|
|||
|
|
|
SUPPLIER termS & conditions
TEXAS AERO ENGINE SERVICES LIMITED STANDARD TERMS AND CONDITIONS
EXCEPT AS OTHERWISE AGREED IN WRITING, THESE STANDARD TERMS AND CONDITIONS FOR PURCHASE OF AVIATION REPAIR OVERHAUL SERVICES ("AGREEMENT"), WILL GOVERN THE PURCHASE BY TEXAS AERO ENGINE SERVICES LIMITED, ("TAESL") OF AVIATION REPAIR OR OVERHAUL SERVICES FROM THE SUPPLIER IDENTIFIED IN TAESL's ORDER ("ORDER"), TOGETHER WITH ANY SPECIAL CONDITIONS SET FORTH IN SUCH ORDER. 1. Services. Subject to the terms and conditions of this Agreement, TAESL agrees to purchase and Supplier agrees to provide the repair, overhaul or modification services (the "Services") for the components, equipment and parts (the "Articles"), both as described in the Order. Supplier acknowledges that this Agreement is not exclusive and that TAESL may, at its option, engage another contractor to perform, or itself perform, similar services. 2. Charges. In consideration of Supplier's performance of the Services, TAESL shall pay or cause to be paid to Supplier the charges set forth in the Order. At or following completion of the Services, Supplier shall submit to TAESL an invoice for the performance of the Services to the invoice address identified in the Order, or such other place as TAESL may advise Supplier in writing. Payment to Supplier shall be made in U.S. Dollars to Supplier’s payment address identified in the Order, and shall be paid within thirty (30) days following TAESL's receipt of a properly documented invoice. In the event that TAESL in good faith disputes any invoiced amount, TAESL will notify Supplier in writing within thirty (30) days following its receipt of the invoice of any disputed amount and submit payment for all undisputed amounts in accordance with this Section. The unpaid disputed amounts will be resolved by mutual negotiations of the parties. No payment by TAESL shall be deemed an acceptance of the Services and TAESL shall have the right to recover any amounts previously paid in error. Supplier shall keep full and accurate records of all costs and labor billed in connection with performance of the Services and shall make such records available for audit by TAESL until three (3) years following the completion of the Services. Supplier shall further ensure all subcontractors performing Services hereunder will likewise keep such records and make them available to TAESL for audit upon request for up to three (3) years following their performance of any Service. 3. Termination for Convenience. TAESL reserves the right, in its sole and absolute discretion, to terminate an Order at any time with ten (10) days prior written notice to Supplier. Upon expiration or earlier termination of an Order, TAESL will instruct Supplier whether to complete or return any Service in process. If work in progress is returned to TAESL, Supplier will invoice TAESL only for that portion of the Service actually completed. 4. Supplier Representations. Supplier hereby represents and warrants to TAESL that: (a) Supplier is and will remain the holder of the FAA Repair Station Certificate identified in the Order; (b) Supplier is authorized under 14 C.F.R. Part 121/145 to perform the Services; (c) Supplier has and will maintain during the term of this Agreement, a Drug Testing Program under its administration and control that has been approved by the FAA, in full compliance with FAR Part 121 Sections 121.429, 121.455 and 121.457; (d) Supplier is duly organized and validly existing and has the power and authority to execute and deliver, and to perform its obligations under this Agreement and all Orders issued in connection herewith; (e) Supplier's performance of the Services is duly authorized by all necessary action and do not contravene any provision of its certification of incorporation or by-laws (or equivalent constituent documents) or any law, regulation or contractual restriction binding on or affecting Supplier or its property; and (f) these terms and conditions Agreement is Supplier's legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or in law). 5. Turn Times. Supplier shall perform the Services within the turn times set forth in the Order. Supplier acknowledges that time is of the essence in performance of the Services. Failure to meet the turn times will subject TAESL to significant damages that are difficult, if not impossible, to determine under the circumstances existing at the time this Agreement is made. Accordingly, in addition to all other remedies available to TAESL hereunder, Supplier agrees to pay TAESL liquidated damages in an amount equal to that shown in the Order for each day any Service is delayed beyond the scheduled redelivery date unless such delay is consented to by TAESL in writing or results from an Excusable Delay, as defined herein. 6. Excusable Delays. Supplier shall be excused from performance of the Services to the extent that such performance is delayed by reasons beyond the reasonable control of Supplier (an "Excusable Delay"), provided the Excusable Delay is not occasioned by the fault or negligence of the Supplier. Delays by Supplier's subcontractors shall in no event be an Excusable Delay. Any Excusable Delay shall last only as long as the event remains beyond the control of the Supplier and only to the extent that it is the primary cause of the delay. Supplier shall use its best efforts to minimize the effects of any Excusable Delay and shall notify TAESL immediately upon the occurrence of such an event. If the Excusable Delay lasts in excess of three (3) days, TAESL shall have the right to immediately terminate this Agreement upon written agreement or employ third parties to perform the Services. 