LEAP Tooling Terms of Sale
1. Applicability
In the absence of any specific written agreement to the contrary between the parties, the standard terms of sale and delivery presented below shall apply to all sales of LEAP tooling products and services by Advanced Ground Systems Engineering, LLC and its affiliated entities (collectively, the "company") to any purchaser.
2. Drawings and descriptions
All information concerning weight, dimensions, capacity, technical and technological data, etc. as well as prices listed in catalogues, advertisements, photographic material, price lists and the like is approximate. Such information shall only be considered binding in the event that such is expressly stated in the confirmation of order issued by AGSE or in any form of written agreement signed by AGSE.
3. Prices and Orders
AGSE intends to maintain competitive pricing for LEAP tooling products and services, but shall be entitled to change its prices set forth in its LEAP catalog or elsewhere at any time without advance notice. In the absence of any written agreement to the contrary, all sales shall be made in United States Dollars using the prices for products quoted by AGSE and confirmed in writing. Prices quoted are Incoterms
2010 ex-works from AGSE's facility (AGSE, LEAP CoE, OH), and are for products and standard packaging only and are exclusive of all shipping, customs, installation, warehousing or other services or requests, and exclusive of all VATs, tariffs, duties, sales taxes, use taxes, regional taxes and fees and like levies or taxes. Any taxes, fees or duties which AGSE may be required to pay or collect relating to the sale, delivery, processing, use or transportation of the products shall be for the account of the purchaser who shall promptly reimburse AGSE on demand. Prices are based on the currency exchange rates applicable at the time the offer was made, and may therefore be amended by AGSE at any time to accommodate changes in the price/currency ratio. Prices quoted are open for the time stated in the quote or a maximum of thirty (30) days from the quotation date and are based on estimated quantities, labor and material requirements and other factors, and are subject to adjustment by AGSE from time to time.
Purchase orders for LEAP tooling products and services are non-cancellable by purchaser without prior written consent of AGSE. If the Purchaser requests to cancel an order, then AGSE, at its sole and exclusive discretion, may apply a cancellation fee equal to the greater of work completed to date or fifteen percent (15%) of the sales/invoice price. No cancellations shall be allowed after the scheduled shipment or service date. In the event of any attempted cancellation or refusal to accept products or services, the purchaser shall indemnify AGSE for any and all losses sustained by AGSE by reason of such attempted cancellation or refusal to accept products or services.
4. Delivery
Delivery for LEAP tooling products is Incoterms 2010 ex-works from AGSE's facility (AGSE, LEAP CoE, OH). Risk of loss for the products passes to the purchaser at the time of delivery by AGSE to the freight carrier at the point of shipment (unless AGSE has agreed in writing to an acceptance procedure, in which case risk of loss transfers upon acceptance). AGSE shall provide the purchaser with any required documentation with delivery. The shipment will be sent at the risk and the expense of the purchaser, and AGSE has no liability and shall not accept responsibility for loss or damage occurring in transit. Unless AGSE has received specific instructions in advance, AGSE shall be entitled (but not obligated) to select the means of transport and delivery route, and AGSE shall provide shipping information to the purchaser within twenty-four (24) hours. The purchaser assumes the responsibility to obtain adequate insurance on each shipment.
5. Freight policy
Unless otherwise agreed in writing, all transportation and related costs are the sole responsibility of the purchaser.
6. Delivery times
The delivery time quoted is approximate, with reservations for delays on account of Force Majeure Events (as defined below). Should any Force Majeure Event occur, delivery times will be postponed for a period equivalent to the duration of the event(s) in question. Deliveries made on the postponed delivery date shall in all respects be considered to have been made on time. Insofar as the delivery time may be stated as specific number of days or weeks, this period shall be calculated from the time when AGSE received from the purchaser all information required to implement the order. Insofar as the purchaser may fail to meet any payment obligations by or on the due dates of same, the delivery time shall be postponed for a period equivalent to the duration in the delay of the payment in question. Insofar as delays arise for reasons other than those mentioned above, such shall not entitle the purchaser to cancel any order either fully or in part but shall result in the discounts set forth below. AGSE reserves the right to delay shipment of verbal orders until it receives a written confirmation of the order.
