| GENERAL TERMS AND CONDITIONS OF SALE |
AIR COST CONTROL
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| 11/07/17 |
ARTICLE 1: SCOPE
These General Terms and Conditions of Sale («T&Cs») define the terms and conditions under which AIR COST CONTROL Pte Ltd (hereinafter the «Seller») shall sell its Products to its Customers (hereinafter the «Buyer»). The term «Product» means all products sold by the Seller.
The contractual relationship between the Seller and the Buyer shall be governed by a Sales Contract which comprises of the following:
• The Purchases Order(s) (POs) (including any written order(s) or confirmation of quotations issued by the Seller for the supply of the Products to the Buyer;
• The particular conditions specified in each offer by the Seller in the PO or otherwise;
• These T&Cs;
• The acknowledgment of receipt (AR) of the order from the Seller.
In case of any discrepancies or inconsistency between the documents that make up a Sales Contract, the order of precedence applicable shall be as referred to in the list above with the last document having the highest precedence.
These T&Cs include all Terms and Conditions herein and apply to all POs placed by the Buyer and shall form an integral part of any Sales Contract between the Seller and the Buyer.
Accordingly, the submission of a Purchase Order shall constitute complete and irrevocable acceptance and compliance by the Buyer of these T&Cs, to the exclusion of any other document issued or submitted by the Buyer. The Buyer shall not be entitled to modify or replace these T&Cs in any way whatsoever without the prior, formal and written consent of the Seller and these T&Cs shall always prevail in the event of any inconsistency between the Buyer’s terms and these T&Cs. Any contrary condition set by the Buyer will therefore be null and void in its entirety without the express consent of the Seller regardless of when it may have been brought to the Seller’s attention.
ARTICLE 2: QUOTATIONS – PURCHASE ORDER
The information available on our commercial documents and on our website www.aircostcontrol.com is given for informational purposes only and does not constitute a formal offer; only the acceptance of a PO by the Seller definitively binds the Seller and the Buyer.
The Seller's confirmation of any quotation is subject to the availability of the relevant Products at the time the PO is received.
Unless explicitly stated otherwise, the validity of any quotation shall be limited to one (1) month. Any quotation provided by the Seller shall not constitute the Seller's recommendations to the Buyer, and the Buyer shall remain responsible for the choice of its Products. Upon the expiry of this one (1) month period, the Seller is entitled to reject or refuse any PO relating thereto or to modify the terms and conditions upon which the PO shall be accepted in the event the Seller wishes to accept the PO.
The Buyer agrees and acknowledges that the Products are susceptible to change and the quality and specifications of the Product may change at any time for any reason whatsoever, including after the issuance of the Buyer's Purchase Order, whether due to changes in any laws and/or regulations of any kind and standards that are applicable to the Products or for any other reason howsoever arising. In such a situation, the Seller shall inform the Buyer accordingly by written notice or otherwise.
POs may be placed in writing, by any means, including fax, letter, e-mail, and, following agreement between the parties, through the internet portal (Web EDI) or other electronic data interchange (EDI) system.
POs received by the Seller shall be binding on the Seller and the Buyer only after written confirmation on the Seller’s part by an acknowledgement of receipt (AR).
For orders placed by a Buyer on the e-commerce website of the Seller, if a Product is sold at an incorrect price or the photos or information of the Product are incorrect, the Seller shall retain the right to refuse or cancel the order placed. This shall apply even if the order has been confirmed and payment made.
If payment has already been made, the Seller shall establish a credit note equivalent to the amount paid by the Buyer.
For any order less than one hundred (100) euros excluding taxes, the Seller reserves the right to bill such fees as it so determines for the requisite shipping costs.
The Buyer agrees and acknowledges that for products delivered in units of length and for parts of low weight (less than 0.5g), the quantities delivered may differ from the quantities ordered within a tolerance of +/- 10% but the Buyer shall have no claims whatsoever against the Seller.
