Terms and Conditions
Standard Terms and Conditions of Sale
WHEREAS, KP Aviation, LLC (the “Seller”) is the owner or consignee of certain aircraft and engine assets, components and parts (individually, a “Part”, and collectively, the “Parts”), and
WHEREAS, subject to the Standard Terms and Conditions of Sale set forth herein (this “Agreement”), Seller has agreed to sell certain Partsto the buyer (the “Customer”), and the Customer has agreed to purchase such Parts from Seller.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Seller and Customer agree as follows:
Agreement
Upon the receipt of a Quotation by Customer, the terms and conditions of this Agreement will apply thereto as if incorporated directly therein. This Agreement is entered into between Seller and Customer for the sale of Parts and is incorporated by reference in Seller’s documented quotation for the terms of purchase of such Parts (the “Quotation”). Upon Customer’s acceptance of the terms of the Quotation (and by reference, this Agreement), Customer shall prepare and deliver to Seller a purchase order for such Parts specified in the Quotation (the “Purchase Order”). Upon receipt and acceptance of the Purchase Order, Seller shall proceed to arrange for Delivery of the Parts to Customer. This Agreement supersedes any and all prior contemporaneous agreements, negotiations, representations, warranties, and communications. The Quotation (and by reference, this Agreement) prevails over any of Customer’s general terms and conditions of purchase, whether or not submitted with Customer’s Purchase Order and shall apply to the exclusion of any other terms that the Customer seeksto impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Acceptance of Customer’s Purchase Order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement. Any special conditions relating to the purchase of any Parts and agreed between the Seller and the Customershall be in writing and such special conditions shall specifically amend, supplement or restate the Quotation.
Pricing and Payment
Payment of the purchase price for the Part(s) specified in the Quotation and as detailed in an invoice (the “Purchase Price”) shall be made in immediately available funds by wire transfer of United States Dollars, free and clear of any deductions, withholdings, taxes or offset of any kind, to such bank account as may be specified by Seller to Customer. Title to all goods listed in the Quotation shall remain with Seller until payment of the Purchase Price is received in full from Customer, at which point Seller shall transfer title to the Parts to Customer (“Delivery”). Quoted prices are valid for thirty (30) days and, prior to sale subject to credit approval. All invoices and balances must be payable net thirty (30) days or as otherwise provided for in the Quotation. The Purchase Price is exclusive of all sales, use, excise, stamp, transfer, import/export, value-added or any other kind of taxes whatsoever (“Taxes”), which shall be paid promptly by the Customer. The Customer hereby undertakes to indemnify and hold harmless Seller on a full indemnity, after-tax basis from and against any Taxes (and all penalties, fines, additions to tax and interest thereon) in connection with the sale of the Parts as contemplated by this Agreement. Should the Seller be required to pay any such Taxes or duties on behalf of the Customer, the Customer shall reimburse the Seller forthwith upon demand. All past due amounts owed by Customer to Seller pursuant to this Agreement shall bear interest at a rate of one and one-half percent (1½ %) per month or the maximum amount permitted by law commencing on the due date until the date the invoice amount is paid in full. Customer agrees to pay any and all costs of collection, including attorney’s fees, in the event it becomes necessary to enforce the payment of Seller’s invoices. Customer shall not have a right to set off amounts due to Seller hereunder against any amount owed by Seller to Customer. Seller reserves a purchase money security interest pursuant to Article 9 of the Uniform Commercial Code (“UCC”) in all Parts sold pursuant to the Quotation and proceeds thereof until payment in full is made for all Parts provided in connection with the sale. Customer agrees to execute or consent to any UCC financing statement or other documentation requested by Seller to perfect its security interest in the goods. If Customer fails to take Delivery of the Parts on the date agreed, the Seller shall be entitled (without prejudice to any other rights or remedies which the Seller may have) to invoice the Customer for the Purchase Price thereof and payment shall be due as if Delivery of the Parts had been effected.
Order Confirmation
All purchase orders from Customer must be made in writing and are subject to approval and confirmation upon receipt by Seller. No order is guaranteed until Seller issues an Invoice to Customer. Cancellation of orders may not be made without the written consent of Seller and such orders are subject to a cancellation fee in the amount of 15% of the Purchase Price. Customer’s orders must be a minimum of $150. The Customer shall be responsible for ensuring the accuracy of any order submitted to the Seller.