7. Payment
All payments for LEAP tooling shall be made in United States Dollars due thirty (30) days from the date of invoice or on such other terms as approved by AGSE's credit department in writing. The credit department may decline at any time to permit shipment of products hereunder until receipt of payment or written agreement upon terms and conditions satisfactory to the credit department in its sole discretion. Payments shall be due on a pro rata basis in the case partial shipments are made by AGSE; provided that, delays in the delivery of a non-significant part of the shipment shall not entitle the purchaser to refrain from paying the full amount owing pursuant to the agreements reached. Should the purchaser fail to make payment on time, in addition to collection costs, AGSE shall be entitled to charge interest on the sum owing at the lesser of (a) 1.5 percent (1.5%) per month, or (b) the maximum percentage then permitted by law, in either case on the balance remaining from the time of delivery until such time as payment may be made. If AGSE retains a third party to collect overdue amounts, all collection costs resulting from such retainer, including, without limitation, legal fees and disbursements, shall be payable upon demand by the purchaser to AGSE. In the event that the purchaser fails to accept or permit delivery on time for products that are to be delivered at a specific time, AGSE can choose to either sell such products at the purchaser's expense, having notified the purchaser of its intention to do so, or to store the products at the purchaser's expense such that the purchaser is required to pay all costs linked to the period of storage. Irrespective of any delays in delivery, the purchaser is in all events obliged to make the stipulated payment on or by the applicable due date. The purchaser bears the full risk and cost for any items placed in storage.
8. Inspection
The purchaser is encouraged, immediately upon reception of the items purchased, to carry out an inspection of the LEAP tooling products received with good business practice. The purchaser shall have no right to inspect any products prior to delivery unless permitted to do so in writing by AGSE in its discretion, and any inspection of the products by the purchaser shall be made within seven (7) days after their availability at the purchaser's receiving point. Failure to make inspection and provide AGSE with written notice specifying any claimed basis for rejection within that time will constitute deemed acceptance of the products and, if the purchaser has established credit terms, a final waiver of the right to make any inspection prior to full payment for all of the products.
9. Technical support; 24 hour hotline; training; loan of tooling during repairs
AGSE shall provide technical assistance to the purchaser by responding in a timely manner to queries relating to LEAP tooling product usage, operation, maintenance and repairs. AGSE maintains a 24/7 support hotline and website for after sales support, and has commercial and support offices and distribution centers in required locations.
For LEAP tooling products that require specific training as designated by AGSE, AGSE shall provide at no charge to the purchaser upon request one training session at a company designated facility regarding tooling familiarization and operation. Additional training for airline purchasers shall be made available if requested at AGSE’s standard rates.
In the event that AGSE is unable to repair a LEAP tooling product within the agreed to Shop Processing Time (SPT), and such delay is not due to a Force Majeure Event or the actions of the purchaser, then upon request of the purchaser, AGSE will provide free of charge a rotable unit (loan or exchange) of equivalent configuration for use by the purchaser until the product under repair is available.
10. Conditions of ownership
If payment is not made before or at time of delivery, the purchaser hereby grants to AGSE a security interest (including without limitation, a purchase money security interest) in such LEAP tooling products at any time delivered by AGSE to the purchaser, and in all replacements and substitutions thereof, all additions and accessories thereto, and all proceeds thereof, to secure payment of the purchase price of all products, any collection costs, and any other debts owing to AGSE by the purchaser, and interest thereon. AGSE and the purchaser agree that the security interest granted hereunder attaches upon the issuance of the purchaser order by the purchaser to AGSE. The purchaser agrees to do all acts necessary to perfect and maintain such right, title and security interest in AGSE. The purchaser, at its expense, shall fully insure the products against all perils until AGSE has been paid in full.
