Unless otherwise specifically agreed to in writing, the following Terms and Conditions shall apply to the SUPPLIER’s acceptance of the Purchase Order and Aerospace Quality Research and Development – 145 LLC (AQRD-145) acceptance of ordered items. All goods ordered shall be subject to inspection and approval at destination by AQRD-145 or its duly authorized representative after delivery to AQRD-145’s facility or another address specified by AQRD-145 in writing. Payment for any goods shall not be deemed acceptance thereof or waiver of any right to test or inspect such goods. For the avoidance of doubt, and notwithstanding any other provisions of these Terms and Conditions, AQRD-145 reserves the unqualified right to reject all or any part of any delivery that varies from the quantity or deviates materially from the specifications identified on the Purchase Order, or is otherwise materially defective.
RISK OF LOSS
Unless otherwise specifically provided on the Purchase Order, delivery shall be F.O.B. to an address specified by AQRD-145. Notwithstanding anything to the contrary contained herein or in the Purchase Order, delivery shall not be deemed to be complete until such time as the items identified on the Purchase Order have been delivered to and accepted by AQRD-145. IfSUPPLIER pays freight,risk of loss ordamageshall not pass to AQRD-145 until delivery is complete.
Invoices should be dated and sent any time after the items identified on the Purchase Order have shipped from SUPPLIER’s facility. The payment due date shall be calculated from the date of receipt by AQRD-145 of a correct invoice from SUPPLIER. Unless otherwise stated on the face of the Purchase Order, payment shall be made Net 30 days from the later of the date of AQRD-145’s acceptance of the items and the date of AQRD-145’s receipt of a correct invoice.
DELAY IN DELIVERY
If the SUPPLIER becomes aware of any circumstances that are likely to cause a delay in delivery of the ordered item(s), the SUPPLIER will immediately notify AQRD-145 in writing stating the reason for the delay and the updated delivery date. Upon receipt of this information, AQRD-145 reserves the right to keep, cancel or modify the Purchase Order without liability or penalty. AQRD-145 also reserves the right to cancel an expedited purchase order if the SUPPLIER cannot meet the needs of an expedited purchase order. Notwithstanding anything to the contrary contained herein or in the Purchase Order, in the event of failing to comply with the delivery terms agreed hereunder, AQRD-145 reserves the right to rescind the Purchase Order or to receive or accept the materials and SUPPLIER agrees to pay for expenses and damages resulting from SUPPLIER’s failure to comply.
SUPPLIER personnel must have proper training for the jobs they are performing, and in any event, such training must meet theAerospace Quality standards.
SUPPLIER shall maintain a quality management system that is approved by FAA, EASA or ISO9001 / AS9100, or which is acceptable and appropriate, in the discretion of AQRD-145, for the items supplied hereunder, and in any event, the quality management system shall comply with general industry standards. Items supplied shall meet the requirements of the applicable technical specifications and documentation (drawings, specifications, standards, etc.). SUPPLIER must be an approved vendor byAQRD-145’sQualitySystem.
CERTIFICATION AND TRACEABILITY
All items must conform to the Original Equipment Manufacturers (OEM) specifications and tests. An FAA Form 8130-3 or Certification of Conformance must accompany the items from SUPPLIER’s facility, including a statement of the condition of the item and back-up data on file for inspection, and such Form or Certification shall be signed by an authorized representative of the SUPPLIER.
a. Should such certification not accompany the shipment, items will be held in quarantine and no payment shall be processed until the proper certification is received.
b. AQRD-145 will require traceability back to a valid FAA, EASA, OEM, or other approved source (suchasa 121 operator or a 145 repair station) and full source documentation.
c. AQRD-145 may request and, if requested, SUPPLIER shall supply, design, test, examination, inspectionand related instructions relating to any or all items as a condition of acceptance.
d. AQRD-145 may require first article test specimens (e.g., production method, number, storage conditions) for inspection, investigation or auditing.
e. AQRD-145 must be notified in advance of order if RMA parts are to be supplied.
f. AQRD-145 must be notified prior to supply if parts or repairs thereof contain FAA classified
Major repairs or Major Alterations.
