Standard Terms and Conditions of Sale
1. DEFINITIONS:
“GE Aviation” shall mean GE Aviation Czech s.r.o, trading as Walter Aircraft Engines, a division of GE Aviation, a corporation registered and validly existing in the Czech Republic and whose registered seat is Prague 9, Beranovych 65, Postal Code 199 02, Prague, Czech Republic.
“Customer” shall mean the person(s) or company that purchases Goods/Equipment from GE Aviation pursuant to any Order.
“Order” shall mean the agreement between GE Aviation and the Customer (individually “Party” and collectively “the Parties”) for the sale and purchase of the Goods/Equipment, including these Standard Terms and Conditions of Sale herein and any contemporaneous writing, signed by both Parties, and firmly attached hereto.
“Goods/Equipment” shall mean all components, spare parts, goods, services, equipment or materials of any kind which are supplied, modified, repaired or overhauled by GE Aviation under any Order.
“Losses” shall mean any and all losses, claims, damages, liabilities, expenses, including without limitation special, consequential, loss of profit, incidental, resultant or indirect damages (including without limitation, loss of use, revenue, profit and good will), future or exemplary damages.
2. ACCEPTANCE: Acceptance is strictly limited to the terms set forth in any Order. The acceptance of any Order includes the acceptance of these Standard Terms and Conditions of Sale herein. None of the terms provided herein may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of GE Aviation and delivered by GE Aviation to the Customer. The Order applies to spares, repairs and overhauls, as appropriate.
3. PURCHASE PRICE: Prices cited herein are based on current costs and are subject to reasonable adjustment on or after the date of acceptance of any purchase order to meet a rise or fall in such costs, as computed on the date of delivery.
4. PAYMENT:
(A) Payment in full of the purchase price shall be made in the currency contained in the acknowledgement of Order, and shall be paid in full prior to delivery of the Order Goods / Equipment in accordance with Section 6 - Delivery.
(B) Punctual payment as stipulated herein is of the essence for the Order. When any sum owed by Customer to GE Aviation under the Order is overdue, GE Aviation may, without notice to Customer, either:
(i) cease the supply of further Goods/Equipment under the Order without liability for any Loss to Customer until such sum, together with such interest as may be due thereon, is paid; or
(ii) terminate the Order and any other agreements between GE Aviation and Customer, whether or not any sums are due for payment by Customer thereunder, without liability on the part of GE Aviation. Customer shall pay GE Aviation immediately all sums due and outstanding under all such agreements with respect to Goods/Equipment, services, components, parts, and other materials supplied or ordered in partial execution of the agreements, together with all overhead and other costs incurred by GE Aviation as a result of such termination.
(C) No defect in the Order Goods/Equipment shall operate to interfere with the terms of payment. If payment is not made as provided above, Customer shall thereby be deemed to have waived the warranties (merchantability, fitness or otherwise, whether express or implied) provided in Section 8 hereunder. GE Aviation may demand different terms of payment from those specified on the face of the Order, whenever it reasonably appears that Customer’s financial condition requires such changes, and may demand assurance of the Customer’s ability to pay whenever it reasonably appears that such ability is in doubt. Such demand shall be in writing and GE Aviation may, upon making such demand, stop production and/or suspend shipments hereunder.
(D) If Customer is in default of any payment obligation, GE Aviation is, without reminder and prejudice to any other rights, entitled to charge interest at a rate of 1.5 times the legal interest for any outstanding sum, beginning with any due date of payment.
5. LIENS AND TITLE:
(A) Customer hereby grants to GE Aviation a first priority security interest in any property owned by the Customer (including Customer’s beneficial rights to property leased by Customer) in the possession of GE Aviation or any of GE Aviation’s affiliates, at any time (together with all proceeds, products, rents, replacements, additions, accessions, substitutions and profits of or from any and all of the foregoing and, to the extent not otherwise included, all payments under insurance, or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to any of the foregoing), to secure all amounts owed by Customer to GE Aviation under the Order, including, without limitation, the amount of all sums and expenses (including, without limitation, reasonable attorneys’ fees, court costs and collection, legal and receivers’ expenses) advanced or incurred by GE Aviation in connection with the protection of the security interests herein granted (collectively, the “Secured Obligations”).
