI or its designee, or (iii) any products which shall have been subject to negligence, accident, abuse, damage, or subject to improper handling, maintenance, or storage by any party other than ASI.
Products must be returned in the original ASI packaging, with a copy of the original shipment’s paperwork. Customer may not destroy, deface or obscure any identifying mark or packaging on or relating to the products without limitation to rights and remedies of ASI. In the event of non-compliance of these terms by Customer, ASI’s warranty shall be null and void and/or voidable.
These Terms and Conditions are to be construed and governed by the laws of the Commonwealth of Virginia, without regard to conflicts of law principles thereof or to the Convention on the International Sale of Goods. If any act, statute, rule or regulation requires the inclusion herein of any term, condition, warranty, undertaking, or representation in order to render it enforceable then such term, condition, warranty, undertaking or representation shall be deemed to be included herein, but only to the extent required. Customer hereby irrevocably agrees that any legal action, suit or proceeding (“Action”) arising out of or in connection with the Order or these Terms and Conditions must be brought in any state court located in Fairfax County, Virginia or the federal court in the Alexandria Division of the Eastern District of Virginia. Customer agrees not to assert, by way of motion, as a defense, or otherwise, in any such Action any claim: that it is not subject personally to the jurisdiction of such court, that the Action is brought in an inconvenient forum, that the venue of the Action is improper or that these Terms and Conditions or the subject matter hereof may not be enforced in or by such court, and agrees not to challenge such jurisdiction or venue. ASI shall have the right to be reimbursed and collect from Customer all reasonable expenses, including attorneys’ fees, incurred in enforcing these Terms and Conditions.
Customer acknowledges that a breach of its obligations under the Order or these Terms and Conditions may result in irreparable injury for which ASI will have no adequate remedy at law. If Customer breaches or threatens to breach any of its obligations hereunder or under any Order, ASI will be entitled, without proving or showing any actual damage sustained, to a temporary restraining order, preliminary injunction, and permanent injunction or order compelling specific performance to prevent or cease the breach of Customer’s obligations. ASI will not be required to post any form of bond in any proceeding seeking injunctive relief, despite any applicable statutory provision to the contrary. Nothing herein will be interpreted as prohibiting ASI from pursuing and obtaining any other remedies otherwise available to it for such breach or threatened breach, including the recovery of damages.
Neither ASI nor Customer shall be responsible for delays or failures in its performance (excluding obligations of payment) resulting from acts or omissions beyond its reasonable control.
Updated: May 2020