SUPPLIER represents and warrants that the times identified and delivered pursuant to the Purchase Order (1) will conform to the performance characteristics of SUPPLIER’s representations and specifications, (2) will be free from defects in material and workmanship, (3) will conform to applicable specifications and other requirements of these Terms and Conditions and the Purchase Order, (4) will be of merchantable quality and (5) will be free of any encumbrances of titles, including, without limitation, any mechanic liens, royalty or otherwise.
EXEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SUPPLIER AND AQRD-145 MAKE NO RESPRESENTATIONS OR WARRANTIES TO EACH OTHER UNDER THESE TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED.
SUPPLIER is hereby notified that the delivery of counterfeit parts is of special concern to AQRD-145. SUPPLIER shall not deliver counterfeit parts to AQRD-145 under this purchase order. SUPPLIER shall only purchase products to be delivered to AQRD-145 from the Original Component Manufacturer (OCM), or the Original Equipment Manufacturer (OEM), or through the OCM/OEM authorized distributor chain. Parts purchased from another FAA Part 145 repair station, FAA Part 121/135 airline are acceptable given the use of their quality system as the basis for ensuring the requirements in this section are addressed. Parts shall not be acquired from independent distributors or brokers unless approved in advance in writing by AQRD-145. Regardless of the source of procurement, SUPPLIER must provide OCM/OEM documentation that authenticates traceability of the part to the applicable OCM/OEM. Should SUPPLIER deliver counterfeit parts to AQRD-145, SUPPLIER shall indemnify, defend and hold harmless AQRD-145 and its officers, directors, employees and agents from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising, directly or indirectly, out of or in connection with such counterfeit parts.
Unless otherwise specified, all packing and packaging shall comply with the requirements set forth in ATA Spec 300. The price included in the Purchase Order includes all charges for such packing, packaging, and transportation to the FCA shipping point. All items must be packed in accordance with manufacturer specifications. All shipments to AQRD-145 must be visually identified with the Purchase Order number on the exterior of package/box so that packages/boxes do not have to be opened to verify an order. Unidentified shipments may be refused and returned to SUPPLIER at SUPPLIER’s sole expense.
MATERIAL SAFETY DATA SHEET
If material is considered hazardous as defined by EPA, OSHA, DOT, or any other local, state, federal or foreign regulation, SUPPLIER must provide a Material Safety Data Sheet, along with the United Nations Hazardous MaterialCode (see 49 CFR 100 et seq.) before orwith the shipment. SUPPLIER is responsible for providing an updated or amended Material Safety Data Sheet prior to shipping any applicable material. If the goods include explosives,as defined by the Bureauof Alcohol Tobacco and Firearms, U.S. Department of Treasury (see 27 CFR et seq.), SUPPLIER must provide AQRD-145 with an ATF Exemption Letter prior to shipment.
Nonconforming items that are delivered pursuant to this Purchase Order, whether produced through a manufacturing process, or from overhaul/repair maintenance activity, shall be destroyed if they cannot be repaired. Where an item/product is found to be nonconforming after being sent to AQRD-145, the SUPPLIER must notify AQRD-145 immediately upon learning of the nonconforming item/product. AQRD-145 reserves the unqualified right to accept or reject, in part or in whole, any nonconforming items/at home kit/products delivered pursuant to thePurchase Order.
RIGHT OF ENTRY
SUPPLIER hereby grants to AQRD-145, its representatives, customers, and any applicable regulatory agencies, the right to enter on its premises as well as other necessary places, during normal business hours, upon reasonable request, for the purpose of inspection of SUPPLIER’s facilities and systems to ensure SUPPLIER’s compliance with the terms and requirements of order, including the quality of the contracted work, records, and materials.