7. Delivery / Redelivery. All Articles upon which the Services are to be performed shall be delivered by TAESL, at its sole cost and expense, to Supplier's repair facility. Upon completion of the Services, Supplier shall redeliver the Articles to TAESL at the F.O.B. Point designated in the Order in the same or comparable shipping container to that in which the Articles were received by Supplier. Supplier shall use any carrier designated by TAESL. 8. Performance Standards. Supplier shall perform the Services in accordance with the relevant specifications described in the Order. TAESL shall have the right to change the specifications from time to time as it deems necessary; provided, however, any change affecting the cost of any parts required to perform the Services by more than five percent (5%) or in a change of five percent (5%) or more in the number of man-hours required to perform any Service, shall entitle Supplier to an adjustment in the charge and turn time for such Service, as agreed upon by the parties in writing. Any deviation from the specifications must have the prior written authorization of TAESL. 9. FAA Compliance. Supplier warrants that Services performed hereunder will comply with all applicable laws, including without limitation, all Federal Aviation Administration ("FAA") orders or regulations and any other United States Regulatory Agency or body having jurisdiction over the Services. Supplier shall at all times meet the technical and operational requirements of an FAA Certificated Repair Station. 10. Provision and Management of Parts. Unless provided otherwise in the Order, Supplier shall provide all parts and materials necessary for the performance of the Services. Supplier shall be responsible for the timely procurement of such parts and materials to ensure completion of the Services in accordance with the terms and conditions of this Agreement. All parts used by Supplier shall be secured only from sources which can trace their origin to the manufacturer and be of a part number and modification status as listed and identified in TAESL's applicable Illustrated Parts Catalog. Any deviation from the applicable Illustrated Parts Catalog must have written authorization via an Engineering Authorization from TAESL's Engineering Group prior to the use of such part. Material certification slips, where applicable, shall be retained by Supplier and copies supplied with the parts upon installation. At no cost to TAESL, Supplier shall maintain a material management organization staffed to handle the receiving, inventory, warehousing, quality control, inspection, storage, transportation, packaging, issuance and disposition of parts. In that regard, Supplier shall accumulate, store and assume full responsibility for all parts supplied by TAESL, unserviceable recoverable parts and scrap material and shall provide TAESL with a monthly inventory of such items. TAESL shall give Supplier, at least quarterly, directions on the disposition of all such parts and materials. 11. Title and Risk of Loss. Title to Supplier furnished parts, material and associated labor shall pass to TAESL upon assignment to an Article. From receipt of any Article until redelivery as provided herein, Supplier shall be fully responsible for any loss or damage to an Article. 12. Monitoring of Work. TAESL shall have the unrestricted right to monitor performance of the Services in progress. For that purpose, Supplier shall permit TAESL's agents or employees to enter Supplier's facilities when the Services are being performed. Supplier shall impose an identical requirement on any subcontractor performing Services as permitted hereunder. 13. Recordkeeping Requirements. Supplier shall maintain, and shall require all its subcontractors to maintain, all records in connection with the Services as required by TAESL and the FAA. Supplier shall supply to TAESL all such records, including those maintained by subcontractors, upon redelivery of Article. In particular, and not by way of limitation, Supplier shall return with each Article upon which Services are performed, a properly executed FAA Form 8130-3 Airworthiness Approval Tag or equivalent including a statement of work performed. Supplier shall also obtain and provide to TAESL, proper approval for any repairs that require OEM or FAA substantiation. 14. Use of Subcontractors. Supplier may have any of the Services performed by subcontractors only after first obtaining the prior written consent of TAESL. TAESL reserves the right to require Supplier refrain from the use of a particular subcontractor. Nothing in this Agreement shall create any contractual relationship between TAESL and any such subcontractor and no subcontract shall relieve Supplier of its obligations hereunder should the subcontractor fail to perform in accordance with the provisions of this Agreement. 15. Warranties. With respect to the Services performed for TAESL hereunder, Supplier warrants that the Services will (i) conform in all respects to the requirements of this Agreement and the applicable Order, (ii) be free from all defects, whether patent or latent, in materials and workmanship for the period of twelve (12) months or 3500 hours whichever is last from reinstallation (iii) be suitable for the purposes intended whether expresses or reasonably implied, and (iv) be free and clear from all liens, charges and encumbrances of any kind whatsoever resulting from Supplier's performance of the Services. To the extent any parts are covered by any warranty made by the manufacturer or supplier of such parts, Supplier hereby assigns to TAESL all of Supplier's right, title and interest to such warranties. Supplier's liability for breach of the warranties set forth above (a "Defect") shall be, at TAESL's option, reservicing, repairing or replacing all or any portion of the Defect, and to the repair or replacement of any other item of equipment which has been returned to Supplier and, in the reasonable determination of TAESL and Supplier, has suffered damages caused by the Defect in the warranted part or Services. Supplier shall further be responsible for (i) reasonable transportation charges incurred by TAESL for return of Articles containing a Defect and any other Articles suffering damage as a result of such Defect, and (ii) the expenses incurred by TAESL in the removal and reinstallation of any such Articles. At TAESL's option, it may repair, or obtain the repair of, any Defect and any damaged Article resulting therefrom. In that event, Supplier shall reimburse TAESL all costs and expenses incurred in connection with the repair as substantiated by TAESL to Supplier. 