(B) In the case of repairs or overhauls performed pursuant to the Order, Customer hereby grants GE Aviation a first priority security interest in all Goods/Equipment retained in possession of GE Aviation from time to time upon which any repair or overhaul services are performed by GE Aviation (together with all proceeds, products, rents, replacements, additions, accessions, substitutions and profits of or from any and all of the foregoing and, to the extent not otherwise included, all payments under insurance, or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to any of the foregoing). Customer further acknowledges and agrees that, in addition to the security interest and lien expressly granted by Customer to GE Aviation hereunder, GE Aviation shall have a lien on the Goods/Equipment retained in possession of GE Aviation to the extent otherwise provided by law. Customer acknowledges that the lien (whether granted by Customer or through the operation of law) for repairs or overhaul shall be for the full value of such work (including, without limitation, the amount of all sums and expenses, including, without limitation, reasonable attorneys’ fees, court costs and collection, legal and receivers’ expenses, advanced or incurred by GE Aviation in connection with the protection of the security interests herein granted), and shall be superior to any lien or interest in favour of Customer, its parents, affiliates, or subsidiaries, or any other person who has knowledge of this Order. To the extent that GE Aviation maintains possession of Goods/Equipment under repair, Customer agrees that GE Aviation is a secured creditor of Customer and has all the rights of a secured creditor. Upon the occurrence of any default by Customer hereunder, GE Aviation may, at its option, and without notice to or demand on Customer and in addition to all rights and remedies available to GE Aviation under this Order, foreclose or otherwise enforce GE Aviation’ security interest hereunder in any manner permitted by law, or provided for in the Order.
(C) With respect to Goods/Equipment sold pursuant to the Order, Customer agrees and acknowledges that GE Aviation shall retain title to such Goods/Equipment, unless and until all payment for Goods/Equipment has been made and all other covenants and agreements of the Order have been performed in full. Accordingly, Customer agrees that it will not suffer or permit any lien or encumbrance to be established that affects the title to the Goods/Equipment sold by GE Aviation pursuant hereto until GE Aviation has been paid in full. Customer agrees that, in the event of Customer’s insolvency, or in the event that any petition is filed by or against Customer under Chapter 7 or Chapter 11 of the Bankruptcy Code, GE Aviation may, at its discretion, recover all Goods/Equipment sold pursuant to this Order and/or seek damages or costs under applicable laws.
(D) Customer agrees that at any time and from time to time Customer will promptly make, execute, endorse, acknowledge, file and/or deliver all further instruments and documents, and take all further action, that GE Aviation may reasonably deem to be necessary or desirable, or that GE Aviation may reasonably request, in order to perfect and protect any security interest granted or purported to be granted by Customer or to enable GE Aviation to exercise and enforce its rights and remedies hereunder. Without limiting any rights or powers granted by the Order to GE Aviation, Customer hereby appoints GE Aviation’s attorney in fact, with full authority in the place and stead of Customer and in the name of Customer, GE Aviation or otherwise, from time to time but only upon the occurrence of a default by Customer hereunder, to take any action and to execute any instrument which GE Aviation may deem reasonably necessary to accomplish the purposes of the Order. Customer acknowledges that the foregoing grant of power of attorney is coupled with an interest and is irrevocable.
6. DELIVERY:
(A) Unless otherwise agreed to in writing, GE Aviation shall deliver the Order Goods/Equipment ex-works (Incoterms 2000), at the GE Aviation Prague facility. GE Aviation shall use reasonable efforts to make timely delivery but shall be excused from any delays arising out of causes beyond its reasonable control. Any specific delivery dates that may be stated are approximate. GE Aviation shall, under no circumstances, be liable for any Losses, for delays, or failure to give notice of delay, whether or not caused by or resulting from GE Aviation negligence. Customer agrees not to make such claim on GE Aviation.
(B) If proper tender of the Goods/Equipment is made and completion of delivery is prevented through no fault of GE Aviation, GE Aviation may specify a reasonable alternative place of delivery. Customer agrees that all costs of storage and transport incurred following an initial attempt at delivery are hereby allocated to and imposed upon Customer, and shall be added by GE Aviation to the sale price. Delivery may at any time be withheld by GE Aviation pending payment of any sum due from the Customer to GE Aviation under the Order or any other agreement. GE Aviation will return Goods/Equipment via the incoming method unless an alternative method has been indicated on the purchase order or a change authorized by the Customer representative.
7. STORAGE FEES: A storage fee will be applied monthly up to the maximum allowed by law on all repaired and overhauled units if delivery is not taken with five (5) days of notification.
8. WARRANTIES:
(A) GE Aviation warrants that the Goods/Equipment, including all Goods/Equipment overhauled and certified as airworthy by GE Aviation, shall: (1) conform to applicable drawings and specifications; and (2) be free from defects in workmanship, whether the work was performed by GE Aviation or by its approved subcontractor. Note: new finished parts, incorporated at repair or overhaul, are covered by the component manufacturer’s separate warranty, which is passed on to the Customer.
