AerCap Materials Terms and Conditions: Quote & Sales

  1. PRECEDENT.  The sale by Seller to Buyer of the goods specified (the “Goods”) on the sale quotation (the “Quote”) shall be governed exclusively by the terms of the Quote and these Terms and Conditions, which together shall constitute the entire agreement between Buyer and Seller with respect to the Goods (the “Contract”).  The Contract specifically supersedes, takes precedence over, and fully replaces any terms and conditions which may be included in any purchase order received from Buyer for the Goods or in any other communication, oral or written, between Buyer and Seller.  The Contract may be modified only by a written amendment executed by Buyer and Seller.
  2. PRICING AND PAYMENT. Prices for the Goods shall be as specified in the Quote. Seller shall submit to Buyer a separate invoice for each portion of the Goods, as delivered, in accordance with the Contract. Unless otherwise specified in the Quote, Buyer shall pay each invoice in U.S. Dollars on net 30-day terms.
  3. Breach and Remedies. The time within which Buyer is to pay for the Goods shall be of the essence of the Contract.  Payments not made in accordance with the net term of the Contract shall be deemed to be past due on the first (1st) day after expiration of the net term (“past due”). Interest shall accrue at the rate of one and one-half percent (1.5%) per month, or at the highest rate allowed by law (whichever is less), on any payment which becomes past due, and shall continue to accrue until the payment is paid in full, including any interest owed. Further, if any payment is past due, Seller reserves the right to stop all further shipments of the Goods and all goods under any other contracts with Buyer (“other contracts”) and seek any and all remedies permitted by law.  Buyer’s breach of the Contract shall constitute a breach of any other contracts and, conversely, Buyer’s breach of any other contracts shall constitute a breach of the Contract.  Buyer agrees to pay the reasonable collection charges and legal costs and fees, including attorney’s fees, incurred by Seller in collecting any payments past due.
  4. TAXES, ETC. Any and all taxes (including, but not limited to, stamp and turnover, transfer, sales, or value-added taxes), duties, fees, and charges or assessments of any nature levied by any governmental authority in the United States or any other country or jurisdiction in connection with sale of the Goods hereunder, whether levied against Buyer or Seller, shall be the responsibility of Buyer.  Notwithstanding the foregoing, Buyer shall not be responsible for any federal, state or local income, capital or franchise taxes levied against Seller in the United States.
  5. DELIVERY; RISK OF LOSS. Delivery dates are approximate only. Buyer acknowledges and understands the dates provided are estimates and do not represent a firm delivery commitment.  Delivery of the Goods shall be F.O.B. (UCC) Seller’s facility, Memphis, Tennessee, in the case of “domestic sales” (where Buyer’s headquarters and principal base of operations are located in the U.S.A. and the Goods are not for export), and EXW (Incoterms 2010) Seller’s facility, Memphis, Tennessee, U.S.A. in the case of “international sales” (where Buyer’s headquarters or principal base of operations is located in a country other than the U.S.A. or the Goods are for export).  All risk of loss of or damage to the Goods shall pass to Buyer as soon as the Goods are delivered to the carrier at Seller’s facility.  The foregoing shipping terms shall have the meanings set forth in the Tennessee Uniform Commercial Code for domestic sales (“UCC”) or in Incoterms 2010, as published by the International Chamber of Commerce, for international sales (“Incoterms”).
  6. SHIPPING; EXPORT. Transportation from Seller’s facility shall be at Buyer’s sole cost and expense.  Buyer shall be responsible for arranging transportation, but upon Buyer’s written request, Seller shall make transportation arrangements on Buyer’s behalf, in which event methods and route of shipment shall be at the discretion of Seller.  If Buyer requests an alternate shipping method or route, then any additional expense of such method or route also shall be borne by Buyer.  Seller shall quote prices for insurance and/or freight upon request.  All shipments hereunder shall be subject to the export control laws and regulations of the United States and any amendments thereto.  Buyer shall not make any disposition of the Goods by way of trans-shipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on the Quote or declared as the country of ultimate destination on Seller’s invoices, except as such laws and regulations may expressly permit.  Buyer shall be responsible for compliance with all import regulations imposed by any foreign jurisdiction to which the Goods may be shipped.