Returns
All returnsfor credit must be requested within thirty (30) daysfrom invoice date. Any requests after such thirty (30) days will be denied. All returns shall be effected by Customer as its sole cost and expense and are subject to a restocking fee in the amount of 25% of the Purchase Price. Parts returned without written authorization will be subject to a restocking fee in the amount of 75% of the Purchase Price. Parts must be returned in the original condition (including all documents and certificates) in which such Parts were tendered to Customer.
Delivery Terms
Delivery terms are ExWorks at Seller’sfacility located at 7943 E Ray Road, Suite 101, Mesa, AZ 85212, USA (EXW, Incoterms 2020), or such other facility as Seller may designate, unless otherwise agreed to by the parties in writing. All Parts delivered shall be packaged in accordance with Seller’s standard packing procedures for such Parts. Customer shall, within thirty (30) calendar days after receipt of the Parts, notify Seller of any nonconforming Parts, return such nonconforming Parts to Seller at Customer’s cost, and permit Seller a reasonable opportunity to replace such nonconforming Parts.
Delay in Delivery
Seller will not be liable for any delay in performance due to causes beyond Seller’s control including, but not limited to, embargoes, blockages, delays or refusals to grant export or import licenses or the suspension or revocation thereof, or any other acts or omissions of government, fires, floods, severe weather, or any other acts of God, quarantines, labor strikes, riots, insurrection, pandemics/epidemics, acts of criminals or terrorists, war, material, shortages or delays in delivery by third parties. In the event of such delay the Delivery date shall be extended for a period of time as may be reasonably necessary to compensate for such delay. Seller will not be liable for lost profits, loss of business or other incidental, consequential, special, exemplary, indirect or punitive damages of any kind or nature, including but not limited to lost profits, loss of revenue or opportunity, cost of capital, cost of down time, cost of substitute equipment. Customer agrees that, for any liability arising out of delay, Seller is not liable or responsible for any amount of damage above the aggregate Purchase Price paid by Customer for the purchase of the Parts under this Agreement.
Title and Risk of Loss
Seller represents that it shall have full legal and beneficial title to the Parts sold to Customer on the date of Delivery.
Risk of loss, damage or destruction of the Parts shall pass to the Customer upon Delivery. Notwithstanding the foregoing, title to the Parts shall remain with the Seller until the Purchase Price has been received in full for such Parts, together with any other monies due and owing from the Customer to the Seller on any account (whether in respect of the subject Parts or any other Parts delivered to Seller).
Any resale by the Customer of Parts in which title has not passed to the Customer shall be made by the Customer as agent for the Seller. The proceeds of any resale by the Customer shall be held in trust by the Customer for the benefit of the Seller and placed in a separate account until remitted to the Seller.
At any time before title to the Parts passes to the Customer (whether or not any payment to the Seller is then overdue or the Customer is otherwise in breach of any obligation to the Seller), the Seller may (without prejudice to any other of its rights): (a) retake possession of all or any portion of the Parts; (b) enter any premises for such purpose of repossession or recovery (or authorize others to do so) which the Customer hereby authorizes; or (c) require redelivery of such Parts by Customer to Seller. Any such actions taken pursuant to the foregoing sentence shall be at Customer’s sole cost and expense and reimbursed to Seller upon demand therefor.