The Buyer shall not be entitled to stipulate any specific conditions regarding any aspect of the Products, including but not limited to, the minimum lifespan of Products at the time of delivery or the delivery of specific documents referred to in the Buyer’s documents (such as EASA or FAA Certifications, test reports, etc.) and the Seller shall be entitled to disregard documents referred to by the Buyer (such as purchasing terms, quality document, etc.) and the absence of any such documents shall not be grounds for the refusal of goods by the Buyer.
ARTICLE 3: PRICE AND PAYMENT
The Seller reserves the right to change any terms and conditions of the PO, confirmation of quotations issued and any part of the Sales Contract between the time the quotation is presented to the Buyer and the time the PO is received by the Seller. The AR is only valid for the final conditions. The quoted price for the Products is, unless otherwise stated in writing by the Seller, exclusive of the cost of any licence required for the registration and/or use of the goods, insurance, purchase tax, custom duty, excise or any other taxes, levies or duties, all of which shall be borne solely by the Buyer.
Bank charges for transfers are the responsibility of the customer. Air Cost Control reserves the right to re-invoice these charges.
The Seller shall specify on its invoices the invoice date and the Products ordered as well as the payment terms agreed upon with the Buyer. The Buyer is responsible for paying bills on the due date. The Seller shall make no discount for early payment.
Interest for late payment shall apply: Such interest shall accrue on the outstanding amount from time to time at the rate of [five percent (5%) per annum] on such unpaid amount of the time by which the payment is delayed until the outstanding amount is paid to Seller in full, such interest to be calculated on a daily basis and paid monthly in arrears. In addition to the above interest payable, the Buyer shall be liable, and shall agree to immediately reimburse the Seller upon demand, for any costs incurred by the Seller in relation to collection of any outstanding amounts owed by you to us including but not limited to legal costs.
For PROFORMA payment, no order shall be prepared until full payment by the Buyer.
The Seller reserves the right to refuse or temporarily suspend the delivery of any Products until full and final payment has been made by the Buyer and received by the Seller.
ARTICLE 4: DELIVERY AND TRANSPORTATION
Delivery times are purely indicative and shall be understood to begin on the date of the AR of the PO on which they appear. The Seller shall not be liable to make good any damages or losses whether arising directly or indirectly out of any delay in delivery. Any delay or partial delivery cannot justify cancellation of orders in progress, payment of damages, or give rise to penalties of any kind, or deductions, regardless of the cause and consequences of these delays.
Unless expressly accepted by the Seller, Products are purchased Ex-Works (Incoterms 2010) and thus always travel at the expense and risk of the Buyer from their availability at the Sellers’ facilities or premises, despite the retention of title clause on the Products referred to in Article 7 below, and whatever the mode of shipment of the Products.
Delivery shall be taken by the Buyer at its own cost and risk, personally or through his agent duly authorized in writing at the Seller’s premises within 7 days of the issue of the written request by the Seller to take delivery of the Products. The Buyer shall be solely responsible for arranging the delivery of the Products with a transport carrier or otherwise. If for any reason (including the failure of the Buyer to secure any licence required for the registration and/or use of the Products) the Buyer fails to take the delivery of the Products at the time when the Products are due and ready for delivery, the Seller shall be entitled, at its option and without prejudice to its rights herein, to terminate the Sales Contract, or if it so desires, to store or remove the Products to such place and for such period as the Seller considers appropriate. The Buyer agrees that such storage or removal shall be at the Buyer’s sole risk. The Buyer shall be liable for and shall indemnify the Seller against all cost and expenses incurred in connection with such storage or removal including insurance charges, road tax and/or maintenance charges. The Seller shall be entitled to charge a fee for such storage or removal or any other action taken by the Seller in connection with the Products. The Seller shall not be responsible for the deterioration, loss, damage or destruction of the Products at any point in time. This provision shall be in addition to and not in substitution of any other payment or damages for which the Buyer may become liable in respect of his failure to take delivery at the appropriate time.
