Terms & Conditions
1. General Conditions, Offers and Contracts
Offer, Sale of any Products or Services described or referred to herein at the prices indicated is expressly conditioned upon the terms and conditions set forth below. Any Offer, Order for or any Statement of Intent to purchase any such Products or Services, or any direction to proceed with engineering, procurement, manufacture or shipment shall constitute assent by Purchaser to said terms and conditions and a representation that Purchaser is solvent. Any additional or different terms or conditions set forth in any communication from Purchaser are hereby objected to by
Aerohm GmbH. (in the following referred to as Seller) and shall not be effective or binding unless assented to in writing by an authorized representative of Seller. Any drawings, sketches, dimensions, weight or other performance data are only binding, if expressly confirmed in writing. Any reasonable technical improvements, changes or deviations to the product are permissible without written consent from the Purchaser. Any additions to, changes in, modifications to, or revisions of an order, proposed by the Purchaser are hereby rejected by Seller unless otherwise expressly agreed to in writing by Seller. Without limiting the generality of the forgoing, Purchaser may, for its own convenience, make use of its own pre-printed forms in connection with correspondence concerning purchases hereunder, but terms stated on such forms shall not affect the terms hereof unless expressly so agreed in writing by Seller. These conditions are accepted with the receipt of the order acknowledgement, latest at the receipt of the Product or Services.
2. Prices, Payment and Title to Products
The price or prices for Products or Services delivered to Purchaser hereunder will be the purchase price set forth in Seller´s quote or invoice, plus any additional charges and less any deductions set forth on Seller´s quote or invoice. The terms of payment will be as specified by Seller on its invoice. If the terms of payment are not specified in Seller´s invoice, Purchaser shall make payment in full upon receipt of the invoice. In the event Purchaser fails to pay Seller the purchase price within the period, specified in the invoice or referred to above, whichever is later, Purchaser shall pay Seller interest on such delinquent payment at the rate of one percent (1%) per month or the highest rate permitted by law. Purchaser shall pay all collection expenses, including but not limited to attorney´s fees, incurrent by Seller in the collection of amounts, owed by Purchaser. Quoted or charged prices do not contain packing, transportation and insurance, unless otherwise agreed. Title to Product will remain in Seller until payment in full is made by Purchaser. Failure to make any payment as provided hereunder shall entitle Seller to cease and stop shipments without notice to Purchaser and Purchaser consents that Seller, its successors and assign, shall be and are herby authorized to retake possession and custody of any shipments already made or received by Purchaser and, upon written notice to Purchaser, cancel the balance or unexecuted portion of this order and hold Purchaser liable for any and all damages incurred by Seller as a result of or in any manner growing out of the default or failure of Purchaser to make such payment.
3. Taxes
Except otherwise set forth on the quote or invoice, Seller´s prices will be exclusive of any federal, state, provincial or local sales, use or excise taxes levied upon or measured by the sales, the sales price or use of products. Seller will list separately on its invoice any such tax lawfully applicable to any such Products and such tax will be payable by Purchaser provided that Purchaser does not furnish to Seller satisfactory evidence of exemption.
4. Termination of Order
Purchaser may terminate an order in whole or in part, for its convenience by giving Seller written notice thirty (30) working days before Seller´s planned shipping date. In the event of such termination, Purchaser will accept Products which were ready for shipment prior to the termination notification. If Purchaser terminates an order, Purchaser shall make fair compensations to Seller for word performed on such order which shall take into account reasonable costs and expenses incurred and commitments already made by Seller in connection with such order and the termination hereof. Purchaser will be advised of the amount of such charges.
5. Excusable Delays
Neither party will be liable for delay in delivery that is not the result of its fault or negligence including without limitation delays arising out of acts of God, acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, war, riots, strikes, freight embargoes, unusually severe weather and any other causes beyond its reasonable control as it relates to obtaining necessary labor, materials or processing facilities.
6. Shipment and Delivery
Seller will use reasonable efforts to effect delivery of the Products or Services in quantities and at times specified by Purchaser, provided however, that failure by Seller to make deliveries as so provided will not constitute a breach or default by Seller and Seller will not be liable for any damages, including consequential and incidental damages, as a result of a failure to make such deliveries, unless Seller shall have otherwise expressly guaranteed delivery in writing. Purchaser will be responsible for the costs and expense of all packing, transportation, insurance and duties of products in transit. Unless otherwise requested by Purchaser, Seller will arrange for shipment of Products hereunder at Purchaser´s cost and expense. Expedited means of shipment will be used only if Purchaser requests such routing.
In all cases, the carrier will be deemed to be an agent of Purchaser and Purchaser will bear the entire risk of loss or damage to Products in transit. Partial deliveries are allowed without written consent. Seller will require also that Purchaser has paid all open accounts before starting delivery.
7. Acceptance of Products or Services
If upon delivery any Products or Services do not materially conform with the requirements of Purchaser´s order, then Purchaser will promptly advise Seller in writing within ten (10) days of receipt of the Products or Services being rejected and the nature of the nonconformity. Seller will then have the right to inspect the Products that Purchaser believes are nonconforming. If the Products are in fact non-conforming, Seller will promptly send Purchaser instructions for disposition, replacement and/or correction as Seller, in its sole discretion may determine is appropriate. If Purchaser does not provide Seller with written notice of any alleged nonconformity of the Products within ten (10) days of delivery, Purchaser shall be deemed to have accepted the Products or Services as satisfactory in all respects.
8. Sale via Internet
Re-Sale of Products via the Internet by Purchaser is only permitted upon written approval by Seller. Sale via Internet Auction Platforms is not permitted. Any presentation of Products or Services on the website of the Purchaser must be conform with the highest industrial standards and with a perfect graphic display and have approval by the Seller.
