The following outlines Spirit’s terms and conditions for the sale of goods and services:
1. FORMATION OF CONTRACT. Buyer makes a firm offer to purchase the Parts described in an order submitted 1) through Seller’s website at http://www.spiritaero.com; or 2) by fax, email or other contact with Spirit’s Customer Service Desk (the “Order”) using the procedures described in such website and under these Terms and Conditions. Except as otherwise specified herein, Seller accepts Buyer’s offer at the earlier of when (a) Seller sends Buyer a written acceptance (by e-mail, fax, or otherwise), (b) Seller ships Buyer’s Order, or (c) Seller accepts by the signature of its Contract Manager. Seller’s acceptance and this Agreement is conditioned on Seller’s on-going credit review and approval of Buyer and Seller’s on-going determination that Buyer and this agreement comply with all applicable laws and regulations, including without limitation, FAA regulations, Export Control Laws (as defined below), and anti-bribery laws, and Seller’s compliance policies and programs. Without limiting Seller’s other remedies, Seller may require payment in advance should it determine that Buyer’s credit is unsatisfactory. Seller reserves the right to make partial shipment of one or more Parts contained in the Order, and unless otherwise specified in Seller’s written acceptance, partial shipment of an Order shall be acceptance of only that portion of an Order. For Parts not currently in Seller’s inventory, Seller may either (x) place such Parts on backorder and notify Buyer of such status, unless such Parts will be in Seller’s inventory within thirty (30) days, or (y) in Seller’s sole discretion, terminate this Agreement with respect to Parts not in Seller’s inventory by notice to Buyer. Notwithstanding the foregoing, acceptance is strictly limited to the terms and conditions in this Agreement. These Terms and Conditions will apply to Seller’s invoice referred to in Section 7 into which these Terms and Conditions are incorporated. Seller objects to and rejects any provision additional to or different from the terms hereof that may appear in Buyer’s purchase order, acknowledgement, confirmation, writing, or in any other prior or later communication from Buyer to Seller, or arising out of course of dealing or usage in the trade, unless such provision is expressly agreed to by Seller in a writing signed by Seller. Buyer’s commencement of performance shall in all cases constitute Buyer’s unqualified and unconditional acceptance of the terms and conditions of these Terms and Conditions and Seller’s invoice.
2. SHIPMENT, TITLE AND RISK OF LOSS. Parts shall be delivered FCA (as defined in Incoterms 2010) Seller’s facility (location designated on Seller’s acknowledgement). 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. Unless expressly stated in writing by Seller, all shipment and delivery dates are estimates. Title and risk of loss or damage to the Parts sold shall pass to Buyer upon delivery to a carrier FCA point, as applicable.
3. ACCEPTANCE AND REJECTION. Buyer’s irrevocable 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). If Buyer returns a part for convenience, the part must be a part that Seller normally keeps in stock, Seller must be notified and agree to the return of the part, the part must be returned within 30 days of purchase, and the part must be in pristine condition in an unopened container. Parts returned for convenience will be charged a 10% restocking fee.
4. 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 DESCRIBED IN THIS SECTION 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.
Seller’s warranty obligations described in this Section are subject to the following conditions:
If Seller determines that the Part(s) are not covered by the warranty described in this Section, Buyer will pay Seller for work performed and material furnished in connection with the teardown, investigation, reassembly, and any authorized repair or maintenance services performed, in accordance with Seller’s then current charges.
5. LIMITATIONS. 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, WITHOUT LIMITATION, ANY NON-CONFORMANCE OR DEFECT IN ANY PARTS PROVIDED UNDER THIS CONTRACT. OR DELAY IN PERFORMANCE. WITHOUT LIMITING THE FOREGOING, SELLER’S MAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO SELLER FOR THE PARTS SUBJECT TO THE CLAIM. THE PARTIES AGREE THIS PROVISION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
No action may be maintained by Buyer unless written notice of the claim is delivered to Seller within thirty (30) days after the event subject to the claim first becomes known to Buyer, but in no case may Buyer maintain an action unless it is brought within one (1) year after the cause of action accrues.
6. TAXES. Buyer is liable for and shall pay all taxes, impositions and charges imposed by any U.S. or non-U.S. 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, custom, withholding, excise, transfer and similar taxes, or other taxes imposed in connection with the performance of this contract, except U.S. federal and 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. If Buyer is required by the legal requirements of any applicable jurisdiction to deduct any withholding tax from payments made to Seller under this Agreement, the amount paid to Seller shall be increased such that, after the withholding and payment of tax on such amounts, Seller shall receive the amount payable to it hereunder determined without regard to such withholding tax.