Disclaimer of Warranties
OTHER THAN THE WARRANTY OF TITLE GRANTED HEREIN, NO WARRANTY SHALL BE PROVIDED BY SELLER WITH RESPECT TO PARTS SOLD HEREUNDER, AND EACH PART SOLD TO CUSTOMER IS DELIVERED IN “AS-IS, WHERE IS”, WITH ALL FAULTS CONDITION, AND THE OBLIGATIONS AND LIABILITY OF SELLER HEREUNDER ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, AND CUSTOMER HEREBY WAIVES AND RELEASES SELLER (AND ANY REPRESENTATIVES OF SELLER) FROM ANY AND ALL OTHER WARRANTIES, AGREEMENTS, GUARANTEES, CONDITIONS, OBLIGATIONS, DUTIES, REPRESENTATIONS, REMEDIES OR LIABILITIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PARTS, ARISING IN CONTRACT OR IN TORT, WHETHER UNDER THEORIES OF NEGLIGENCE, STRICT NEGLIGENCE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTY AS TO AIRWORTHINESS, VALUE, QUALITY, CONDITION, OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER DEFECTS, (2) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (3) ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, DESIGN OR OTHER PROPRIETARY RIGHTS, AND (4) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, FOR LOSS OF USE OR DAMAGE TO ANY ENGINE OR AIRCRAFT OR ANY OTHER PROPERTY OR BODILY INJURY, FOR LOSS OF REVENUE OR PROFIT WITH RESPECT TO ANY SUCH PROPERTY, OR FOR LIABILITY OF CUSTOMER TO ANY THIRD PARTY OR FOR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER WITH RESPECT TO ANY PART SOLD HEREUNDER, EXCEPT IN THECASE OF SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Purchasing Agreement
These Standard Purchasing Conditions (“SPC”) apply to all purchase orders (“Order”) issued by KP Aviation, LLC (“KPA”) if there is no valid contract signed by both parties covering the Goods & Services of the Order. Where the context permits or requires, references in the SPC to “Goods & Services” means any work or goods provided by the Seller in accordance with terms and conditions of the present SPC. These SPC prevail over any other standard terms of business suggested by the Seller. Any conflicting terms in any of the Seller’s documents given to KP Aviation, LLC at any time are null and void. These SPC shall not be amended unless both parties do so in writing.
Unless approved in writing by KPA, the Seller shall not provide/supply/sell any PMA (Part Manufacturer Approval) parts nor subject the Goods & Services to any DER (Designated Engineering Representative) repairs. The use of any repair specification developed by the Seller that is outside the scope of the OEM (Original Equipment Manufacturer) or KPA specification, whether or not FAA or EASA approved, shall be subject to prior written authorization by KPA. All other material is guaranteed repairable and will be returned to Seller if deemed BER.
All items must be traceable to a certified source, OEM, last operator (121, 129, 135 or Foreign Operator) unless approved by KPA prior to shipment, matching those quoted. Supporting trace documentation must include complete back to birth trace for all LLP(s), NIS, removal tag(s) and/or teardown manifests, shop visit reports, shop packing slips and/or repair order to the shop and Material Certification naming the above mentioned source and the following: seller company name, source, condition, part number, serial number (if applicable), qty, NIS, signed and dated.
All goods ordered will be subject to inspection and acceptance at destination by KPA or its authorized representative within a commercially reasonable time.
Warranties are as follows unless different terms are agreed in writing with KPA. All Serviceable material will carry a minimum of a six (6) month warranty from ship date with current Authorized Release Certificate (ARC). All New, New Surplus and Overhauled material will carry a minimum of a one (1) year warranty from ship date with current Authorized Release Certificate (ARC). All As Removed (AR) material is guaranteed repairable (AR/GR) unless approved in writing by KPA authorized purchaser, and will be returned to Seller at Seller cost if repair exceeds agreed upon repair cap and/or is determined Unserviceable/BER.
KPA has the right to cancel the Order at any time, for any reason. KPA reserves the right to refuse any fees associated with the cancellation of an Order.
KPA reserves the right to charge Seller any additional cost/fees accrued due to Seller not following KPA shipping instructions provided.
The Seller shall defend, indemnify and hold harmless KPA against all damages, claims, costs and expenses (including attorney’s fees) arising out of or resulting from the Goods & Services provided under an Order, or from any act or omission from the Seller, its agents, employees or subcontractors or which otherwise arises as a result of the Seller’s performance of the Order.
***ALL MATERIAL IS SUBJECT TO KP AVIATION, LLC FINIAL INSPECTION UPON RECEIPT***
Customer’sInsurance
Quotations do not include insurance coverage for any Parts delivered pursuant to this Agreement. Customer shall, at its sole cost and expense, carry and maintain (or cause to be carried and maintained) insurances in respect of aircraft hull (or spares) coverage and aviation general legal liability insurance (including contractual liability) in respect of the Parts. Such insurances shall be in full force and effect at the time of Delivery and in types and amounts as would be carried by other companies engaged in the Customer’s industry. Such policies of insurance shall be primary with respect to the indemnities of Customer set forth herein and shall contain waivers of subrogation of the insurers in favor of the Seller Indemnitees. Customer shall provide to Seller certificates of insurance on or prior to the date of Delivery of any Parts pursuant to this Agreement in such amounts and on such terms as may be specified by Seller in the Quotation.
