Terms & Conditions of Sale
The TERMS AND CONDITIONS below, together with those appearing on any attachments to this Order Acknowledgement by Aeronautical Systems, Inc (“ASI”) and, if any, those set forth in the Quotation (collectively, the “Order”), constitute the complete agreement between ASI and Customer (the “Parties”) with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof. These terms and conditions are posted and available (as amended from time to time) at http://www.aeronautical.com/corporate/Terms/ and, as ASI may make amendments without specific notice to Customer, Customer shall actively monitor and review these terms and conditions as they are available at this web site to ensure compliance with them as posted and available.
Customer agrees to be bound by these terms and conditions of sale, notwithstanding Customer’s terms and conditions whether or not supplied to ASI at any time.
ASI will acknowledge receipt of hard copy purchase orders. Additionally, ASI will issue acceptance, denial, or request for clarification via e‐mail or fax within 5 business days. For cases of in‐stock items, or prepaid terms, ASI’s invoice, bill of lading or actual delivery may serve alone as the order acknowledgment. In case of any discrepancy between documents relating to an order, the acknowledgement will take precedence, followed by the order and finally these Terms and Conditions.
ORDER INFORMATION REQUIREMENTS.
The following information MUST BE INCLUDED on the 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 order will be accepted without this information.
Additionally, every order should include a completed End User Statement.
ASI does not accept orders for partial quantities, and unless specifically agreed to in writing by ASI, all quantities ordered must match the original ASI quotation.
In the event all or part of the order, once issued by Customer, is terminated by Customer for any reason whatsoever or Customer fails to accept delivery of the order or any part of the order when they are ready for delivery, or ASI is unable to deliver the order on time because the Customer has not provided appropriate instructions, documents, licenses or authorization: (a) risk in the goods of the order shall pass to the Customer (including for loss or damage caused by ASI’s negligence); (b) the goods of the order shall be deemed to have been delivered and all sums due in such regard shall be due; and (c) ASI may store the goods of the order until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). In the event that the goods of the order are being returned to ASI, Customer shall make such return at its own expense and risk and with its own insurance. In the event that the goods of the order are being returned by ASI, ASI shall make such return at Customer’s expense and risk and with Customer’s own insurance therefore and such goods shall be returned to customer AS IS without certifications or warranties from ASI of any kind.
Quotes are generally valid for 30 days. Every effort will be made to maintain listed or quoted prices, 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 are only valid as stated and expire thereafter; no quote
shall be deemed to be effective after the date stated therein. Quotes past their validity date may be re‐authorized and the validity date may be reestablished by ASI but are subject to re‐quotation based on new market conditions. Prices cited in any order are based on current costs and are subject to reasonable adjustment on or after the date of acceptance of any order to meet a rise or fall in such costs, as computed on the date of delivery.
Invoices will be faxed or emailed as early as the time of order acknowledgment for pre‐paid customers or at time of shipment for customers with approved credit. Payments from a Customer should be mailed to the address shown on the invoice within the agreed upon term of credit or will be subject to an interest charge of 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. In the event that fees or costs are incurred by ASI in the collection of unpaid invoices they shall be the responsibility of the customer. Accounts with unpaid balances over sixty (60) days will be placed on credit hold. Ownership of the goods shall not pass to the Customer until ASI has received in full (in cash or cleared funds) all sums due to it in respect of such goods.
When any sum owed by Customer to ASI under this Order is overdue, ASI may, without notice to Customer, either: a) cease the supply of further products, services and/or repair services under this 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; or b) terminate the Order and any other agreements or Orders between ASI and the Customer, whether or not any sums are due for payment by Buyer there under, without liability on the part of ASI. Customer shall pay ASI immediately all sums due and outstanding under all such agreements or Orders with respect to products, services, repair services, components, parts, and other materials supplied or ordered in partial execution of the Order, together with all overhead and other costs incurred by ASI as a result of such termination. In any event, the costs incurred by ASI as a result of Customer’s nonfulfillment shall be payable by Customer upon submission of ASI’s invoices therefore.