  7. EXPORT CONTROLS. Buyer agrees that it will not sell, distribute, disclose, release or otherwise transfer any item or technical data provided under the Contract into any sanctioned country or region or to any sanctioned entity or individual, including: (i) any country designated as a “State Sponsor of Terrorism” by the U.S. Department of State, including, for this Contract, the countries of Iran, Syria, Cuba, and North Korea (ii) any entity located in, or owned by an entity located in, a “State Sponsor of Terrorism” country or Iran, Syria, Cuba, or North Korea, (iii) the countries of Russia and Belarus, (iv) the Russian-occupied Ukrainian territories of Crimea, Donetsk, and Luhansk, or (v) any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce, the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury or any other applicable prohibited party list of the U.S. Government. This clause will apply regardless of the legality of such transaction under local law. Except as otherwise agreed in writing between the parties, each Party shall be responsible for obtaining and maintaining any authorization required for its performance under this Contract (including transfer of any item or technical data under this Contract), such as Export License, Import License, Exchange Permit, or other required government export or import authorization. Each Party shall provide the reasonable assistance necessary for the other Party to secure and comply with such authorizations as may be required. Each Party shall not be liable if any government export authorization is delayed, denied, revoked, restricted, or not renewed despite reasonable efforts by the Party. Additionally, such delay, denial, revocation, or non-renewal shall not constitute a breach of this Contract. The customer shall not use any items sold by Seller for any military application or resell them for such purpose.
  8. PROPRIETARY INTERESTS. Buyer shall grant, and by acceptance of the Goods shall be deemed to have granted, to Seller a first-priority security interest in the Goods to secure payment of their purchase price.  Seller shall have the right to give all appropriate notices, to file a UCC-1 financing statement in all appropriate jurisdictions, and to execute, deliver, and file in any jurisdiction such other documentation as may be necessary or useful in Seller’s judgment to give notice of or perfect its security interest in the Goods.
  9. INSPECTION & ACCEPTANCE. Buyer shall have ten (10) days after delivery of the Goods to inspect and either accept or reject them. If the Goods are rejected, Buyer shall give prompt written notice to Seller, which shall be received by Seller no later than fifteen (15) days after delivery of the Goods. Such written notice of rejection shall fully specify all claimed defects and nonconformities, and Buyer may not claim any unstated defect or nonconformity. Buyer’s failure to give the requisite notice within the foregoing period shall constitute acceptance.  Seller’s only obligation shall be either to correct any claimed defect in the Goods or, in its sole discretion, substitute other goods.  Buyer shall not, under any circumstances, be entitled to reject the Goods if they conform in all respects to the Contract.
  10. EXCUSABLE DELAYS. Seller shall be excused for delays in deliveries arising from causes outside its control, including, but not limited to: (i) acts of God, acts (including delay or failure to act) of any governmental authority, wars (declared or undeclared), acts of terrorism, riots, priorities, hijackings, fires, strikes, labor stoppages, sabotage, epidemics, and interruptions of essential services and supplies such as electricity, natural gas, fuels, and water, unforeseeable circumstances, or revocation of any government license, approvals or permits, and (ii) inability to timely obtain from vendors or subcontractors necessary and proper labor, materials, components, facilities or transportation, when the vendor or subcontractor has experienced an excusable delay as described above in this paragraph and such items cannot reasonably be obtained from another source.
  11. The Contract may be canceled by Buyer only in the event that Seller is in material default thereunder and fails to cure the default within thirty (30) days following the receipt by Seller of written notice thereof from Buyer.
  12. GUARANTEED REPAIRABLE. If the Goods are guaranteed by Seller to be repairable, then this shall be conspicuously stated in the Quote. Goods sold in guaranteed repairable condition are sold without any warranty, except that the Goods shall be capable of being repaired. Goods returned must have the approval of Seller. Seller will allow thirty (30) days from the date of delivery for the Buyer to determine if the Goods are repairable and an additional fifteen (15) days for return of the Goods. Goods approved to be returned to Seller but not received by Seller with forty-five (45) days of delivery will not be accepted for credit and shall be returned to the Buyer at Buyer’s cost.
