These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the Goods (as defined below) by Broward Aviation Services, Inc. ("Seller" or “Broward Aviation”) to customer named in the invoice ("Buyer" or “Customer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
The accompanying invoice (the "Sales Confirmation" and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
Definitions. For purposes of this Agreement, the following words are defined as follows:
“Authorized Repair Facility” means any facility with which Broward Aviation contracts for repair services.
“Customer” means a company or person that is purchasing a Good from Broward Aviation.
“Excess”, as related to shipping costs, is defined as charges in excess of the cost of the manner directed in the Customer’s purchase order.
“Expired” means any inspected, repaired, overhauled, or new Good where the airworthiness approval certificate is over two years old.
"Good” or, collectively, “Goods” means any item or items sold by Broward Aviation to a Customer.
“Pass/Fail Good” means any Good that cannot be repaired beyond a general pass or fail inspection. A Pass/Fail Good can be, but is not limited to inspected, repaired, overhauled, or new conditions.
“Return of Material Authorization” (“RMA”) means a written authorization issued by Broward Aviation to authorize the return of an allegedly discrepant Good. A RMA is issued by Broward Aviation at its sole discretion.
Loss or Damage. Notwithstanding any other agreement by the parties, risk of loss of a Good passes to the Customer when the Good (1) is delivered to the carrier who will be responsible for carriage from Seller in the case of a Good shipped to a Customer or (2) is claimed by the Customer in the case of a Good picked-up at Seller or Seller’s Authorized Repair Facility by the Customer or the Customer’s agent. In the event that the Good is lost, stolen, damaged, or destroyed before risk of loss has passed, the Customer must notify Seller, in writing, within five (5) business days of the loss or else the Customer waives any right to compensation and remains responsible for the purchase price. In all events, Customer is expected to insure its Goods against loss. If Customer fails to insure Good against loss, then Customer does so at its own peril.
Customer Inspection. Customer shall inspect the Goods and all certifications and documentation delivered to Customer by or on behalf of Seller within five business days of receipt. Customer must notify Seller in writing of any discrepancies found during the inspection period. In the event that Customer notifies Seller, in writing, of discrepancies before the expiration of the inspection period, Customer shall have five business days from the day Customer provided Seller with the discrepancy, in writing, to request a RMA.
Shipping Costs. If the purchase order directs that the Good be shipped according to a particular method, then Customer will reimburse Seller for actual shipping costs so long as Seller follows the directions of the purchase order. If the purchase order is silent as to shipping method, then Seller may opt to pay for shipping and shall be expected to choose a method of shipping that permits compliance with the terms of the purchase order, and the Customer will reimburse Seller for shipping charges.
Container Fees. If the Customer elects to buy a Good that requires a special shipping container (the “Container”), the Customer will be charged an additional special shipping container fee (the “Container Fee”). The Customer will then have 30 calendar days from the date of shipment to return the same serialized Container and receive a full credit for the Container Fee. The Container must be returned in an undamaged condition for the Customer to receive a full credit for the Container Fee. If the Container is not received within 30 calendar days from the date of shipment, or if the Container is received in damaged condition, or if the Container is lost or stolen, Seller will be under no obligation to issue a credit to the Customer. The Customer shall be obligated to pay all the amounts that would be due and payable to Seller.
Delivery.
The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of Goods. Seller shall not be liable for any delays, loss, or damage in transit.
Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the agreed upon location by the parties (the "Delivery Point") using Seller's standard methods for packaging and Buyer’s shipping instruction of such Goods. Buyer shall take delivery of the Goods within [3-5] days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Payment Terms.
Buyer shall pay all invoiced amounts due to Seller [unless otherwise specified] within [30] days from the date of Seller's invoice. Buyer shall make all payments hereunder by wire transfer, or check, or ACH and in US dollars.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for [60] days following written notice thereof.
Limitation of liability. SELLER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, LOSS OF USE, REVENUE, OR PROFIT, BUSINESS INTERRUPTION, REGARDLESS OF THE FORM OF THE ACTION, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS SOLD HEREUNDER, EXCEPT FOR SUCH DAMAGES ARISING OUT OF SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of three (3) consecutive days following written notice given by it under this Section 18, the other party may thereafter terminate this Agreement upon three (3) days' written notice.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Indemnification. Customer agrees to defend, hold harmless, and indemnify Seller, its affiliated companies, their directors, officers, employees and agents from and against any and all present and future liabilities, damages, losses, demands, fines, penalties and claims of any kind whatsoever, including all costs, expenses and reasonable attorneys’ fees incidental thereto, which are or may be suffered by, accrued against, be charged to, or be recoverable by reason of any loss or damage to property or injuries or death of any person arising from the Good that is the subject of these Standard Terms and Conditions.
Costs and Attorneys’ Fees. In the event that either party incurs fees or costs for a collection agent or attorneys’ services or in connection with its use of an arbitrator, mediator, court system, or other legal proceeding in order to collect a payment of any amounts owed or otherwise enforce any of either party’s rights’ or obligations under any Agreement subject to the Agreement and these Standard Terms and Conditions, the non-prevailing party shall be obligated to pay to the prevailing party any and all costs and fees, including attorneys’ fees, associated directly or indirectly with any such actions by the prevailing party.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the and County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Law, Governing Law, Indemnification, Submission to Jurisdiction, and Survival.