16. General Indemnification. Supplier hereby releases and agrees to indemnify, defend, and hold harmless TAESL, its parent company, subsidiaries and affiliates, and their respective officers, directors, agents and employees (collectively herein the "Indemnified Parties") from any and all liabilities, damages, losses, expenses, claims, suits or judgments (including without limitation all attorney's fees, costs, and expenses in connection therewith or incident thereto), for the death of or bodily injury to any person (including, without limitation Supplier's employees) and for the loss of, damage to or destruction of any property whatsoever in any manner arising out of the performance of the Services, except to the extent such injury, death or damage arises directly out of the negligence or willful misconduct of an Indemnified Party. 17. Intellectual Property Protection. Supplier shall indemnify and hold the Indemnified Parties harmless from all liabilities, damages, losses, expenses, claims, suits and judgments (including without limitation all attorney’s fees, costs, and expenses in connection therewith or incident thereto) which may be incurred on account of any actual or alleged infringement of any patent, copyright, trademark, trade name or trade secret with respect to the Services provided hereunder and will, at its expense, defend any action, suit or claim in which such infringement is alleged. In the event any Services are held in such suit to be infringing and their use enjoined or limited in any manner, Supplier shall at its expense, either (a) procure for TAESL the right to continue use of such Articles or Services, (b) replace the same with non-infringing Articles or Services satisfactory to TAESL, or (c) modify the Articles or Services so they become non-infringing. Provided, such indemnification shall not apply to any material or process or part thereof of TAESL's design or specification, or used at TAESL’s direction. 18. Independent Contractor. Supplier is an independent contractor and personnel used or supplied by Supplier in performance of this Agreement shall be and remain employees or agents of Supplier, and under no circumstances are such personnel to be considered employees or agents of TAESL. Supplier shall have the sole responsibility for supervision and control of its personnel. 19. Insurance. Throughout the term of this Agreement, Supplier shall maintain in full force at its expense, the insurance coverage with limits of liability sufficient to cover the transactions herein or as specified in the Order by TAESL. Supplier shall furnish TAESL with insurance certificates which: (a) identifies the Indemnified Parties as additional insureds; (b) indicates the insurer(s) has accepted and insured the specific liabilities assumed by the Supplier under this Agreement, including without limitation, the indemnification and hold harmless provisions herein; (c) contains the insurer(s) waiver any rights of subrogation they may or could have against any of the Indemnified Parties; (d) provides that such insurance is primary without right of contribution from any insurance carried by the Indemnified Parties; (e) provides such insurance shall not be invalidated with respect to any of the Indemnified Parties by any action or inaction of Supplier, and shall insure each of the Indemnified Parties regardless of any breach or violation of such policy by Supplier; (f) includes the insurer’s commitment to provide TAESL with at least thirty (30) days prior written notice before any adverse change in the coverage of such policies; and (g) substantiates that the insurance extends to include loss or damage to aircraft. 20. Confidentiality. TAESL and Supplier each agree that all information communicated to each other in connection with this Agreement will be received in strict confidence and will not be disclosed, transferred, used or otherwise made available by the party receiving such information (the "Recipient") to any third party without the prior written consent of the party disclosing the information (the "Disclosing Party"). In that regard, each party agrees to exercise care that is at least equal to the care it uses to protect the confidentiality of its own confidential and proprietary information of similar importance to prevent the disclosure to outside parties or the unauthorized use of such information. This Section shall not be violated by disclosure of information which (a) at the time of disclosure is publicly available or becomes available through no act or omission of the Recipient, (b) is disclosed to the Recipient by a third party which did not acquire the information under an obligation of confidentiality, (c) can be shown by credible evidence to have already been in the possession of the Recipient at the time of disclosure hereunder, or (d) is disclosed as required by court order or as otherwise required by law, on the