The following document outlines Spirit’s terms and conditions for the sale of goods and services:
1. FORMATION OF CONTRACT. The terms herein constitute the basis on which Seller offers to sell the Parts described herein to Buyer. Acceptance is strictly limited to the terms and conditions in this offer. Unless specifically agreed to in writing by Seller, Seller objects to, and is not bound by, any term or condition that differs from or adds to this offer.
2. SHIPMENT, TITLE AND RISK OF LOSS. Parts shall be delivered F.O.B. point of shipment. Buyer shall select the carrier and mode of transportation. Seller will include copies of documentation supporting prepaid freight charges (e.g., carrier invoices or UPS shipping log/manifest), if any, with its invoices. Buyer shall be responsible for costs of insurance and transportation and for all import duties, taxes, or other expenses incurred or licenses or clearance required at any port of entry and destination.
Title and risk of loss or damage to the Parts sold shall pass to Buyer upon delivery to a carrier F.O.B. point of shipment.
3. QUALITY CONTROL AND INSPECTION. Seller maintains a quality control and inspection system independently certified to ISO 9001 and AS9100 for the parts purchased under this contract. Seller Metrology systems have been independently certified to ISO 17025 for services provided under this contract.
4. ACCEPTANCE AND REJECTION. Buyer acceptance of the Parts shall be conclusively presumed unless Buyer gives written notice of a defect within ten (10) days after receipt. If Seller delivers non-conforming Parts, Seller will at its option and at Seller's expense promptly correct or replace the Part(s).
5. WARRANTY. Seller warrants that at the time of delivery all Parts furnished hereunder shall be free from defects in material and workmanship. The warranty for products manufactured for installation on aircraft models 777-200, -300 or 737-600, -700 -800, -900 or new aircraft models designed and manufactured with similar or new technology, shall run for a period of forty-eight (48) months from the delivery of such parts to Customer. The warranty period for a Product manufactured for installation on any other Boeing aircraft model is thirty-six (36) months from delivery of such parts to Customer. The Buyer shall give Seller written notice describing the defect immediately upon discovery of the defect. If it is shown to Seller's satisfaction that the Parts fail to conform to this warranty, Seller shall at its option and at its expense either repair or replace the Parts or credit Buyer's account for such Parts. This warranty extends only to the Buyer.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND THE REMEDIES OF BUYER ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT IN ANY PARTS PROVIDED UNDER THIS CONTRACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER.
6. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. SELLER WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY) OR IN TORT, AND WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER, OR OTHERWISE, FOR DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, REVENUE OR PROFIT BY BUYER OR ANY CUSTOMER), OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THIS CONTRACT INCLUDING ANY NON-CONFORMANCE OR DEFECT IN ANY PARTS PROVIDED UNDER THIS CONTRACT.
7. TAXES. Buyer is liable for and shall pay all taxes, impositions and charges imposed by any domestic or foreign taxing authority arising out of or in connection with this contract. "Taxes" are defined as all taxes, fees, charges or duties and any interest, penalties, fines or other additional tax, including but not limited to sales, use, value added, gross receipts, stamp, excise, transfer and similar taxes, or other taxes imposed in connection with the performance of this contract, except U.S. federal and Kansas state income taxes imposed on Seller. Buyer will promptly reimburse Seller on demand for any Taxes that are imposed on and paid by Seller or for which Seller is responsible for collection in connection with this contract.
8. INVOICES AND PAYMENT. Payment shall be made in United States Dollars. One of the following provisions will apply and will be designated by the Seller in the acknowledgement to Buyer's order:
(a) Seller shall forward its invoice to the address specified in this contract. Payment shall be due thirty (30) days from the receipt of a correct invoice.
(b) Payment shall be made by electronic funds transfer. Buyer shall transfer funds within 24 hours from receipt of a correct invoice.
If such invoice or any part thereof shall not be paid, it is agreed that Buyer shall pay to Seller with the payment of any such unpaid amount a FINANCE CHARGE computed on a monthly periodic rate of one percent (1%) per month which is an ANNUAL PERCENTAGE RATE of twelve percent (12%).
9. CANCELLATION. If Buyer cancels the Order, Buyer shall pay Seller all costs reasonably incurred by Seller, in proceeding with this Order prior to cancellation. This cancellation charge will be no less than $100.