As soon as Products ordered are delivered, it is the responsibility of the Buyer to perform a qualitative and quantitative control of Products, to check references and compliance with the PO and undertake if necessary not to grant discharge to the carrier until after performing these checks.
ARTICLE 5: RECEPTION – NON-CONFORMITY – RETURNS
Title in the Products shall only pass to the Buyer upon full and final payment made by the Buyer and received by the Seller.
The Buyer shall inspect the Products immediately upon notification that the Products are due and ready for delivery and shall within 3 days from such inspection give notice in writing to the Seller of any matter or thing by reason and include the delivery number, if any, of the PO number whereof the Buyer alleges that the Products are not in accordance with this Sales Contract and prove and substantiate such non-compliance with the relevant specifications with the requisite evidence to the satisfaction of the Seller. If the Buyer shall fail to give such notice within the time specified the Products shall be deemed to be in all respects in accordance with this Sales Contract and the Buyer shall be bound to accept and (if payment has prior thereof not been made) pay for the same accordingly.
No returns shall be accepted without the prior written consent of the Seller notwithstanding that non-compliance with the relevant specifications has been validated and confirmed by the Seller. In this case, the Buyer must comply with the Seller return instructions (RMA). It states that the return risks are solely assumed by the Buyer.
The Seller's liability is strictly limited to the replacement in the same quantities or refund of the relevant delivered products recognized to be non-compliant with the order by the Seller, to the exclusion of any damages, and after verification by the Seller or its supplier of such returned Products.
The Buyer’s use of non-compliant goods delivered shall relief the Seller from all liability.
The Seller shall have no liability whatsoever towards Buyer in respect of (i) loss of profits, loss of use or anticipated savings or similar losses; (ii) indirect or consequential damages (even if such losses were reasonably foreseeable or it had been advised of the possibility of these being incurred); regardless whether such liability arises out of breach of contract or warranty, tort (including negligence), product liability, indemnity, contribution, strict liability or any other legal theory whatsoever.
ARTICLE 6: GUARANTEE – RESPONSIBILITY
The Products have a warranty of one (1) year from the date of delivery under the conditions mentioned below.
In every case, the Seller's warranty is limited to the replacement in the same quantities or refund of the Product proven defective by the Buyer to the satisfaction of the Seller to the exclusion of any compensation or damages and provided the Buyer notifies the Seller of the defect immediately upon discovery by any written means during the guarantee period. Defective Products shall be returned to the Seller by the same procedure as that applicable to Products that are proven to be non-compliant with the PO as referred to in Article 5 above.
Excluded from the guarantees provided by the Seller:
- Product defects resulting from a lack of maintenance, or monitoring and generally all tampering non-compliant with the written instructions of the Seller and detailed in the technical manuals and / or datasheets, or disregarding the applicable standards or the state of the art;
- Product defects that come from a cause unrelated to the Product or any changes or intervention of the Buyer or a third party without the prior written consent of the Seller;
- The warranty does not apply to normal wear and tear;
- Defects that are a result partly or fully due to damage or accidents attributable to the general actions of the Buyer or a third party;
- The warranty cannot be applied in the case of a defect resulting from instructions given to the Seller by the Buyer;
- Damages caused by force majeure as defined in Article 9 or fortuitous incidents that can be imputed to natural disasters.
The Buyer retains sole responsibility for the use of Products supplied by the Seller and their suitability for their use on aircrafts by the Buyer and its customers.
The Buyer must ensure that its premises and storage conditions are suitable for the proper storage of the Products and provide the security guarantees required by relevant laws and regulations. No guarantee is provided as such by the Seller.
In no case is the Seller liable for direct or indirect damage, foreseeable or not, of a possible failure of the Product sold. Therefore, no compensation can be claimed from the Seller.
ARTICLE 7: RETENTION OF TITLE
The Seller retains full legal and beneficial ownership of the Products delivered until the actual receipt of the full price in principal and associated costs.