(B) Unless otherwise agreed to in writing, this Warranty shall commence upon delivery of the Goods/Equipment to Customer or operator, whichever occurs first, and continue for a period of 6 months after such acceptance. If the Customer discovers within this period a failure of the Goods/Equipment to conform to drawings or specifications or a defect in workmanship, it must notify GE Aviation in writing within forty-five (45) days of discovery. Notification of such discovery shall be made on GE Aviation Warranty claim form, duly completed by the Customer and shall describe the nature of the defect and the manner in which the defect became apparent in sufficient detail to indicate that the defect is covered by this Warranty. The notification shall also state the date of delivery to the Customer, proof of purchase from GE Aviation, the date of removal of the Goods/Equipment in question, the number of intervening flying hours and flight cycles where applicable, and the number of aircraft involved.
(C) Any Goods/Equipment alleged to be defective and covered by this Warranty shall be identified, properly packaged, and returned prepaid to GE Aviation or as otherwise directed by GE Aviation. Within a reasonable time after proper notification, GE Aviation shall correct any failure of the Goods/Equipment to conform to specifications or drawings or defects in workmanship, with either new or used replacement parts. If the Goods/Equipment is proved to GE Aviation’s satisfaction to be defective and covered by this Warranty, such repair or replacement shall be made by GE Aviation without charge. GE Aviation will also pay one-way packing and transportation charges but shall not be responsible for any labour costs incurred in removal and reinstallation. The original duration of this Warranty shall continue for those parts not replaced. For those parts repaired or replaced, the original Warranty shall be renewed to begin running from the date of the repair or replacement. These remedies are the exclusive remedies of Customer or operator, as the case may be, for breach of this Warranty.
(D) This Warranty shall not extend to the following Goods/Equipment:
(i) Normal wear and tear of Goods/Equipment;
(ii) Goods/Equipment that has been subjected to any alteration, modification, or repair without prior authorization by GE Aviation;
(iii) Goods/Equipment subjected to experimental running or any type of operation or use other than that for which the Goods/Equipment is designed;
(iv) Goods/Equipment from which GE Aviation’s and/or vendor’s trademark or serial number has been altered, removed, or obliterated without GE Aviation’s written permission, excluding any alteration, removal, or obliteration directly caused by accident or mishap to the aircraft on which such Goods/Equipment are installed at the time of any such accident or mishap;
(v) Goods/Equipment installed on an aircraft or its systems, where the aircraft is not operated or maintained in accordance with the aircraft system manufacturer’s or GE Aviation’s written instructions, and all standard practices issued by the applicable aviation authorities of any country in which the aircraft is operated, and/or has been operated, subsequent to its involvement in an accident resulting in “substantial damage” as such term is now defined in the Safety Investigation Regulations of the United States of America’s National Transportation Safety Board; or
(vi) Goods/Equipment that has been in storage or immobilized for one year from the date of acceptance by the Customer or operator, whichever occurs first.
For the purpose of this Warranty, Goods/Equipment shall not be regarded as defective merely because some modification or alteration is required to be made by an Airworthiness Authority after delivery of the Goods/Equipment.
(E) GE AVIATION MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE; AND THE EXPRESS WARRANTY SET FORTH IN THIS ARTICLE IS IN LIEU OF ANY SUCH WARRANTY AND ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF GE AVIATION.
(F) FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8, “GE AVIATION” SHALL BE DEEMED TO INCLUDE GE AVIATION, ITS SUBSIDIARIES, AND THEIR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, AND SUPPLIERS OF ALL OF THEM. GE AVIATION SHALL HAVE NO LIABILITY ARISING OUT OF THE ORDER IN EXCESS OF THE AMOUNT OF THE ORDER. IN NO EVENT SHALL GE AVIATION 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 GE AVIATION HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NOR SHALL GE AVIATION BE RESPONSIBLE FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY.
(G) This Warranty is non-transferable and is applicable only to the original Customer or operator of the supplied Goods/Equipment.
(H) This Warranty shall not be extended, altered or varied except by written instrument executed by GE Aviation.
(I) This Warranty shall be null and void if the warranted Goods/Equipment is disassembled or tampered with in any way without the written permission of GE Aviation.
(J) Any official action or legal proceeding for breach of this Warranty must be commenced within twelve (12) months after acceptance of the Goods/Equipment.
9. TRADEMARKS/COPYRIGHTS: GE Aviation makes no warranty that the Order Goods/Equipment are free from, and shall not be liable to Customer for, infringement of the intellectual rights (including patents, trademarks and copyrights) of others, and Customer agrees to assume all risks associated therewith. Customer agrees to hold GE Aviation harmless against any claim for infringement arising out of compliance with Customer’s drawings, specifications, requirements or instructions.