SUPPLIER shall provide to AQRD-145 at its earliest convenience,but in no case less than twenty-four(24) hours before initiating shipment, the following information for all items: (1) the applicable United States Munitions List (“USML”) category orExport Control Classification Number(“ECCN”); (2)the Harmonized TariffSchedule code; and (3)the Country ofOrigin for all items included in the Purchase Order. If an item is controlled by the International Traffic in Arms Regulations (“ITAR”), SUPPLIER shall also advise AQRD-145 if the item is Significant Military Equipment(“SME”),aMajorComponent,or regulated under the Missile Technology Control Regime(“MTCR”).
For orders shipping from outside of the United States, SUPPLIER shall strictly follow all AQRD-145 shipping instructions and shall provide copies of the following documents to AQRD-145 prior to, but in any case no later than, the time shipment is initiated: (1) FAA/EASA/TCCA or other civil aircraft certification, if applicable; (2) Commercial Shipping Invoice; (3) Packing List;(4)AirwayBill;(5)ForeignSales Declaration, if applicable; and (6) any other document required,in the discretion of AQRD-145,per commodity type. If SUPPLIER is engaged in the United States in the business of exporting, manufacturing, brokering, or any other value added service of items controlled by the ITAR, SUPPLIER represents that it is registered with the Directorate of Defense Trade Controls (“DDTC”), as may be required by 22 C.F.R. 122.1 and/or 22 C.F.R. 129.3 of the ITAR and that it maintains an effective export/import compliance program in accordance with DDTC guidelines. All manufacturers, exporters, and brokers of defense articles, related technical data and defense services as defined on the United States Munitions List (Part 121 of the ITAR) (PDF, 7MB) are required to register with the Directorate of Defense Trade Controls (DDTC).
DEBARMENT OF SELLER
If SUPPLIER (or any of its subcontractors) is debarred by the U.S. Government from participating in transactions which involve the export of items (whether commercial or military), AQRD-145 may cancel this Purchase Order immediately without liability of any kind to SUPPLIER. If SUPPLIER (or any of its subcontractors) is debarred by the U.S. Government from selling items either directly to the government or from providing items as a subcontractor in fulfillment of requirements originating with the U.S. Government, AQRD-145 may cancel this Purchase Order immediately without liability of any kind to SUPPLIER. If AQRD-145 only becomes aware of such status of SUPPLIER (or any of its subcontractors) after acceptance of the ordered items, AQRD-145 may return such items to SUPPLIER at SUPPLIER’s expense and SUPPLIER shall immediately refund all amounts paid by AQRD-145, if any, for such items. It is SUPPLIER’s responsibility to determine if its subcontractors meet the requirements of this paragraph.
ASSIGNMENT & MODIFICATION
SUPPLIER shall not assign, sell, or subcontract this purchase order, or any part thereof, without AQRD-145’s prior written consent, which shall not be unreasonably withheld. Except as otherwise identified in these Terms and Conditions, no modification of this order shall be binding, unless agreed to in writing by an authorized representative of each party.
OUTSIDE MAINTENANCE FUNCTIONS
SUPPLIER shall meet all the requirements set forth by FAA and EASA to be able to perform maintenance functions for AQRD-145. This includes, but is not limited to, having an FAA approved drug program and a quality management system. Any and all sub-contracted maintenance performed for AQRD-145 as an FAA part 145 certificated or uncertificated vendor must be performed by personnel on an FAA approved DOT Drug and Alcohol program. Compliance with (49 CFR part 40 and 14 CFR part 120) is a mandated for any and all maintenance performed by sub-contractors to AQRD-145 and as a part of these terms and conditions. SUPPLIER shall not use any other maintenance providers in performance of any work or activity without prior AQRD-145 written authorization.
