The sale of the services or articles by Aerothrust shall be governed by the terms and conditions in any existing written contract between customer and AeroThrust covering such services or articles. If there is no such existing written contract, AeroThrust hereby offers to sell such services or articles to Customer only upon the terms and conditions set forth below. These conditions shall take precedence over any terms or conditions that may appear in Customer’s purchase order form, and no provision, term, or condition of such form, except as expressly stated herein, shall be binding on AeroThrust. AeroThrust’s acceptance of Customer’s order is expressly made conditional to Customer’s acceptance of these terms and conditions. Customer’s acceptance shall be conclusively presumed from Customer’s failure to object in writing within 30 days of redelivery of goods or from Customer’s acceptance of all or any part of Customer’s order.
AeroThrust warrants that its workmanship herein will be free from defects in workmanship. As used herein, defects in workmanship shall mean a failure on the part of AeroThrust to conform to accepted industrial practices as prescribed by applicable Federal Aviation Administration regulations and applicable manufacturer’s specifications.
AeroThrust’s liability under the foregoing warranty contained in Paragraph 1 is expressly limited to the correction of any such defect and shall expire after the components serviced or overhauled have been operated 50 hours or at the expiration of 30 days after the redelivery to Customer, whichever shall first occur. Such Warranty shall be effective only if the defective component serviced or overhauled is returned to AeroThrust’s Miami Facility at Customer’s expense, together with particulars, in writing, of the nature of the alleged defect. Any expenses incurred in correcting the defect which involve removal, replacement, or installation of such defective part, transportation charges, and any and all sales taxes, duties, imports, or excise thereon shall be borne by Customer. The warranty shall not be effective unless (1) the engine and components have been maintained subsequent to the completion of AeroThrust’s performance hereunder in accordance with the current approved standards of the Federal Aviation Administration as set forth in current applicable maintenance manuals; (2) the engine and components have been used under normal operating conditions and have not been subject to misuse, and (3) notice of the claimed defect is received by AeroThrust within fifteen (15) days of the occurrence. AeroThrust shall have the sole right to determine whether a defective item shall be repaired or replaced. Material purchased from outside sources shall carry the Warranty as furnished by the supplier of such material in lieu of an AeroThrust warranty.
The warranties of representations contained herein are expressly in lieu of, and Customer hereby waives, any and all other warranties, agreements, guarantees or representations, whether express, implied, arising by application of law, or otherwise, including any warranty of merchantability, fitness for a particular purpose, value, condition, design, operation, or other warranty of any kind or nature. All conditions, warranties or representations, whether express, implied, or statutory, including strict liability in tort or otherwise, are expressly excluded with respect to AeroThrust’s performance hereunder and no agreement extending this warranty will be binding on AeroThrust unless in writing and sign by a duly authorized AeroThrust officer or representative.
AeroThrust will use its best efforts to comply with any established work redelivery requirements hereunder but shall in no event be liable or responsible for delays in the completion of the work and for late delivery to customer due to force majeure, strikes or other labor disturbance, war, civil disturbance, fire, lack of timely receipt of required parts or material or other causes beyond AeroThrust’s control or not occasioned by its fault or negligence.
In the event that AeroThrust shall fail to perform work described herein or any other work or services relating to the components described herein or shall be delayed in any performance hereunder, Customer shall be entitled, during the period of such failure to perform, to utilize other facilities for the performance thereof, but in no event shall AeroThrust be liable or responsible for consequential or incidental damage or economic loss of any nature (including without limitation such as shall result from cancellation of flights and/or loss of revenue) arising out or resulting from the failure to perform or any delay in performance, whether such delay is excused under Paragraph 4 or not.
If no labor, material, or third party vendor rates are specified on the face thereof, AeroThrust’s standard charges for the classifications or work performed or materials supplied shall be applicable.
Customer will be charged interest at the rate of 12 percent (12%) per annum on all outstanding balances. All invoices shall be paid upon presentation, unless otherwise provided, without deduction, offset or defense. Subject to the warranty provision of Paragraph 1, satisfactory performance of the services provided for herein hall be conclusively presumed upon redelivery.
Should suit for collection of amounts due hereunder become necessary, AeroThrust shall be entitled to its costs of suit including reasonable attorney’s fees at all trial and appellate levels
AeroThrust shall not be liable for loss, damage, or destruction of Customer’s engine, components, or other property in the care and possession of AeroThrust pursuant hereto unless caused by the gross negligence of AeroThrust, its officers, agents or employees. AeroThrust shall have no responsibility for, and Customer will bear the cost of and indemnify and hold AeroThrust harmless from, any and all claims, costs, expenses or damages asserted against or incurred by AeroThrust resulting from the use of the engine or components subsequent to the maintenance services performed by AeroThrust under this agreement unless such claims, costs, expenses or damages result from the gross negligence of AeroThrust, it’s officers, agents, or employees.
In the event of loss or destruction of property, the liability in Paragraph 9 above shall be limited to the value thereof at the time of its loss or destruction and in the event of repairable damage, to the cost of repair of such damage by AeroThrust if it can repair the damage, otherwise by a reputable repair facility designated by AeroThrust
Customer agrees to defend, indemnify and hold harmless AeroThrust, its officers, agents, or employees from and against all claims, suits, liabilities, damages, and losses, including attorneys’ fees, costs and expenses related thereto, which may be suffered by, accrue against, be charged to or receivable from AeroThrust by reason of damage to, loss of, or destruction of any property of any person or persons, and by reason of injuries to or death of any person or persons which may now or hereafter arise out of Customer’s use of the items serviced by AeroThrust pursuant to this agreement.
Aerothrust shall have a lien upon Customer’s engine and/or components for the cost of all services and materials provided by AeroThrust hereunder including, without limitation, reasonable compensation for storage following notification to Customer that the services to be furnished hereunder have been completed.