Terms And Conditions Of Sale

Except where otherwise specified, this sale is subject to the following terms and conditions

Contract Formation

If this instrument is a quotation, whether or not responsive to a request from the Buyer, it constitutes the offer of Mid-America Aerotech, LLC (hereinafter “MAA”) to the Buyer, and becomes a binding contract under the terms and conditions set forth herein when it is accepted by the Buyer. However, any such acceptance shall be valid only if made within thirty days of the date of this instrument or such other time period specified herein. If this instrument is an acknowledgment, it constitutes MAA’s acceptance of the Buyer’s order, subject, however, to the terms and conditions set forth herein. Upon the creation of a contract, this instrument will recite the entire agreement between the parties with respect to the goods, equipment or services being purchased, and shall supersede any other agreement, writing, or understanding whether made before or after the date of this instrument. Thus, MAA’s contractual obligations are expressly limited to the terms contained herein. The inclusion of any different or additional terms in any other instrument is objected to, and performance by MAA shall occur with the express understanding that only the terms and conditions recited herein shall control

Terms of Payment

  1. All payments are to be made in U.S. funds, and without expense to MAA.
  2. Payment shall be cash with the Order or sight draft attached to a bill of lading (or other shipping documents) at the option of MAA.
  3. When credit is extended by MAA, invoices shall be due and payable within thirty days from invoice date. Any amount unpaid thirty days after shipment is subject to a monthly service charge, on the unpaid balance. However, notwithstanding the foregoing, MAA retains the option to refuse or to revoke credit, and to require immediate payment of all outstanding balances and payment on delivery for all future deliveries.
  4. Buyer agrees to pay any expenses incurred in collecting any unpaid balance of the purchase price, or in recovering possession of goods including reasonable attorney’s fees.
  5. If MAA extends credit to the Buyer, then for the purpose of securing payment and performance of all Buyer’s obligations hereunder, MAA shall retain a security interest in all of the goods being sold pursuant to this agreement. At MAA’s  request, Buyer shall execute and join in executing all financing statements and other instruments, in form satisfactory to MAA, which MAA deems necessary or desirable to perfect its security interest in the goods being sold pursuant to this agreement.

Packing and Shipment

Packing and shipment shall be in accordance with good commercial practice.

Delivery and Title

  1. For orders with delivery inside the United States, FOB shipping point shall apply as provided for in the Uniform Commercial Code. Risk of loss and title shall pass to Buyer at the FOB point.
  2. For orders with delivery outside the United States, MAA and Buyer agree to apply INCOTERMS 2000. Delivery shall be FCA shipping point, unless otherwise agreed by MAA and stated in the order. Risk of loss shall pass to the Buyer as provided for by INCOTERMS 2000. Title shall pass to the Buyer with risk of loss.
  3. Under no circumstances shall MAA have any liability whatsoever for delays, loss of use, or for any indirect or consequential damages arising from any delay or loss of use.
  4. MAA shall not be responsible for the failure to perform any obligation arising hereunder due to events beyond its control. These events shall include, but are not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of public enemy, sabotage, strikes, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials or machinery used by MAA in the manufacture of the goods supplied hereunder, acts of God, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, and acts or regulations or priorities of the Federal, State or local government or branches or agents thereof, government contracts or shipments to purchasers to fulfill contracts.
  5. No claim for shortage in packaging shall be allowed unless reported to MAA, in writing, within ten days after receipt of goods.

Patents

  1. The Buyer shall not receive, as a result of the sale of goods hereunder, any right or license of any kind under any patent owned or controlled by MAA, or under which MAA may be licensed. However, the foregoing provision shall not limit the right of the customer to use and sell such goods, in the event such goods are covered by any such patent.
  2. MAA agrees to defend any suit, foreign or domestic, that any party may institute against the Buyer for alleged infringement of a patent or patents relating to specific devices or apparatus of MAA’s own design and furnished to the Buyer under this contract. However, this paragraph shall apply only to such infringements as shall arise only from the use of such specific devices or apparatus themselves and not as a part of any combination of any other devices, apparatus, and/or parts. Furthermore, MAA’s obligations under this paragraph shall only arise only if the Buyer (a) shall have made all payments then due under this contract; (b) shall give MAA immediate notice in writing of the alleged infringement and of the institution of any suit; (c) shall permit MAA to defend such suit; and (d) shall furnish to MAA all information, assistance, and authority which, in the opinion of MAA’s attorneys, is necessary to defend such suit. MAA shall have no liability under this paragraph for any compromise reached without MAA’s written consent. Unless arising as a direct consequence of litigation which MAA has itself defended under the terms of this paragraph, MAA shall have no liability for any patent infringement. MAA shall also not be required to defend any suits or pay any damages which may arise, directly or indirectly, by reason of the use of any part, device, apparatus, and/or design not furnished by MAA.