9. Product Warranty
Prototypes and Experimental Products Any Product identified as a "Prototype," "Sample," "First Article," or intended for experimental, research, or development purposes is sold "AS IS" and "WITH ALL FAULTS." Seller makes no warranties, express or implied, regarding such Products, including but not limited to their performance, durability, flightworthiness, vibrational resistance, or heat resistance. The entire risk as to the quality and performance of such Products is with the Purchaser.
for Products manufactured according to Purchaser’s specifications, drawings, or designs ("Custom Products"), Seller warrants only that, at the time of delivery, the Product conforms materially to the specifications provided by the Purchaser. Seller expressly disclaims any warranty that the Custom Product is fit for any particular purpose or application, including but not limited to use in aircraft or aerospace applications. The Purchaser assumes full responsibility for the design, engineering, and testing of the Product to ensure it meets the requirements of its intended application.
Only to the extent a Product is not a Prototype or Custom Product as defined above: Seller warrants such Product to be free from defects in material and workmanship for a period of three (3) months from the date of shipment or fifty (50) operating hours, whichever occurs first.
The warranties set forth above are exclusive and in lieu of all other warranties. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The warranty does not apply to: (a) Defects arising from designs, specifications, or instructions provided by Purchaser; (b) Products that have been altered, modified, or repaired by anyone other than Seller; (c) Damage caused by misuse, negligence, accident, improper installation, or failure to follow maintenance instructions; (d) Normal wear and tear; (e) Products supplied by third parties (Seller assigns applicable third-party warranties to Purchaser, if any).
eller’s sole obligation and Purchaser’s exclusive remedy for any breach of warranty shall be limited to, at Seller’s option, the repair or replacement of the non-conforming Product or the refund of the purchase price. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR LIQUIDATED DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF USE, GROUNDING OF AIRCRAFT, OR CLAIMS FROM THIRD PARTIES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
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10. Return of Product under Warranty
Seller will have no obligation to Purchaser under the warranty unless and until Purchaser has returned the Product to Seller within the time limits specified above, packing, transportation and handling charges prepaid and provided Seller with a written statement describing the alleged defect. Upon Purchaser’s return of the Product alleged to be defective, Seller will inspect the same and advice Purchaser whether or not Seller will either repair and redeliver the original Product, deliver a replacement Product or issue a credit to Purchaser. Seller’s entire obligation under such warranty will be fully discharged by such repair, replacement or issuance. If Seller does not agree that the product is defective or otherwise determines that the Product is not covered by the above warranty, then Seller will return the Product to Purchaser as is, packing, transportation and handling charges collect.
11. Limitation of Liability
Seller’s liability for any claim of any kind, including negligence and breach of warranty, for any loss or damage resulting from, arising out of or connected with this order, or from the performance or breach thereof, or from manufacture, sale, delivery, resale, repair or use of the Products covered by or furnished under this order shall in no case exceed the purchase price of the Products which give rise to the claim. Seller will also be not responsible for any aircraft or part supplied of Purchaser, parked for repair or modification on Seller’s premises. Purchaser understands and
accepts that hangar space is not always available.
12. Patents and Confidential
Seller will identify and hold harmless Purchaser from and against any and all loss, liabilities and damages resulting from any claims that the manufacture, use, sale or resale of the Products infringe any patent or patent rights, provided however, that such indemnifications will not apply to any such infringement arising out of Purchaser’s use of the Product as a component part of another product or Sellers compliance with Purchasers designs or specifications. In the event of an award arising out of any infringement with respect to Purchasers sales price for Products and Services or Products for which Products are components. Sellers total liability under the clause will not exceed Sellers sale price to Purchaser. In case of confidential information from the Purchaser for a special Product, Seller will make any efforts to keep such information within the company until public is informed from any source outside Sellers influence and Purchaser will keep all project related information from Seller also confidential.
13. Arbitration and Remedies
Seller may, at its discretion, settle any claim or controversy arising out of or relating to this order, or the breach or non-performance of any provision thereof, by arbitration in accordance of the arbitration Rules of the Austrian Chamber of Commerce in effect at the time such claim or controversy arises. Purchaser and Seller agree, that any arbitration shall be initially administered and conducted in the court of Innsbruck, Austria. In the event of Purchaser’s default of this order, Seller shall have available all rights and remedies at law or in equity. Purchaser agrees to pay Seller all costs and expenses, including attorney’s fees, incurred by Seller in exercising any of its rights and remedies. No failure or delay on the part of Seller in exercising any right or remedy shall operate as a waiver thereof. No waiver by Seller of any default shall constitute a waiver by Seller of any additional or subsequent default.
14. Regulatory Laws and/or Standards
The Seller makes no promise or representation that the Products will confirm to any state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the contract between Purchaser and Seller. The Sellers prices do not include the costs of any related inspection permits or inspection fees.
15. Severability and Assignment
If any provision hereof shall be finally determined to be unlawful, then such provision shall be deemed to be severed and every other lawful provision hereof shall remain in full force and effect. Any assignment, transfer, pledge or other disposition of this order or any rights hereunder by the Purchaser, without the written consent of Seller, shall be void.
16. Jurisdiction and Venue
All quotations are made and all orders are accepted by Seller with reference to the laws of the Federal Republic of Austria and the rights and duties of all parties and the construction and effect of all provisions thereof shall be governed by and construed according to the laws of that state. Purchaser hereby submits to the jurisdiction of the court of the city of Innsbruck with respect to any claim or controversy arising out of relating to this order or the breach or non-performance of any provision hereof.
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