11. Changes to design or LEAP tooling product offering
AGSE reserves the right, prior to delivery and without notifying the purchaser in advance, to carry out such alterations to the design, construction, etc. of its LEAP tooling products as AGSE may deem necessary in its discretion and/or as may be required under any existing license. Such alterations shall only entitle the purchaser to cancel an unfulfilled purchase order insofar as the purchaser proves that the purchase was conditional upon a specific exact design, construction or similar requirement. Changes made and any resultant cancellation of the purchase order does not entitle the purchaser to any form of compensation or damages, or to a proportional discount in the purchase price. AGSE reserves the right to discontinue LEAP tooling products, product components or spare parts at any time for any or no reason.
12. Confidentiality
The purchaser agrees to protect and hold in strict confidence all trade secrets, proprietary and confidential information relating to the products or AGSE of which it has or gains knowledge, including LEAP tooling products. All drawings, designs, estimates, descriptions and other material of AGSE or its licensors made available on the issuing of offers or deliveries are and shall remain the sole property of AGSE or its licensors and may not, in the absence of express permission in writing from AGSE, be copied, presented to other companies or used as the basis for performing work. Drawings and other materials that AGSE has prepared for use in connection with offers are to be returned or destroyed on request.
13. Packaging
Products will be shipped in standard packaging designated and supplied by AGSE from time to time in its discretion, which may vary depending on whether the shipment is made by air or ship or other common carrier. Product containers shall be accompanied by such packing slips, and/or any other documents and materials as deemed necessary by AGSE. Custom packaging will only be available at the purchaser's expense pursuant to a written agreement, and AGSE is not responsible for charges associated with overseas containers, containerizing or packaging for long-term storage, pier handling, marshalling, demurrage, lighterage, heavy lifts and the like. Boxes and/or other packaging returned will not be credited and will only be accepted on the basis of a written agreement.
14. Returns
Products which are normally stocked by AGSE for sale (specifically excluding any custom products or products using or integrating purchaser's equipment) ordered in error may be returned, at the purchaser's expense, within thirty (30) days of delivery for credit, less an amount equal to 25% of the original purchase price, representing a restocking charge. No product is to be returned to AGSE by the purchaser without the prior written consent, acceptance and authorization of AGSE via electronic mail or facsimile, and all returns require a return authorization number which must be obtained from AGSE and included on all shipping paperwork. AGSE shall have no liability for products damaged in shipment. To apply for permission to return products, the purchaser must first contact AGSE in writing with its request and for further instructions.
15. Company LEAP Tooling warranty policy
AGSE's LEAP Tooling limited warranty as in existence at time of product delivery is attached hereto and accepted in its entirety by the purchaser as the sole warranty relating to the products, and is incorporated herein and made a part of these terms and conditions by this reference.
16. Product liability
The purchaser shall at all times indemnify, defend and hold AGSE and its present and former directors, officers, employees agents and affiliates (collectively, "indemnitees") harmless against all allegations, claims, proceedings, demands and liabilities of any kind whatsoever, including reasonable legal expenses and attorneys' and experts’ fees, arising out of the death of or injury to any person or persons or out of any damage to property, resulting from or relating to the use, modification, alteration, repair or resale of the purchaser's products. The purchaser shall obtain and carry in full force and effect at all times commercial, general liability insurance which shall protect the purchaser and the indemnitees from all such claims. Such insurance shall be written by a reputable insurance company and shall be endorsed to include product liability coverage, and shall contain limits not less than those necessary to adequate insure for all such potential claims. The purchaser shall, upon request, provide AGSE with certificates of insurance from the insurance carrier evidencing the foregoing insurance coverage.