7. 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 date of the invoice,
Or,(b) Payment shall be made by electronic funds transfer. Buyer shall transfer funds within 24 hours from date of 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%).
8. FORCE MAJEURE. Seller shall not be liable for delays in performance from causes beyond the reasonable control of Seller. Examples of these causes include, but are not limited to (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, (j) earthquakes, and (k) inability, after commercially reasonable diligence, to obtain raw materials. Seller shall notify Buyer in writing within 10 days after the beginning of any such cause.
9. 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 applying 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 district courts situated in the District of Kansas for the purpose of any suit, action or other judicial proceeding arising out of or related to this contract. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that this Agreement, all correspondence, and any documentation arising out of or related to this Agreement will be in the English language and the American version thereof.
10. NOTICES. Any noticed required or allowed under this agreement must be in writing and delivered to Seller at the address specified at the end of these Terms and Conditions and to Buyer at the address stated in the Order or the place of delivery of the Parts, or such other address as a party may provide to the other party by like notice.
11. INTERPRETATION. Headings used in these Terms and Conditions are for the convenience of the parties and do not form a part of or may be used to construe this agreement. No consideration will be given to the fact or presumption that one party had a greater or lesser hand in drafting this agreement. Neither party has an employee, agent, “borrowed servant,” partner, fiduciary, or other relationship, other than buyer and seller, and except as expressly stated herein, neither party has the right to control or direct the other party.
12. ENTIRE AGREEMENT. These Terms and Conditions and the Order contain 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. When in conflict, these Terms and Conditions control over the Order. No amendment or modification of this contract shall bind either party unless it is in writing and is signed byauthorized representatives of Buyer and Seller.
13. IMPORT/EXPORT AND COMPLIANCE.
(a) In performing the obligations of this contract, Buyer will comply with all applicable statutes and government rules, regulations and orders, Spirit’s Ethical Business Conduct Policy and Procedures, as amended from time to time and available here and the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act of 2010, and any other anti-bribery laws and regulations of any applicable jurisdiction. Buyer will further 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 all regulations and orders administered by the U.S. Department of Treasury, 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) Buyer shall not, without the prior express written consent of Seller, as authorized by its Contract Manager, use the parts in any way involving military end-customers other than the U.S. government. This restriction shall apply to any use, sale, proposal or offer to sell or provide parts to any military end-customers other than the U.S. government anywhere, and shall include any national Army, Navy, Air Force, or other agency of national defense, as well as defense contractors where Buyer knows or has reason to know that the part is likely to be used by, delivered to or benefit a defense agency anywhere.
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. TERMINATION. Without limiting any other provision of this Agreement, Seller may terminate this agreement at any time by giving thirty days (30) written notice to 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, (e) any action of Buyer for the purpose of effecting or facilitating any of the foregoing, or (f) in the event that Seller suffers a loss of tooling necessary to produce such parts. Buyer agrees that Seller’s rights to terminate this Agreement are reasonable, and that upon termination, Seller shall not be responsible to Buyer and Buyer shall not make any claim against Seller for any payment or indemnity for loss of goodwill, loss of profit, investments made, or otherwise.
17. WAIVER OF IMMUNITY. Buyer unconditionally and irrevocably agrees that the execution, delivery, and performance of this Agreement constitutes private and commercial acts rather than public or governmental acts, and agrees that in the event any legal proceedings are brought against it or its assets in relation to this Agreement, no immunity (sovereign or otherwise) from such legal proceedings shall be claimed by it or on behalf of it, or with respect to its assets. Buyer hereby waives any such rights or immunity (sovereign or otherwise) which it or its assets now have or may acquire in the future, to the maximum extent permitted by applicable law.
18. ATTORNEYS’ FEES; EXPENSES. Buyer agrees to reimburse Seller for the costs Seller incurs (including attorneys’ fees) in any action or proceeding brought to enforce any provision of this Agreement, or where any provision is validly asserted by Seller as a defense.
Spirit AeroSystems, Inc.
Attn: Contracts Manager
P.O. Box 780008, MC K06-95
Wichita, KS 67278-0008
Phone: +1 (316) 523-0064