Orders placed against a valid quotation are subject to the delivery terms as quoted, and on receipt of order may be negotiated. Stock items are subject to prior sale. ASI reserves the right to ship stocked items within 48 hours unless delayed delivery is agreed upon. If stock is no longer available, Customer will be notified and a lead time will be provided for production, if available. ASI will not pay or be assessed to pay late penalties (or liquidated damages) on delayed or backordered shipments unless expressly consented to at the time of the order. Penalties, to the extent such are agreed upon, shall not be applied to exceed 10% of the unit cost under any circumstances. ASI reserves the right to ship partial shipment against an order unless it is otherwise agreed . ALL ORDERS WILL BE SHIPPED FCA UNLESS OTHER ARRANGEMENTS HAVE BEEN MADE.
Until ownership of the goods of the order has passed to the Customer, the Customer shall (a) hold the goods on a fiduciary basis as ASI’s bailee; (b) store the goods (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 goods in satisfactory condition; and (d) keep the goods insured on ASI’s behalf for their full value against all risks to the reasonable satisfaction of ASI.
Customer’s right to possession of the Goods 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 hereunder or any other contract 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 to trade; or Customer encumbers or in any way charges any of the goods.
ASI shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from ASI. Customer grants ASI, its agents and employees an irrevocable license at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where Customer’s right to possession has terminated, to recover them.
ASI maintains, as commercially reasonable, trace documentation on all items. All shipments are accompanied by an ASI Certificate of Conformance at no additional charge. No additional certifications will be provided.
Packing will be standard quality bulk commercial packaging unless otherwise specified on the request for quote, quoted by ASI, and specifically stated on the purchase order. Special packaging markings must
be arranged individually, and will be subject to agreement by ASI and are subject to additional costs.
Customer agrees that it will not export or re‐export any parts or technology 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, such 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 parts. ASI reserves the right to cancel or refuse an order based on any information or suspicion that the above restrictions are not being followed. ASI is excluded from liability for any export made without express consent of ASI. Customer shall indemnify, defend and hold ASI harmless for and against any losses, costs or damages incurred by ASI or claimed against ASI pursuant to any claim by a third party relating to the Customer’s use of the Goods (including but not limited to the Customers export or resale of the Goods)
RETURNS AND NON‐CONFORMING MATERIAL.
ASI does not accept returns except in cases where there is a: deviation from the ordered and agreed upon condition of items; discrepancy or defect in manufacturing that can be verified by ASI’s Quality and Engineering Departments; deviation outside the tolerances set in the manufacturer’s drawings which directly affects form, fit, or function of the unit.
Customer, upon receiving possession of the materials, shall have a reasonable opportunity, but no longer than sixty (60) calendar days, to inspect the materials to determine if the materials conform to the conditions of the contract. If Customer, in good faith, determines that all or a portion of the materials are non‐conforming, the customer must provide written notice and substantiating evidence to ASI of the reason for rejecting the materials within the 60 day period.
ASI will assess the validity of such a claim and provide a course of action to rectify the situation, including but not limited to replacement of the items, issuance of a Return Material Authorization for rework of the items, and shipment of materials and instruction for touchup of the items. Only in cases where ASI is unable to provide re‐worked or re‐manufactured items to meet the order and no other solution is available will ASI, at its sole discretion, consider a return or refund.
In the event a Return Material Authorization is issued, material must be returned to ASI within 60 days of RMA issuance. A Customer will be liable for compliance with the terms of any Return Material Authorization, or any other direction provided by ASI, in conjunction with the provision of a RMA or RMA number. A Customer who does not obtain a RMA and RMA number will be responsible for any excess costs incurred. Parts must be returned in the original ASI packaging and with a copy of the original shipment’s paperwork.
LIMITED WARRANTY; LIMITATION ON LIABILITY.
UNLESS EXPRESSLY AGREED BY ASI IN A SPECIFIC EXPRESS EXTENDED WARRANTY, WITH RECOGNITION OF THESE TERMS, AND EXPRESS REFERENCE TO ASI’S INTENT BY THE EXPRESS EXTENDED WARRANTY TO MODIFY 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 DESCRIPTION ON THE FACE HEREOF. ASI IS MAKING NO SEPARATE WARRANTY HEREUNDER.
FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, ASI SHALL BE DEEMED TO INCLUDE ASI, ITS SUBSIDIARIES, AND THEIR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, AND SUPPLIERS OF ALL OF THEM. ASI SHALL HAVE NO LIABILITY ARISING OUT OF THIS ORDER IN EXCESS OF THE AMOUNT OF THE ORDER. 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 AGAINST BUYER BY A THIRD PARTY.