17. Product information advice liability
Absent the existence of a specific written agreement to the contrary, any product information, technical advice, consulting or other informational assistance furnished by AGSE relating in any manner to its products shall be furnished without additional charge and will be given and accepted at the purchaser's sole risk. AGSE has no obligation to provide any information or assistance prior to receipt of the full purchase price from the purchaser for the products. AGSE will have no liability for damages, loss or expense arising out of the provision of information or assistance or any act or omission, including negligence, by AGSE or its agents. Notwithstanding the foregoing, in the limited circumstance where AGSE has supplied separate, non-standard written advice to the purchaser in the form of the preparation of specific, customized written calculations or in the form of a specific, customized written statement concerning the suitability of the items sold for a specified purpose issued to a purchaser who cannot reasonably be considered to possess the requisite professional knowledge of the area to be able to evaluate the suitability of the items without assistance, then AGSE shall accept limited liability only if the advice provided can be considered indefensible in relation to the knowledge AGSE possessed regarding the object of the advice at the time same was given. AGSE shall accept no liability for statements if it has been made clear that such statements are based on an approximate evaluation or estimation. Should errors be discovered in the written advice supplied by AGSE in connection with the delivery from AGSE, the purchaser shall, without undue delay and immediately after the purchaser has or should have become aware of the presence of the errors, inform AGSE of same. Should this provision be ignored or waived, AGSE shall only pay compensation for such losses as may have arisen as a direct consequence of the incorrect advice from AGSE at the time at which the purchaser should have informed AGSE. In no event shall the liability of AGSE for losses incurred as a result of incorrect information or advice exceed the obligation to repair or replace the product in question with like product, and in no event shall AGSE be liable to purchaser for any amounts in excess of the purchase price paid for the individual product which is the subject of the cause of action. The liability of AGSE for losses incurred as a result of errors in information or advice shall lapse no later than one (1) year after the items to which the information or advice is linked have been delivered.
18. Limitation on liability
AGSE SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE OR OTHER BREACH OF THESE TERMS AND CONDITIONS AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL AGSE'S LIABILITY TO THE PURCHASER EXCEED THE PURCHASE PRICE PAID FOR THE
INDIVIDUAL PRODUCT WHICH IS THE SUBJECT OF THE CAUSE OF ACTION. IN NO EVENT SHALL AGSE'S LIABILITY TO THE PURCHASER EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, operating losses, business interruption, loss of use or revenue, cost of capital, fines or other indirect losses, or loss or damage to property or equipment.
19. Governing law and venue
By issuing a purchase order to AGSE, the purchaser accepts these terms and conditions as applicable therein. Any blanket replacement by the purchaser's terms and conditions is hereby rejected, and in the event of any inconsistency between the terms and conditions hereof and the purchase order, the terms and conditions hereof shall prevail in all instances. These terms and conditions shall be governed by, interpreted under, and construed and enforced in accordance with the internal laws of the State of California, U.S.A. applicable to agreements made and to be performed wholly within the State of California, U.S.A., including without limitation the California Uniform Commercial Code and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods and INCOTERMS 2010 (except as specifically referenced herein for delivery terms). In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating in any manner to these terms and conditions and any purchase order are the state or federal district courts located in the County of Los Angeles, State of California, U.S.A. and all related appellate courts, and the parties hereby consent to the jurisdiction of such courts, and that venue shall be in County of Los Angeles, State of California, U.S.A. Each party hereto waives any right to challenge or move the foregoing designated jurisdictions and venue on grounds of inconvenient forum. Service of process may be made in any manner provided for by applicable law and if the purchaser is not otherwise subject to service of process in the State of California, U.S.A., the purchaser agrees to and does hereby irrevocably appoint the Secretary of State of the State of California, U.S.A. as the purchaser's agent for the acceptance of service of process, and a copy of such process shall be mailed by AGSE to the purchaser at purchaser's last known address. These terms and conditions are binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, successors and permitted assigns, as the case may be. Except with the prior written approval of AGSE, the purchaser may not assign a purchaser order or the terms and conditions applicable to it. If any provision contained herein is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision and all other provisions shall remain in full force and effect.
20. Force majeure
AGSE shall use reasonable efforts to perform its obligations, but shall be excused for failure to perform or for delay in performance hereunder due to force majeure including (1) due to causes beyond its reasonable control, or (2) due to acts of God, acts or failures to act of civil or military authorities (including the Governments of the United States and political subdivisions thereof), governmental priorities, fires, labor disputes, strikes, floods, earthquakes, epidemics, war (declared or undeclared), riot, or (3) because of inability due to causes beyond its reasonable control after diligent efforts to obtain necessary labor or materials (collectively, “Force Majeure Events”). In the event of any such delay, the time of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
21. Publicity
The purchaser shall not make or authorize any news release, advertisement or other disclosure which directly or indirectly identifies AGSE or any licensor of LEAP Tooling intellectual property (including CFM) as the source of products without the prior written consent of AGSE in each instance.
