Terms And Conditions Of Sales
Notwithstanding any other provision to the contrary, the following General Terms and Conditions of Sale shall apply to any sale of Products and Services (“Goods”) by Farwest Aircraft, Inc., as well as companies affiliated with Farwest Aircraft, Inc. (“Seller”). Any purchase order covering the sale of Goods shall be governed by these General Terms and Conditions of Sale and other written provisions mutually agreed upon, if any. Any oral understandings are expressly excluded. Buyer’s silence or acceptance or use of Goods constitutes its acceptance of these General Terms and Conditions of Sale. No Modification or addition to these General Terms and Conditions of Sale shall be effective unless agreed in writing and signed by an authorized representative of Seller. Seller does not accept any terms and conditions of Buyer that conflict with or deviate from these General Terms and Conditions of Sale, unless Seller has expressly approved their binding force in writing. In the event Buyer orders Goods from Seller and Seller delivers Goods to Buyer, these General Terms and Conditions of Sale shall apply to all such sales and transactions despite being aware of contrary or deviating terms and conditions of Buyer.
1.1 The prices provided in Seller’s quotations are ex works or ex warehouse at the choice of Seller without notice, and do not include additional and/or special packaging, crating, freight, postal charges, value insurance, or other expenses, unless otherwise negotiated and agreed upon, between Buyer and Seller. Additional and/or special packaging fee and other fees are charged at cost price. All prices are based on the quantities quoted and any change in the quantities may affect the price. The prices are in U.S. Dollars. This applies to any partial deliveries or express shipments also. The prices do not include the respective value added tax, sales, use, excise, or other taxes. Any such tax that Seller is required by law to collect will be added to the invoice price.
1.2 Quotations and Offers made by Seller are not binding, unless otherwise provided in the order acknowledgement. In case of cost increases after the order acknowledgement due to significant price increases of component part, material and/or outside process, Seller reserves the right to increase the prices accordingly. The revised price shall be agreed between Buyer and Seller. Upon request, Seller will provide reasonable and detailed explanations of these cost increases.
1.3 The prices for services of repair, calibration or upgrade(“Repairs”) are individually calculated in accordance with works and parts required. Therefore, Seller cannot estimate the price of Repairs until the product has arrived at Seller’s facility. Seller shall provide the price of Repairs as soon as the evaluation is completed. The minimum evaluation fee will be charged to Buyer if Buyer will not order Repairs after the evaluation.
2.1 Payment shall be made to Seller as directed by Seller and shall be due and payable as set forth on Seller’s invoice. Net 30 days, on approval of credit, or payment in advance shall apply unless other payment terms are agreed upon between Buyer and Seller in writing. Invoices are issued and paid in U.S. Dollars unless otherwise agreed upon.
2.2 The payment obligation has not been satisfied until Seller can freely access the full invoice amount.
2.3 In the event that payment for Goods is late, Seller has the option to charge the late fee. Seller is authorized to charge the late fee amounting 8% above the basic interest rate published as valid by the United States bank.
2.4 Credit Card payments are accepted and 3% of the invoice amount shall be added as a processing fee. Bills of exchange are not accepted and other payment method is subject to Seller’s approval in writing.
3. Delivery and Shipment
3.1 All scheduled delivery dates are estimates based on a normal workload. Seller shall use commercially reasonable efforts to meet the scheduled delivery date. If events of force majeure and unforeseeable impediments arise after the order acknowledgement has been provided, the scheduled delivery date shall be reasonably extended, even in case of a delay. In such a case, Seller shall use commercially reasonable efforts to minimize the delay. This also applies if these circumstances occur at subcontractors. Seller will not be liable for any damages, loss, fault, or expense arising out of delivery delays caused by or imposed acts of God, war, civil unrest, embargoes, natural disasters, fires, explosions, accidents, strikes, riots and government action, shortages of materials, parts, or supplies, subcontractor action.
3.2 Unless otherwise agreed upon, between Buyer and Seller, all shipments are ex works or ex warehouse and will be made on the account and at the risk of Buyer. Seller’s responsibility terminates at the time the shipment leaves Seller’s facility or warehouse, and any risk shall be transferred to Buyer. If the shipment is delayed due to Buyer’s reason, the risk shall be transferred to Buyer from the day of notification of readiness of the shipment. In this case, buyer shall bear all of the resulting third party storage and insurance costs if required.
3.3 In the event Seller will not receive written shipping instructions from Buyer despite Seller has asked Buyer several times, Seller has a right to ship freight collect to Buyer by any common carrier which Seller considers satisfactory or, if appropriate, in the opinion of Seller.
3.4 Seller shall not provide compensation for Goods that are lost or damaged during transportation unless other written provisions are mutually agreed upon.
4. Retention of Title
Title to Goods will remain with Seller until the full purchase price has been received by Seller. Buyer grants Seller a security interest in Goods until the full purchase price has been received by Seller.