ASI warrants that the work provided will be performed in a professional and workmanlike manner in accordance with applicable standards, in accordance with the latest drawing and certifications revision, free of material defects in materials and design, and in conformance with the specifications and other requirements as set forth on the Order.
In case of New Materials this warranty shall be effective for a period of twelve (12) months from the date of shipment (the “warranty period”) or one hundred and fifty (150) flight hours. In case of repairs or overhaul this warranty shall be effective for a period of six (6) months from the date of shipment or seventy five (75) flight hours.
Customer is required to provide ASI with written notice of a claimed defect, including reasonable proof that the defect is covered by the warranty, within thirty (30) days after the defect becomes apparent, and within the original warranty period. ASI reserves the right to request additional information from the Customer to verify the claim. Any work completed under ASI’s warranty shall be performed at ASI’s facilities, or those of ASI’s subcontractor. In no case will performance under ASI’s warranty cover work completed at the Customer’s facility. In case a visit to Customer’s facilities is necessary by ASI or any ASI subcontractor, Customer shall bear the cost of such visit.
Upon confirmation of a potential claim, ASI will issue Return Material Authorization (RMA) number. A Customer will be liable for compliance with the terms of any Return Material Authorization or direction otherwise provided by ASI in conjunction with the provision of a RMA or RMA number. A Customer who does not obtain a RMA and RMA number will be responsible for any excess costs incurred.
Material must be returned to ASI within 60 days of the RMA date in order to be considered under warranty.
For claims accepted by Aeronautical Systems, ASI will ship replacement materials to the Customer, or, at its sole option, take other action to remedy such non‐compliance which may include, among other things, actions to repair the materials or to refund the price of such materials, with or without a pro‐rata adjustment for the materials based on a straight line depreciation. The Parties agree that the Customer’s sole and exclusive remedy against ASI, where in 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 for the replacement of defective materials only and, in no event shall include cost of installation, removal, or collateral or incidental costs. Replacement materials or repaired materials shall be warranted only for the remainder of the warranty period of the original materials provided (and based upon the delivery date of the original materials provided).
This warranty shall not apply to (i) any materials not manufactured by ASI (the manufacturer’s written warranty and policy shall apply for their product(s) only); (ii) any materials repaired by any party other than ASI, or (iii) any materials which shall have been subject to negligence, accident, abuse or damage, or subject to improper handling, maintenance, or storage by any party other than ASI.
Parts must be returned in the original ASI packaging and 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 Goods and without limitation to rights and remedies of ASI . In the event of such an action by Customer, ASI’s warranty shall be void and/or voidable.
This Agreement is to be construed and governed by the laws 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. The Parties irrevocably agree that any legal action, suit or proceeding (“Action”) arising out of or in connection with this Agreement may be brought in any state court located in Loudoun County, Virginia or the federal court in the Alexandria Division of the Eastern District of Virginia. Each party 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 this Agreement 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 its reasonable expenses, including attorneys’ fees, incurred in enforcing this Order.
If the Customer determines that it requires entry upon property leased, controlled or owned by ASI (or any subcontractor of ASI), Customer will provide advance notice of at least 5 business days and only attempt entry after prior approval of such entry is received from ASI. In the absence of providing such approval, ASI shall be deemed to have rejected the request for entry. In any approval, ASI may, in its sole discretion, impose terms for such visit including without limitation requiring any safety considerations or restrictions be observed.
Customer acknowledges that a breach of its obligations under this Order 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 under this 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 respective 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 in this Agreement will be interpreted as prohibiting ASI from obtaining any other remedies otherwise available to it for such breach or threatened breach, including the recovery of damages. Neither Party shall be liable for delays due solely to extreme weather, fires, floods, earthquakes, riots, or acts of civil or military authority.
The goods and each of the components that constitute the goods are a “commercial item” as that term is defined under the relevant federal acquisition regulations and interpreting law. Consistent with the relevant limits in federal acquisition regulations and interpreting law, including without limitation, 48 C.F.R. 12.212 and 48 C.F.R. 227.7202‐1 through 227.7202‐4, all U.S. Government end users acquire the goods with only those rights set forth herein.
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