10. FORCE MAJEURE. Seller shall not be liable for delays in performance from causes beyond the control and without the fault or negligence of Seller. Examples of these causes are (a) acts of God or of the public enemy, (b) acts of the Government in either its sovereign or contractual capacity, (c) fires, (d) floods, (e) epidemics, (f) quarantine restrictions, (g) strikes, (h) freight embargoes, (i) unusually severe weather, and inability, after due and timely diligence, to obtain raw materials. Seller shall notify Buyer in writing within 10 days after the beginning of any such cause.
11. GOVERNING LAW AND JURISDICTION. This contract shall be governed by and construed in accordance with the laws of the state of Kansas except that Kansas' choice of laws rules shall not be invoked for the purpose of plying the law of another jurisdiction. Buyer irrevocably consents and submits itself exclusively to the jurisdiction of the applicable courts of the Eighteenth Judicial District of the state of Kansas and the federal courts of the state of Kansas for the purpose of any suit, action or other judicial proceeding arising out of or related to this contract. Buyer and Seller shall comply with all applicable statutes and government rules, regulations and orders, including those pertaining to United States Export Controls.
12. ENTIRE AGREEMENT. This contract contains the entire agreement of the Parties and supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter of this contract. No amendment or modification of this contract shall bind either party unless it is in writing and is signed by Buyer's and Seller's authorized representatives.
13. IMPORT/EXPORT.
If the Parts ordered hereunder are intended for shipment outside the United States, the following additional provision shall apply:
(a) In performing the obligations of this contract, both Parties will comply with United States export control and sanctions laws, regulations, and orders, as they may be amended from time to time, applicable to the export and re-export of goods, software, technology, or technical data ("Items") or services, including without limitation the Export Administration Regulations ("EAR"), International Traffic in Arms Regulations ("ITAR"), and regulations and orders administered by the Treasury Department's Office of Foreign Assets Control (collectively, "Export Control Laws").
(b) The Party conducting the export shall be responsible for obtaining the required authorizations. The Party conducting the re-export shall be responsible for obtaining the required authorizations. Each Party shall reasonably cooperate and exercise reasonable efforts to support the other Party in obtaining any necessary licenses or authorizations required to perform its obligations under this contract.
(c) The Party providing any Items under this contract shall, upon request, notifies the other Party of the Items' Export Control Classification Numbers ("ECCNs") as well as the ECCNs of any components or parts thereof if they are different from the ECCN of the Item at issue.
(d) Each Party represents that (i) the Items, and the parts and components thereof, it is providing under this Agreement are not "defense articles" as that term is defined in 22 C.F.R., §120.6 of the ITAR, and (ii) the services it is providing under this Agreement are not "defense services" as that term is defined in 22 C.F.R.,§120.9 of the ITAR. The Parties acknowledge that this representation means that an official capable of binding the Party providing such Items knows or has otherwise determined that such Items, and the parts and components thereof, are not on the ITAR's Munitions List at 22 C.F.R. §121.1. Each Party agrees to reasonably cooperate with the other in providing, upon request of the other Party, documentation or other information that supports or confirms this representation.
(e) To the extent that such Items, or any parts or components thereof, were specifically designed or modified for a military end use or end user, the Party providing such Items shall notify the other Party of this fact and shall also provide the other Party with written confirmation from the United States Department of State that such Items, and all such parts or components thereof, are not subject to the jurisdiction of the ITAR.
14. WAIVER AND SEVERABILITY. Any failure, delay, or forbearance by Seller in enforcing any provision of this contract will not be construed as a waiver or relinquishment of such provision. If any provision of this contract is or becomes void or unenforceable by law, the remainder shall be valid and enforceable.
15. ASSIGNMENT. This contract shall not be assignable by Buyer without the prior written consent of Seller.
16.
INSOLVENCY OF BUYER. Seller may terminate this contract in the event of (a) Buyer's suspension, dissolution or winding-up of Buyer's business, (b) Buyer's insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due, (c) the institution of reorganization , liquidation or other such proceedings by or against Buyer or the appointment of a custodian, trustee, receiver or similar person for Buyer's properties or business, (d) an assignment by Buyer for the benefit of its creditors, or (e) any action of Buyer for the purpose of effecting or facilitating any of the foregoing.
Contact:
Contracts Department
Spirit AeroSystems, Inc.
Attn: Contracts Department
P.O. Box 780008
MC K06-95
Wichita, KS 67278-0008
Phone: (316) 207-1958