  13. DISCLAIMER OF WARRANTY. THE GOODS ARE SOLD AND SHALL BE DELIVERED BY THE SELLER “AS IS, WHERE IS AND WITH ALL FAULTS,” AND BUYER AGREES AND ACKNOWLEDGES THAT SELLER SHALL HAVE NO LIABILITY IN RELATION TO, AND THAT SELLER HAS NOT, AND SHALL NOT BE DEEMED TO HAVE MADE OR GIVEN, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OF THE GOODS OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO AIRWORTHINESS, VALUE, QUALITY, DURABILITY, DESIGN, OPERATION, DESCRIPTION, MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE, AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AS TO THE COMPLETENESS OR CONDITION OF ANY DOCUMENTS, AND/OR AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, DESIGN OR OTHER PROPRIETARY RIGHT; AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ALL WARRANTIES AND REPRESENTATIONS (AND ANY OBLIGATION OR LIABILITY, IN CONTRACT OR IN TORT) IN RELATION TO THE GOODS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE EXPRESSLY EXCLUDED.
  14. LIMITATION OF LIABILITY. In no event shall Seller be liable for more than the purchase price of any of any Goods in dispute, whether on account of any breach of this Agreement or any alleged defect in the Goods, or based on any other grounds or legal theory, whether arising in contract or tort.  To the extent that either party is subject to liability for any breach under the Contract, the liability of such party shall be limited to the actual and direct monetary damages caused by the breach.    In no event shall either party be liable for indirect, special, consequential, multiple or punitive damages, or any damage deemed to be of an indirect or consequential nature arising out of or related to its performance under the Contract or any other related agreement, whether based upon breach of contract, warranty, negligence, loss of use, or loss of profits, and whether grounded in tort, contract, civil law, or other theories of liability, including strict liability.
  15. Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective shareholders, directors, officers, employees, agents, contractors, successors and assigns, from and against any liability, loss, cost or expense suffered or incurred, if arising from claims of third parties, to the extent caused by handling or operation of the Goods following delivery thereof to Buyer.  Limits on the parties’ contractual liabilities shall not apply to Buyer’s indemnity against third party claims.
  16. If any provision of the Contract shall be deemed illegal or otherwise unenforceable, in whole or in part, that provision shall be enforced only to the extent legally permitted, and the remainder of the provision and the Contract shall remain in full force and effect.
  17. APPLICABLE LAW. The parties hereby agree that the validity, interpretation, performance, and enforcement of the Contract and any dispute arising thereunder shall be governed by the laws of the State of Tennessee, U.S.A.  Any civil action brought pursuant to the Contract or arising out of any matter or business conducted under the Contract may be brought in the state or United States federal courts located in Tennessee, and both parties hereby consent to the non-exclusive jurisdiction of such courts.  THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
  18. OPTIONAL ARBITRATION FOR INTERNATIONAL SALES.
  1. If Buyer’s headquarters or principal base of operations is located in a country other than the U.S.A. or the Goods are for export, then at the election of either party, which shall be deemed waived if not exercised within seven (7) days after service of process on such party in any court action arising under the Contract, any dispute, controversy or claim arising out of or relating to the Contract or the breach thereof shall be settled in accordance with the International Arbitration Rules (the “Rules”) of the American Arbitration Association as then in force by one arbitrator. The International Centre for Dispute Resolution (“ICDR”) shall administer the arbitration. Where there is conflict between the Rules and this arbitration paragraph, the provisions of this paragraph shall govern. If either party elects to have any matter settled under this paragraph, then resolution of such matter shall be conducted expeditiously, so that final settlement shall be accomplished in one hundred twenty (120) days or less following receipt by a party of the electing party’s notice of arbitration (the “Notice Date”).
  2. Within a period of ten (10) days following the Notice Date, the parties shall appoint one arbitrator from a list of five attorneys selected on the basis of their experience in and knowledge about aviation and commercial transactions, which list shall be supplied by ICDR. If the parties fail to agree on the appointment of an arbitrator within the period provided for above, ICDR shall appoint an arbitrator from its panel of arbitrators at the request of either party. The arbitrator shall be responsible for management of the settlement process and shall cause timely scheduling of all events to assure settlement within the one hundred twenty (120)-day period required in subpart (a); provided, the arbitrator may extend the settlement period in the interests of justice, and failure to complete settlement within the scheduled period shall not constitute a basis for challenging the award. The arbitrator shall be jointly compensated by the parties at a rate determined by ICDR, and the parties shall share other costs of the proceedings equally, subject to the arbitrator’s award of costs provided for in subpart (d). The arbitrator shall be neutral, independent and impartial and shall abide by the Canons of Ethics of the American Bar Association for neutral, independent arbitrators. The arbitrator shall be subject to disqualification if a party, before the appointment, asks for the views of the arbitrator or makes an ex parte disclosure of significant facts or themes of the dispute.