a. SUPPLIER must at all times maintain a system for Corrective action to address defects in workmanship or materials covered by this Purchase Order, which defects may appear within twelve (12) months from the date of this Purchase Order. SUPPLIER shall notify AQRD-145 when discrepancies in SUPPLIER’s process or product are discovered or suspected and may affect parts or assemblies that have already been delivered within a commercially reasonable period of time. In case of irreparable defect or default by SUPPLIER, AQRD-145 may obtain materials and services from other sources and SUPPLIER shall indemnify and hold harmless AQRD- 145 and its officers, directors and other representatives for any and all costs, losses, liabilities or expenses occasioned thereby.
b. Any corrective action pursuant to clause (a) above should be performed by an individual knowledgeable in the area or process that caused the defect. That person will conduct a failure analysis to identify the cause of the problem, propose and implement a solution.
c. The solution should be verified to ensure the problem is solved.
d. SUPPLIER shall establish, document, implement and maintain a procedure to evaluate if nonconformities are based on human factors and if additional nonconforming parts exist. SUPPLIER shall use industry standard process control techniques for all key characteristics identified on the Purchase Order.
e. SUPPLIER must provide a corrective action response to AQRD-145 within 30 calendar days of discovering or being notified by AQRD-145 of any defects. If a response is not received within 60 days, AQRD-145 reserves the right to terminate or cancel any open Purchase Orders with SUPPLIER. Unusual circumstances that require additional time to resolve should be arranged before the expiration of the 30-day response period by the SUPPLIER through AQRD-145’s Quality department.
SUPPLIER FLOWN DOWN
AllSUPPLIERrequirementsmandatedbyAQRD-145mustbefloweddowntosub-tiersuppliers. SUPPLIER RECORDS
a. Records Control SUPPLIER shall maintain a documented procedure for maintaining and controlling quality records in accordance with industry-standard quality system standards. SUPPLIER shall be capable of retrieving and delivering required records to AQRD-145 within 48 hours from the time of any reasonable request.
b. Records Retention Unless otherwise approved by AQRD-145 in writing, SUPPLIER shall maintain all records that provide objective evidence of compliance to AQRD-145 PO/RO requirements for a minimum of 2 years after the last delivery of products and/or services listed on PO or RO received by AQRD-145. Prior to discarding, transferring to another organization, or destroying such records, SUPPLIER shall notify AQRD-145 in writing and give AQRD-145 a reasonable opportunity to gain possession of the records. The requirements of this clause (b) are applicable to records generated by SUPPLIER’s sub-tier sources.
Neither party shall be held responsible for any delay or failure in performance of any part of these Terms and Conditions to the extent such delay or failure is attributable to a force majeure event, including without limitation: fires, floods,riots, work stoppages, weather, acts of God, war, terrorism or delays arising from compliance with any law or government regulation or other similar causes beyond its control and without the fault or negligence of the delayed or nonperforming party or its subcontractors. If any such force majeure occurs, the party delayed or unable to perform shall promptly give notice to the other party, stating the nature of the force majeure and any action being taken to avoid or minimize its effects. If delivery of any item including v2 cig is delayed by any force majeure event for more than 2 months, AQRD-145 may, without any additional extension, cancel all or part of the Purchase Order with respect to the delayed items.
SUPPLIER agrees to indemnify, defend and hold harmless AQRD-145 and all of AQRD-145’s officers, directors, employees and agents from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising, directly or indirectly, out of or in connection with SUPPLIER’s performance hereunder, including but not limited to, the willful misconduct or negligent acts or omissions of SUPPLIER, its suppliers or contractors, any breach by SUPPLIER of these Terms and Conditions and any personal injury or death or damage to property resulting directly or indirectly from the performance by SUPPLIER hereunder. AQRD-145 agrees to indemnify, defend and hold harmless SUPPLIER and all of SUPPLIER’s officers, directors, employees and agents from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising, directly or indirectly, out of or in connection with AQRD-145’s performance hereunder, including but not limited to, the willful misconduct or negligent acts or omissions of AQRD-145, any breach by AQRD-145 of these Terms and Conditions and any personal injury or death or damage to pax 3 property resulting directly or indirectly from the performance by AQRD-145 hereunder.