5.1 Seller warrants Goods to be free from material defects in material and workmanship for one (1) year from the date on Certificate of Conformance except:
a) normal wear and tear, in particular on wear component parts.
b) when Goods have been improperly modified following delivery and/or subject to wrongful handling, storage, installation, operation, inspection or maintenance.
c) when Goods are purchased by Seller as a component part of Goods or resale item, except to the extent to which such Goods are covered by the warranty, if any, of the original manufacturer.
d) no warranty of a component part shall extend beyond the warranty period of Goods in which such component part is incorporated.
e) no warranty of Goods caused by engineering error in drawings, performed by the licensor, OEM and other third party.
5.2 Warrantee rights can only arise if Goods have a defect at the time of transfer of risk. Any claim by Buyer made pursuant to Seller’s warranty shall be made in writing. Buyer shall notify Seller, in writing, within fourteen (14) business days after receipt of Goods of appearance damage, functional defect, except for latent defects, or shortages; otherwise Goods shall be deemed accepted. Latent defects shall be reported in writing immediately upon their detection within the warranty period.
5.3 Seller is entitled to demand that Goods claimed to be defective are sent to Seller’s factory. Seller shall inspect Goods claimed to be defective and shall have the right to determine the cause of such alleged defect. In the event Seller confirms Goods claimed to be defective shall be repaired or replaced under warranty, Seller will cover the return transport costs on Goods repaired or replaced under warranty. Seller will not pay for any freight collect shipments to Seller.
5.4 No compensation shall be provided for the costs of repair work performed by third parties that is commissioned by Buyer without the explicit consent of Seller.
6.1 Seller’s liability under its warranty is expressly limited to the repair, replacement, or refund of the invoice price of Goods, which prove to be defective in materials or workmanship within a period of one (1) year from the date on Certificate of Conformance. The repair, replacement, or refund shall be at Seller’s sole election. Seller’s obligation to repair or replace defective Goods or refund the invoice price constitutes agreed and liquidated damages for any breach of warranty by Seller.
6.2 Seller shall be liable for damages according to the statutory provisions in cases of;
a) in the event of willful intent,
b) in the event of gross negligence on the part of executive bodies or executive management,
c) in the event that Seller concealed with intent to deceive, and fraudulent concealment of a defect,
e) in the event of culpable injuries to life, body or health, which Seller is responsible for.
In the event of a culpable breach of material contractual obligations, Seller shall be liable even in the event of gross negligence on the part of non-executive employees and in the event of simple negligence, although in the latter case, this shall be limited to the contract-typical, reasonably predictable damage.
7. Cancellations and Return of Goods:
No purchase order with respect to which Seller has issued or indicated a sales acknowledgement may be cancelled or the manufacture of Goods thereunder suspended after the date of the sales acknowledgement without the sole and express written consent of Seller. Upon cancellation or suspension at the request of Buyer, and acceptance by Seller, Buyer shall reimburse Seller for all expenditures incurred by Seller, including, but not limited to, material used, labor and engineering services, a proportionate share of direct manufacturing, engineering, selling, general and administrative expenses. In the event the cancellation is accepted after the delivery of Goods, an inspection and restocking charge on returned Goods, calculated based on type of Goods, will be required at Seller’s option. No Goods shall be returned to Seller without prior written authorization from Seller.
Each provision of these General Terms and Conditions of Sale is intended to be severable. If any term or provision hereof or any portion thereof, or the application thereof to any entity or circumstance shall be determined by a court of competent jurisdiction to be illegal or unenforceable for any reason whatsoever, such term, provision or application thereof shall be severed here from and shall not affect the validity of the remainder of these General Terms and Conditions of Sale or the application of such term or provision to any other entity or circumstance.
a) None of these General Terms and Conditions of Sale herein may be amended, modified, superseded, or otherwise altered except by a written instrument, signed by an authorized officer of Seller. Each shipment received by Buyer from Seller shall be deemed to be upon these General Terms and Conditions of Sale, except as they may be amended, modified, superseded or otherwise modified in a separate written agreement between Buyer and Seller.
b) These General Terms and Conditions of Sales shall be governed by and construed in accordance with the laws of the State of Washington, without regards to the principles of conflicts of law. Buyer and Seller consent to jurisdiction under the state and federal courts within the state of Washington, unless otherwise stipulated in a separate agreement between Buyer and Seller.
c) The submission of a quotation by Seller in response to Buyer’s request does not constitute an expression of acceptance of any term or condition which may have been set forth in Buyer’s request. These General Terms and Conditions of Sales are the only terms and conditions applicable to the sale of Goods described on the face hereof notwithstanding prior, or post sale, references.
d) Any additional or different terms or conditions of sale set forth in the purchase order or other communication from Buyer are shall not be effective nor binding unless assented to in writing by an officer of Seller.
e) Seller reserves the exclusive right to assign the proceeds of any order to a third party for any reason whatsoever.
f) Seller is entitled to assign claims that arose from its business relationships. Seller is also entitled to hand the relating data on to the assignee provided that the assignee undertakes to keep the same confidentiality as Seller.
g) Buyer and Seller shall not be liable for the non-performance or delayed performance due to causes beyond its reasonable control including, but not limited to, acts of God, war, civil unrest, embargoes, natural disasters, fires, explosions, accidents, strikes, riots and government action, shortages of materials, parts, or supplies, subcontractor action.