Indemnity

If any goods are made in compliance with Buyer’s plans, designs, specifications or instructions, Buyer shall indemnify and hold harmless, and defend MAA from and against any damage, loss, expense, liability, claims, suits, judgments, decrees and costs caused by or relating to the plans, designs, specifications or instructions for such goods, including any patent infringement or alleged infringement.

MAA Standard Product Warranty

  1. MAA warrants that each item of its manufacture shall, at the time of shipment to Buyer, conform to applicable specifications and drawings, and be free from defects in material and workmanship. Design, essential performance, or other provisions expressly stated to be goals or objectives shall not be deemed to be requirements subject to this Warranty.
  2. Unless otherwise specified, MAA’s obligation under this Warranty shall be limited to repair or replacement, at MAA’s option, of any item which within twelve months from date of shipment to Buyer is proven to MAA’s satisfaction to have been nonconforming at the time of shipment. As a condition of this Warranty, Buyer shall notify MAA in writing of any claimed nonconformance immediately upon discovery and shall return the item to MAA for inspection. MAA shall not be responsible for any work done or repairs made by others at any time. Disassembly by anyone other than persons authorized by MAA will void the terms of this Warranty
  3. MAA shall not be responsible for the performance of any product which incorporates items manufactured by MAA unless such performance is expressly designated as MAA’s responsibility under the terms of the written agreement between MAA and the Buyer.
  4. MAA shall not be liable for improper use, installation, accidents, operation or maintenance of items manufactured by MAA, nor for any damage resulting therefrom, or from negligence on the part of Buyer’s employees or agents.
  5. MAA shall not be responsible for any consequential or incidental damages occasioned by failure of any item supplied by MAA, or by failure of any item in which a component manufactured by MAA is incorporated.
  6. Unless previously agreed to in writing, MAA shall not provide field repairs, modifications, or any other field service under this Warranty.
  7. THE WARRANTIES CONTAIN HEREIN ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS AND LIABILITIES. WITH RESPECT TO CONTRACTS DIRECTLY BETWEEN MAA AND THE U.S. GOVERNMENT OR ANY OF ITS AGENCIES, THE RIGHTS AND REMEDIES AFFORDED TO THE GOVERNMENT OR AGENCY BY THIS STANDARD PRODUCT WARRANTY ARE IN ADDITION TO AND DO NOT LIMIT ANY RIGHTS AFFORDED BY ANY OTHER PROVISION OR PROVISIONS OF THE CONTRACT.

Information, Data and Design

Any proposals, prints, brochures, drawings, designs, data or other information furnished to the Buyer by MAA before, after, or contemporaneously with the execution of this contract are intended for confidential use by the Buyer, shall remain the property of MAA, and shall not be used to the detriment of MAA’s competitive position. When given, all such proposals, performance and production projections, prints, brochures, drawings, designs, data and other information are based on MAA’s knowledge and understanding, but are, in all events, estimates only and are not guaranteed or warranted in any respect. The providing of any design information by MAA shall not constitute an assumption of design responsibility unless otherwise expressly assumed by MAA.

Cancellation of Contract

Under no condition may the Buyer cancel his obligations under this contract. Any attempt to do so will entitle MAA, in its sole discretion, to either (a) recover all direct, indirect, and consequential damages arising by reason of such attempted cancellation, or (b) retain as liquidated damages any customer deposit made under this contract.

Applicable Law

In the event of a dispute regarding any of the terms or conditions contained herein, the parties agree that the laws of the State of North Dakota will control.

Assignments

The Buyer’s rights may not be assigned or otherwise transferred to any other person, whether by operation of law or otherwise, without MAA’s prior written approval.

Waivers

Waiver by MAA of any breach of any of these provisions, or its failure to exercise any right, shall not be construed as a waiver of any other breach, or a waiver to exercise any other right.

Indemnification

Buyer will indemnify MAA and hold MAA harmless from any and all claims made by Buyer’s employees or agents for injuries or damages including death, arising from or related to tasks performed under this quotation or contract.

Default

If the Buyer fails to pay any invoice when due, or fails to accept shipments as scheduled, MAA may, at its option and without prejudice to other remedies, either defer further shipments until the default is corrected or cancel MAA’s remaining obligations under the contract.

Buyer’s Authorization

Buyer represents and warrants that the person who executed the offer which this instrument accepts, or who will execute the Buyer’s acceptance of the offer contained in this instrument, has duly executed the relevant documents on behalf of the Buyer, and is duly authorized to so act.

Compliance with U.S. Export Regulations

The Buyer is hereby placed on notice that the technical data or hardware furnished with this quotation or order acknowledgment may relate to articles controlled by the U.S. Government for export and may, therefore, be subject to export licensing requirements and limitations on disclosure or shipment to foreign nationals under U.S. Law. Federal, criminal and civil penalties may result from any violation of these export provisions. BUYER INDEMNIFIES MAA FROM ANY BREACH OF SUCH REQUIREMENTS AND LAWS FOLLOWING BUYER’S RECEIPT OF EXPORT CONTROLLED DATA OR HARDWARE.