Indemnity
Customer hereby agrees to release, Indemnify, defend and hold Seller, its subsidiaries, affiliates and shareholders, and all of their respective officers, directors, members, managers, employees, agents, successors and assigns (collectively referred to as the “Seller Indemnitees“) harmless against any and all losses, liabilities, damages, costs, expenses, judgments, actions, proceedings, claims, damages, compensation, penalties or other liabilities (including reasonable attorneys’ fees) (“Claims”) resulting or arising (directly or indirectly) from: (a) property damage or injury to or death of any person and any other direct, indirect, incidental, consequential, economic, or statutory civil damages any of which arise out of or are in any way related to the provision of services or the sale of any Parts by the Seller Indemnitees, and/or (b) the use, operation, repair, maintenance, or disposition of Parts provided under any Purchase Order, whether or not arising from breach of contract,strict liability, or tort (including negligence), and/or (c) as a result of the breach by Customer of any of its obligations, representations, warranties or covenants made in connection with the transactions contemplated by this Agreement; provided however, Customer shall not be required to indemnify the Seller Indemnitees for claims or liabilities arising from the gross negligence or willful misconduct of any Seller Indemnitee. This indemnity shall survive and continue in full notwithstanding the termination of this Agreement.
Limitation of Liability
Seller’s lability on any claim of any kind including negligence, for any loss (including death) or damage arising out of or connected with, or resulting from this Agreement or the Quotation, for breach of statutory obligation or otherwise for any loss of profits (direct or indirect), business interruption, loss of sales, loss of use, loss of opportunity, loss of goodwill and loss of turnover and whether arising directly or indirectly out of or in consequence of any act, default or omission of the Seller, and the Seller shall not in any circumstances be liable for any Claims (whether direct, indirect or consequential), and any other remedy which would otherwise be available in law to the Customer is hereby excluded except to the extent that such exclusion is prohibited by law (in which event such Claim shall not exceed the Purchase Price received by Seller for such Part)..
Governing Law
(I) If Customer is an entity formed within the United States of America, this Agreement shall be governed and construed according to the laws of the State of Nevada, and (II) if Customer is an entity formed outside of the United States of America, this Agreement shall be governed and construed according to the laws of the State of
New York, in each case without reference to conflict of laws principles. Any disputes or claims shall be referred to and finally settled by the exclusive jurisdiction of the federal and state courts of the State of Arizona or the State of New York, respectively, or as otherwise agreed to in writing by the Parties. Customer agrees to pay all costs and expenses, including reasonable attorney’s fees incurred by Seller in any action to enforce its rights hereunder. Customer hereby waives; (a) the right to jury trial in any and all proceedings; (b) any and all objections to venue and inconvenient forum in the state and federal courts, referred to in this section and (c) any and all objections to service of process by certified mail, return receipt requested.
Export Compliance; Sanctions
The export and re-export of goods and related technical information under this Agreement are subject to the export laws of the United States of America. Customer shall be responsible for applying for, obtaining and maintaining all required export licenses and approvals and complying with all applicable export reporting requirements. Seller does not guarantee the issuance of such licenses or their continuation in effect once issued. Customer covenants that it will not, directly or indirectly, export or re-export any goods or technical information received from Seller to any destination if such export or re-export would violate the laws of the United States of America.