10. INDEMNITY AND LIMITATIONS OF LIABILITY:
(A) Customer shall defend, indemnify, and hold harmless GE Aviation and its affiliates and their respective officers, partners, directors, employees, agents, successors, and assigns from and against any Losses and threatened Losses to the extent they arise from or in connection with any of the following: (i) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person, and the damage, loss, or destruction of any real or tangible personal property, either of which is caused by the negligence or other tortuous conduct of Customer, its employees, agents, or subcontractors; (ii) any action taken by or on behalf of Customer in the performance of the Order that causes GE Aviation to be obligated to indemnify, defend, and/or hold harmless any third Party; and (iii) any claim, demand, charge, action, cause of action, or other proceeding resulting from an act or omission of Customer, its employees, agents, or subcontractors acting in its or their capacity as an employer or potential employer with respect to the claimant.
(B) LIMITATION OF LIABILITY
(i) TOTAL LIABILITY: GE’s total liability for any and all claims, whether in contract, warranty, tort (including negligence but excluding wilful misconduct or recklessness), product liability, patent infringement, or otherwise, for any damages arising out of, connected with, or resulting from the performance or non-performance of any Service or from the manufacture, sale, Redelivery, resale, repair, overhaul, replacement or use of the Equipment or any item or part thereof, will not exceed the price allocable to the repaired or overhauled item, part or Service which gives rise to the claim. In no event, whether as a result of breach of contract, warranty, tort (including negligence but excluding wilful misconduct or recklessness), product liability, patent infringement, or otherwise, will GE be liable for any special, consequential, incidental, resultant or indirect damages (including, without limitation, loss of use, revenue, profit or goodwill) or punitive or exemplary damages.
(ii) DEFINITION: GE Aviation is deemed to include GE Aviation Czech s.r.o, its subsidiaries and their affiliates, directors, officers, employees, agents, representatives, subcontractors, and the suppliers of all of them.
The Warranty is exclusive and in lieu of all other warranties, whether written, oral, expressed, implied or statutory, including, without limitation, any warranty of merchantability or fitness for particular purpose.
(C) The conditions to performance specifically stated in this provision and elsewhere in the Order shall be the only conditions precedent or subsequent to an absolute duty of performance on the part of Customer and GE Aviation. Any official action or legal proceeding by Customer in connection with the Order, other than provided for elsewhere in the Order, must be commenced within one (1) year from delivery. In no event of breach or repudiation of the Order by GE Aviation shall GE Aviation be liable for indirect, special, third party, incidental, or consequential damages, including without limitation lost profits, data, or goodwill, and Customer hereby agrees not to make any such claim on GE Aviation. Customer agrees to defend, indemnify and hold harmless GE Aviation from and against any claim, loss, liability, expense or damage (including liens or legal fees) incurred by GE Aviation with respect to any of Customers export or re-export activities contrary to Section 18 – Export & Import Controls
11. PACKAGES: All cases will be charged on the Invoice for the Order Goods/Equipment at the time of shipment.
12. CUSTOMER SPECIFIED SOURCES: Where work of any kind is performed for GE Aviation by a subcontractor specified or selected by Customer, GE Aviation is relieved from all liability for any Order Goods/Equipment supplied by GE Aviation which are not warranted due to the work performed by the subcontractor so specified or selected by Customer. GE Aviation shall have no liability, except for reasonable care, for parts of any description supplied by Customer for incorporation in articles to be produced by GE Aviation. GE Aviation is further relieved for injuries of any sort to Customer occasioned by GE Aviation’s failure to perform or by delays in GE Aviation’s performance where such failure or delay is caused directly or indirectly by, or arises out of, matters within the control of a subcontractor specified or selected by Customer.
13. TAXES: Sales and use taxes, payable by Customer, which are presently or may hereafter be imposed by any taxing authority, are not included in the sale price. Any direct or excise tax or import or customs exaction payable by GE Aviation, which may hereafter be imposed by any taxing authority, wheresoever located, upon the manufacture, sale or delivery of Goods/Equipment covered by the Order, or any increase in rate of any such tax or import or customs exaction now in force, shall be added to the sales price. If such charge is not collected at the time of payment or sale price, Customer will hold GE Aviation harmless.
14. CHANGES AND TERMINATION:
(A) GE Aviation shall have the right, in its sole discretion, to terminate the Order if Customer: (i) is unable to pay its debts generally as and when they become due; (ii) is the subject of a legal process declaring it insolvent; (iii) ceases or threatens to cease carrying on its business; or (iv) commits a substantial breach of the Order which is incapable of remedy.