condition that notice of the requirement for such disclosure is given to the Disclosing Party prior to making any disclosure and the Recipient cooperates in resisting the requirement for such disclosure as the Disclosing Party may reasonably request. In the event either party violates or threatens to violate the provisions of this Section, the other party shall be entitled to obtain from a court of competent jurisdiction preliminary or permanent injunctive relief, in addition to any other remedies available at law or in equity. Supplier expressly agrees any records provided in connection with the Services may be disclosed by TAESL in connection with the sale or lease of any of its aircraft of as requested by the FAA. 21. Event of Default and Remedies. The following events shall constitute non-exclusive events of default: (a) If either party shall fail in the performance of any of the obligations contained in this Agreement or any Order, which failure shall continue uncured for a period of thirty (30) days following written notice from the other party; (b) If either party shall file a voluntary petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any reorganization, composition, readjustment, liquidation or similar relief for itself under any present or future statute, law or regulation of the United States or shall seek or consent to or acquiesce in the appointment of any trustee, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; (c) If a petition shall be filed against either party seeking any reorganization, composition, readjustment, liquidation or similar relief under any present or future statute, law or regulation of the United States and shall remain undismissed or unstayed for an aggregate of ninety (90) days (whether or not consecutive), or if any trustee, receiver or liquidator of either party is appointed, which appointment shall remain unvacated or unstayed for an aggregate of ninety (90) days (whether or not consecutive); or (d) If any representation or warranty made by any party herein or made in any statement or certificate furnished or required hereunder, or in connection with the execution and delivery of this Agreement proves untrue in any material respect as of the date of the issuance or making thereof. Upon the occurrence of any Event of Default, the non-defaulting party shall be entitled to terminate this Agreement or any Order and shall further be entitled to all remedies under applicable laws, which remedies shall be cumulative and not exclusive. 22. Notices. Unless otherwise specified by the parties, all notices, approvals, requests, consents and other communications given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given when received if hand-delivered, sent by telex, sent by overnight courier or sent by United States certified or registered mail, addressed to the notices addresses set forth in the Order, or to such other persons or addresses as may be subsequently specified by either party in writing. 23. Assignment. This Agreement shall inure to the benefit of and be binding upon each of the parties and their respective successors and assigns, but neither the rights nor the duties of either party under this Agreement may be voluntarily or involuntarily assigned, in whole or part, without the prior written consent of the other party. 24. Change of Control. TAESL shall have the right, exercisable in its sole discretion, to immediately terminate this Agreement upon any Change of Control of Supplier. Supplier shall notify TAESL at least thirty (30) days before any such Change of Control, subject to the requirements of applicable law and TAESL's entering into a customary Confidentiality Agreement with respect of any such disclosure. For purposes of this section, a "Change of Control" means any transaction in which thirty-five percent (35%) or more of the capital stock or assets of the Supplier directly or indirectly changes hands. 25. Governing Law/Forum. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED ACCORDING TO THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS. ANY SUIT, ACTION OR PROCEEDING AGAINST SUPPLIER OR AMERICAN WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS, COUNTY OF TARRANT, OR IN THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN DISTRICT OF TEXAS, AND SUPPLIER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING. SUPPLIER FURTHER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT IN THE COURTS LOCATED IN THE STATE OF TEXAS, COUNTY OF TARRANT AND THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 26. Merger. This Agreement sets forth the entire agreement of the parties and shall supersede any previously executed agreements or oral understandings between the parties or any representations, claims or other statements not contained herein which relate to the subject matter of this Agreement. 27. Savings Clause. If any provision of this Agreement is declared unlawful or unenforceable as a result of final administrative, legislative or judicial action, the parties agree that this Agreement shall be deemed to be amended to conform with the requirements of such action and that all other provisions herein shall remain in full force and effect. 28. Waiver Clause. No failure or delay by either party in requiring strict performance of this Agreement and no previous waiver or forbearance of the terms of this Agreement by a party hereto and no course of dealing, shall in any way be construed as a waiver or continuing waiver of any provision of this Agreement. 29. Survival. Notwithstanding anything herein to the contrary, Sections 2, 15, 16, 17, 20 and 25 shall survive the expiration or termination of this Agreement. ITEMS REQUIRED IN ORDER TEMPLATE
|
|
|||
 |
Date: May 30 , 2002 Rev 1