  3. The arbitration, including the rendering of the award, shall take place in Memphis, Tennessee, U.S.A., and the language to be used in the arbitral proceedings shall be English. The Contract and all disputes arising out of or related to the Contract, or the performance, enforcement, breach or termination of the Contract and any remedies relating thereto, shall be construed and determined in accordance with the laws of the State of Tennessee, U.S.A.
  4. The award of the arbitrator may be, alternatively or cumulatively, for monetary damages, an order requiring the performance of non-monetary obligations (including specific performance) or any other appropriate order or remedy, except that the arbitrator shall have no power to award punitive, non-compensatory or exemplary damages. Any award made in pursuance of this paragraph may include costs, including, but not limited to, the cost of the arbitrator and a reasonable allowance for attorneys’ fees, and prejudgment interest at whatever rate the arbitrator may deem appropriate. Interest shall run on any award at such rate from the date of the award until payment in full. The arbitrator may issue interim awards and order any provisional measures which should be taken to preserve the respective rights of either party. The arbitrator shall supply the reasons on which the award was based.
  5. Any award rendered by the arbitrator shall be payable in U.S. Dollars and, subject to either party’s right to challenge the award as provided herein, shall be the final disposition on the merits. Judgment upon the award rendered may be entered by any court of competent jurisdiction, or application may be made to any such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The parties shall have the right to challenge any interim or final award of the arbitrator solely on the grounds that the arbitration was not conducted in accordance with this paragraph and/or the Rules. The parties otherwise waive their rights of appeal.
  6. Without prejudice to the authority of the arbitrator hereunder, should either party seek a temporary restraining order, replevin, prejudgment attachment or preliminary injunctive or other extraordinary relief, the court shall retain jurisdiction to act.
  7. The arbitrator shall have the power to determine the existence, validity or scope of the Contract and this arbitration paragraph itself. For the purposes of challenge to the arbitrator’s jurisdiction, this arbitration paragraph shall be considered as separable from the Contract.
  8. If either party fails to appear following notice of a hearing, the other party may proceed with an ex parte hearing.
  1. NOTICES.  All notices and other communications under, or in connection with, the Contract shall, unless otherwise stated, be given in writing by hand delivery, mail, overnight courier service, facsimile or email.  The address, facsimile and email details for notices to each party are as set forth on the Quote.  Any such notice or other communication shall be deemed effectively given when received by the recipient (or if receipt is refused by the intended recipient, when so refused).
  2. CONFIDENTIALITY.  Each of Seller and Buyer agrees that it will not, without the prior written consent of the other, disclose or permit to be disclosed the terms of sale of the Goods to any person or entity, except its counsel, financial advisors and auditors; provided, however, disclosure may be made as required by applicable law or governmental regulation, or pursuant to legal proceedings, including pursuant to an order of any court or governmental agency having jurisdiction.
  3. TERMINATION. Seller shall have the right to terminate the Contract on the bankruptcy or insolvency of Buyer or the appointment of a receiver for its property by giving written notice of termination, such termination to take effect five days after the date of such notice.
  4. NO BROKER/FINDER FEES. Each party represents and warrants to the other party that no other person or firm brought about the Contract or is entitled to compensation in respect to it.
  5. ENVIRONMENTAL AND HEALTH. OEM manuals and illustrated parts catalogues indicate that certain parts, or components of parts, constituting the Goods may contain asbestos or other hazardous materials that may pose a threat to human health or the environment. Seller has not determined whether any of the Goods contain such materials. The Buyer is urged to consult the OEM manuals and catalogues before engaging in any repair or operational activity, such as cutting, grinding, sanding, or other abrasive activity, that may result in the release of dust, fumes, particulates, fibers, and the like, and to use appropriate personal protective equipment and environmental, health, and safety controls. Buyer acknowledges receipt of this warning and responsibility for communicating necessary information to its employees and any other parties under its control. The indemnification obligations of paragraph 13 shall extend to any liability, loss, cost or expense arising out of the use, handling, modification, disassembly, repair, and/or disposal of the Goods.