(B) Customer may make a written request for amendment, modification or termination of the Order. If a request for amendment or modification is accepted by GE Aviation, and any changes cause an increase or decrease in the cost of, or the time required for, the performance of any part of the work under the Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Wherever the cost of property made obsolete as a result of the change is included in the price adjustment, Customer shall have the right to prescribe the manner of disposition of such property. If request for termination is accepted by GE Aviation, equitable provision shall be made to GE Aviation for a recovery of all costs incurred under the Order and for reasonable profit based on time and costs expended. The Order shall continue in effect until such time as payment is received in full. A written request as specified herein shall give GE Aviation adequate reason to demand written assurance of Customer’s ability and intent to carry out the Order.
15. MERGER AND SEVERABILITY: The Order contains the total agreement of the Parties, and all agreements entered into prior to or contemporaneously with the execution of the Order are excluded whether oral or in writing, except that a contemporaneous writing, signed by both Parties, and firmly attached to the Order, shall be considered part hereof. If any provision of the Order shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not effect the remaining provisions of the Order, all of which shall remain in full force and effect.
16. DISPUTE RESOLUTION, GOVERNING LAW, AND FORUM:
(A) The Order shall be governed by, and construed in accordance with New York law.
(B) DISPUTE RESOLUTION: If any dispute arises relating to this Order, the Parties will endeavour to resolve the dispute amicably, including by designating senior managers who will meet and use commercially reasonable efforts to resolve any such dispute. If the Parties’ senior managers do not resolve the dispute within sixty (60) Days of first written request, either party may request that the dispute be settled and finally determined by binding arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (‘AAA”) in New York, New York, by one or more arbitrators appointed in accordance with the AAA Rules. The arbitrator(s) will have no authority to award punitive damages, or any other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Order and applicable law. The award of the arbitrator(s) will be final, binding and non-appealable, and judgment may be entered thereon in any court of competent jurisdiction. All statements made or materials produced in connection with this dispute resolution process and arbitration are confidential and will not be disclosed to any third party except as required by law or subpoena. The Parties intend that the dispute resolution process set forth in this Section will be their exclusive remedy for any dispute arising under or relating to this Order or its subject matter.
(C) EXCEPTION: Either Party may at any time, without inconsistency with this Section, seek from a court of competent jurisdiction any equitable, interim, or provisional relief to avoid irreparable harm or injury. This Section will not apply to and will not bar litigation regarding claims related to a party’s proprietary or intellectual property rights, nor will this Section be construed to modify or displace the ability of the Parties to effectuate any termination contemplated in Section 14.
(D) GE Aviation shall have the right to collect from Customer its reasonable expenses, including attorneys’ fees, incurred in enforcing the Order.
(E) The rights and obligations herein shall survive completion of the final payment under the Order.
17. CONFIDENTIALITY: The Parties agree that, in the course of performance of the Order, it may be necessary and desirable for them to exchange confidential information. For example, all updates, repairs, replacements, fixes, modifications, and other changes to the Goods/Equipment shall be considered GE Aviation’s proprietary information. To accomplish this confidentiality, the Parties agree as follows: any Party disclosing confidential information to the other Party shall identify such information as confidential when disclosing it. The receiving Party shall not disclose confidential information of the disclosing Party to any person outside its employ, except when authorized by the disclosing Party. Any Party receiving confidential information under this Article shall maintain such information in confidence in the same manner it protects its own confidential information and shall use it only for the performance of the Order, and for no other purpose.
18. EXPORT AND IMPORT CONTROLS: Both Parties acknowledge and agree to comply with applicable import and export laws and regulations of Customer’s country, Czech and of the United States, including the Export Control Act (2002), International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), where applicable. Customer agrees to obtain the proper export authorization prior to exporting or re-exporting the Order Goods/Equipment, either in their original form or after being incorporated into other end-items.
19. NOTIFICATION: Customer agrees to notify GE Aviation immediately if Customer is listed in any Denied Persons List, Entity List, or Specially Designated Nationals List, or if Customer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any Czech or U.S. Government entity or agency.
20. ASSIGNMENT: Neither Party shall assign the Order without the prior written consent of the other Party, except that GE Aviation may assign it to any of its parent, sister, or affiliate companies.
21. RELATIONSHIP: Nothing in the Order shall be construed to place the Parties in the relationship of partners or a joint venture, and the Parties shall have no power to obligate or bind the other in any manner whatsoever.
22. BENEFICIARIES: Unless stated to the contrary in this Order, these provisions are solely for the Parties’ mutual benefit and not for the benefit of any third party.
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