SUPPLIER shall maintain insurance policies in sufficient coverage and amounts to satisfy its obligations under these Terms and Conditions including, without limitation, (i) commercial general liability insurance with annual limits of liability not less than $100,000.00; (ii) automobile liability with annual limits not less than $250,000.00; and (iii) workers’ compensation providing statutory benefits in accordance with the laws and regulations of the State of Texas or other jurisdiction, as applicable,but in any event not less than $250,000.00 bodily injury each accident. SUPPLIER shall contact AQRD-145 prior to supply of items or services if these insurance limits cannot be satisfied.
SUPPLIER hereby acknowledges that from time to time in connection with the transactions arising hereunder, it may have access to information marked or identified by AQRD-145 as “confidential” or “proprietary” or other information of AQRD-145 that would be reasonably understood by SUPPLIER as information not generally known to the public (collectively, Confidential Information). SUPPLIER shall restrict the use and access to the Confidential Information to its employees who are expressly required to accomplish SUPPLIER’s obligations hereunder SUPPLIER shall keep confidential and protect from disclosure all information and property obtained from AQRD-145. Unless authorized, SUPPLIER shall use AQRD-145 supplied information and property only in the performance and for the purpose of the Purchase Order. Upon request by AQRD-145 and the completion, termination or cancellation of the Purchase Order pursuant to theseTerms and Conditions,SUPPLIER shall return all Confidential Informationto AQRD-145.
LIMITATION ON LIABILITY
In no event shall either party (or their respective suppliers or affiliates) be liable to each other for any punitive, special, indirect, consequential, incidental, exemplary, lost profit or other similar damages arising out of, or in connection with, these Terms and Conditions or the Purchase Order, even if such party has been advised of the possibility of such damages.
The relationship between the parties under these Terms and Conditions is that of independent contractors, and nothing contained therein shall be construed to create a relationship of employer and employee or principal and agent between SUPPLIER and AQRD-145. SUPPLIER’s personnel shall serve under the exclusive direction and control of SUPPLIER and shall not be deemed to be employees or agents of AQRD-145.
THESE TERMS AND CONDITIONS WILL BE GOVERNED BY, AND CONSTRUES AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCLUDING THE PRINCIPLES OF CONFLICT LAWS THEREOF THAT WOULD CAUSE THE LAWS OF ANOTHER JURISDICTION TO APPLY. THE PARTIES HEREBY IRREVOCALBLY SUBMIT TO THE JURISDICTION OF THE FERFERAL AND STATE COURTS IN DALLAS COUNTY, TEXAS, AND AGREE THAT ANY ACTION, SUIT OR PROCEEDING CONCERNING, RELATED TO OR ARISING OUT OF THIS AGREEMENT SHALL BE HEARD AND DETERMNINED IN THE FEDERAL AND STATE COURTS IN DALLAS COUNTY, TEXAS AND FUTHER IRREVOCABLE WAIVE ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH DISPUTE BROUGHT IN SUCH COURT OR ANY DEFENSE OF INCONVENIENT FORUM FOR THE MAINTENANCE OF SUCH DISPUTE. THE PARTIES HEREBY WAIVE TRIAL BY JURY FOR ALL CLAIMS ARISING HEREUNDER. ENTIRE AGREEMENT
These Terms and Conditions, including the Purchase Order, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or simultaneous verbal or written agreements. These Terms and Conditions may not be waived or modified unless in a writing signed by a duly authorized representative of each party. If any term or provision of these Terms and Conditions shall be found to be illegal or unenforceable, such illegal or unenforceable provision will be deemed modified solely to the extent required to permit its enforcement in a manner most closely approximating the intention of the parties expressed herein.