Further, Customer covenants that it will comply in all respects with all applicable laws, ordinances, rules, regulations and orders of all governmental authorities relating to the ownership, installation, operation, movement, marketing and maintenance of the Parts. To this effect, Customer acknowledges that the Parts are subject to U.S. Trade Control Laws and Customer shall not sell, transfer or lease the Parts to any person that is (and represents and warrants that Customer itself is not): (i) a target of U.S., European Union, United Kingdom, or other economic, financial or trade sanctions in force from time to time; (ii) named, identified or described on any blocked persons list, specially designated nationals list, prohibited persons list, or other official list of restricted persons with whom U.S., European Union or United Kingdom persons, or persons otherwise subject to the jurisdiction of the U.S., the European Union or the United Kingdom may not conduct business, including, but not limited to, restricted party lists published or maintained by (A) OFAC, (B) the U.S. Department of Commerce, (C) the U.S. Department of State, (D) the European Union or (E) Her Majesty’s Treasury of the United Kingdom; or (iii) owned or controlled by, or an actor on behalf of, any person described in clauses (i) or (ii).
It shall be a condition precedent to Seller’s obligations under this Agreement that: (a) all necessary export licenses and approvals required in respect of Customer’s business or the Delivery of any Parts hereunder shall be timely granted and continue in effect during the term of this Agreement; and (b) Customershall upon request execute and deliver to Seller a copy of the form titled “Export Compliance / End Use / End User Certification / Statement”; and (c) Customer shall upon request execute and deliver to Seller a copy of the form titled “Know Your Client Questionnaire”. Seller reserves the right to withhold Delivery of any Parts pursuant to this Agreement until such conditions have been satisfied to Seller’s satisfaction.
Customer agrees to indemnify and hold Seller harmless against any liability arising from any breach of Customer’s obligations under this Section.
Entire Agreement
This Agreement constitutes the entire agreement between the Seller and Customer and, taken together with
the Quotation, supersedes all previous oral and written agreements and commitments. Seller rejects any of Customer’s inconsistent conditions in purchase orders or however stated and such shall not be part of this Agreement, unless specific and explicit references to changes to this Agreement are made in writing by an authorized representative of Seller.
Confidentiality
Customer acknowledges that it will obtain confidential information provided as a result of this Agreement, including, without limitation, all provisions of this Agreement, the Quotation, drawings, specifications, schematics, formulae and any other information (whether oral, writted or otherwise) delivered by Seller to Customer during the course of performance of this Agreement (the “Confidential Information”). Confidential Information will not include information which is already in the public domain or which is already in Customer’s possession and not otherwise confidential or which was received from third parties having a right to disclose such information. Customer agreesto keep the Confidential Information strictly confidential and will not disclose nor permit the disclosure of nor use the Confidential Information for any purpose whatsoever, except as provided herein. Customer may disclose the Confidential Information to such of its officers, directors, attorneys, accountants, lenders, members, joint venture partners, or employees who are required to know the Confidential Information in the course of performance of this Agreement or their professional services (“Disclosees”). All Disclosees will be informed of the confidential nature of the Confidential Information and will, prior to obtaining access thereto, agree to keep this Confidential Information confidential in accordance with the terms of this Agreement. If so required, Customer may also disclose the Confidential Information in connection with the enforcement of this Agreement or pursuant to any valid court order, regulation or other lawful order or process compelling such disclosure but only after notifying Seller of such disclosure prior to its occurrence and limiting the required disclosure of Confidential Information to the maximum extent possible.
Severability
If any term, clause or provision contained herein is declared or held invalid or enforceable by any court of competent jurisdiction, such declaration shall not affect the validity or enforceability of any of the term, clause or provision hereof.
Survivability
If this Agreement expires, is completed, or is terminated, Customer shall not be relieved of those obligations contained herein. All the provisions will survive the termination.
Assignment
This Agreement (or anyQuotation) may not be assigned by either Seller or Customer withoutthe prior written consent of the other party.
Brokers
Customerrepresentsthat it has not engaged any agent or broker entitled to any compensation as a result of the transactions contemplated by this Agreement, and Customer agreesto indemnify the Seller Indemniteesfrom and against all Claims which arise or are attributable with respect to agents or brokers.
Expenses
Except as otherwise provided herein or in a Quotation, each of Seller and Customershall be responsible for the costs and expensesincurred by it in connection with the negotiating of theQuotation and the consummation of the transactions contemplated hereby, including attorneys’ fees and technical and/or appraisal costs.
Waivers.
The waiver of performance of any term of this Agreement in a particular instance shall not constitute a waiver of any subsequent breach or preclude either party from thereafter demanding performance thereof according to the provisions hereof.
Unenforceability
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.