22. Compliance with laws
All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable laws, such as export control laws and regulations, including those of the country from which products are shipped and those of the U.S. Government, which includes without limitation International Traffic in Arms Regulations (Title 22 U.S.C. 2778) (ITAR). The purchaser agrees that it shall not, except as said laws and regulations may expressly permit, make any disposition by way of transshipment, re-export, diversion or otherwise, of U.S. origin goods and technical data (including computer software), or the direct product thereof, supplied by AGSE hereunder. The obligations of the parties to comply with all applicable export control laws and regulations shall survive any termination, or discharge of any other contract obligations. The purchaser undertakes to keep itself fully informed of, and to comply with, the applicable export control laws and regulations, including those of the U.S. Government, such as ITAR, and any amendments thereof. Notwithstanding any other provisions herein, the purchaser shall be responsible for timely obtaining any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even though any such authorization may be applied for by AGSE. The parties shall provide each other reasonable assistance in obtaining required authorizations. AGSE shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed, and the purchaser shall not be relieved thereby of its obligations to pay AGSE for its products or services or any other charges which are the obligation of the purchaser hereunder. The purchaser certifies that the products, materials, services, technical data, software or other information or assistance furnished by AGSE will not be (a) used by any individual or entity listed as a prohibited party on any list of the U.S. Government or foreign country of prohibited or denied parties, (b) sent to any party in a country listed as a prohibited country by the U.S. Government or any foreign country, or (c) used in the design, development, production, stockpiling or use of chemical, biological, or nuclear weapons either by the purchaser or by any entity acting on the purchaser's behalf.
AGSE agrees that its LEAP tooling products sold to purchasers located within the European Union will be manufactured in compliance with applicable European Union directives, standards and regulations and appropriately marked and shipped with a CE Declaration of Conformity.
AGSE LEAP TOOLING WARRANTY
Advanced Ground Systems Engineering LLC (AGSE) warrants to original purchasers that (a) LEAP Tooling products will conform to their written specifications and design, (b) purchasers will receive good title of the products, and (c) the LEAP Tooling products will be free of defects in material and workmanship under normal use and conditions for claims received within a period of three (3) years from date of delivery to customer (Incoterms ex-works), and to the extent that if any AGSE product fails to comply with the foregoing, AGSE will replace or repair, at its option, the defective article. Prior to the repair or replacement of any defective product, AGSE shall be notified in writing by the purchaser on a timely basis with sufficient supporting documentation as to the nature of the defect. AGSE shall assume no liability for freight, disassembly, removal, refitting and installation charges on any article returned unless such charge(s) is approved by AGSE in writing prior to the return. On component items purchased by AGSE for incorporation into an AGSE manufactured product, only the component manufacturer’s warranty (if any) shall apply to that component. Said manufacturer’s warranty shall be passed on to AGSE’s customer to the extent permitted. This warranty is applicable only when AGSE products are operated for intended purposes within the recommended procedures, load limits, properly maintained, not damaged or abused, contaminated, overloaded, etc., including as indicated in company manuals, catalogs, and drawings. This warranty shall also not be applicable due to product wear and tear or when any failure is due to a part or component not manufactured by AGSE or one of its subcontractors. All warranty claims must be applied for within sixty (60) days from when the defect becomes known. The foregoing warranty is in lieu of all other warranties, or liabilities, either expressed or implied, and AGSE expressly excludes all implied warranties of merchantability and fitness for a particular purpose and all non-infringement warranties as well as disclaims all liabilities to third parties. In no event shall AGSE be liable for any amounts in excess of the purchase price of the product. In the event that AGSE repairs any LEAP tooling product at one of its facilities following expiration of the warranty period, then the repair work is warranted to be free in defects in workmanship under normal use and conditions for a period of one (1) year from completion, subject to the warranty exceptions set forth above.