The default by the Buyer on payment dates or any portion of the price may lead to the implementation of the retention of title herein without the need for giving any prior notice.
Products shall be immediately returned to the Seller at the Buyer's expense. It is forbidden for the Buyer to dispose, resell, pledge, charge, create any security interest or transform Products which have not been paid for in full. In the event that the Products are sold by the Buyer, the Buyer shall hold the whole of the proceeds of sales on trust for the Seller and shall place the same in a separate account so as to be identifiable as being in the beneficial ownership of the Seller.
The Buyer shall indemnify the Seller against all losses damages suffered to the extent the Products are unpaid and are lost, stolen or damaged due to any reason howsoever arising and shall also indemnify the Seller against all losses damages costs charges and expenses including legal fees incurred by the Seller in connection with the assertion and enforcement of the Seller's rights under this Article.
ARTICLE 8: INTELLECTUAL PROPERTY
The Buyer acknowledges that the Seller and/or its Affiliates are the owner of all Intellectual Property and the goodwill attaching to the Products and that its only right in respect thereof is to use them for the purposes and during the subsistence of these T&Cs in accordance with the terms hereof.
The Buyer acknowledges that it will not acquire any rights in respect of the Intellectual Property and that all those rights and goodwill are, and will remain, vested in the Seller and/or its Affiliates (as the case may be). The Buyer shall not do or omit to do anything by which the goodwill and reputation associated with the Products might be diminished or jeopardized.
The Buyer shall sell the Products under the Seller’s trademarks either in the same packaging in which the Products are supplied by the Seller to the Buyer or shall ensure that each reference to and use of any of the Seller’s trademarks on the packaging or otherwise is in a manner from time to time approved by the Seller.
The Buyer shall, at the expense of the Seller, take all such steps as the Seller may reasonably require to assist the Seller in maintaining the validity and enforceability of the Intellectual Property. In particular, the Buyer shall at the request of the Seller execute such registered user agreements or licenses in respect of the use of the Intellectual Property in the Territory as the Seller may reasonably require.
The Buyer must not use any trademark owned by or licensed to the Seller, or any substantially identical or misleadingly similar words or logos, in a company name, business name or internet or email address. Similarly, the Buyer must not apply to register a trade name, business name, company name or internet address which incorporates any trademark owned by or licensed to the Seller, or any substantially identical or misleadingly similar words or logos. The Buyer shall not use or file any trademarks or trade names so resembling any of the Seller’s trademarks as to be likely to cause confusion or deception.
The Seller may from time to time permit the Buyer to make use of the Seller’s trademarks in connection with the marketing and promotion of the Products upon such terms and conditions as the Seller may in its absolute discretion think fit.
The Buyer shall inform the Seller immediately of any infringement or imitation of any of the Seller’s trademarks and of any passing off of any goods as the Products of which it may become aware and shall assist the Seller at its request to deal therewith.
For the purpose of these T&Cs:
“Affiliate” means with respect to any entity, any person which controls, is controlled by or is under common control with such entity. For the purpose of this definition, “control” shall mean the authority or ability to control an entity’s business or affairs, which authority shall conclusively be presumed to exist upon possession of direct or indirect beneficial ownership or power to direct the vote of more than 50% of the votes entitled to be cast or power to control the composition of the board of directors or board of management of an entity.
“Intellectual Property” shall mean any patent, copyright, registered or unregistered design, design right, registered or unregistered trademark, service mark or other industrial or intellectual property right subsisting in respect of the Products, and includes applications for any of them.
ARTICLE 9: STRENGHTS
The Seller shall not be liable for the total or partial breach of its obligations hereunder and shall not be responsible for any damage to the extent that such failures or damage were attributable to causes over which the Seller has little or no power. Purely by way of example, these causes include, among others, an industrial dispute or movement, regardless of the type (both at the premises of Seller and the Buyer, as well as third parties involved in the sale), fire, explosion, flood or other natural disaster, riot or war (declared or not), a shortage or rationing of labor, materials, components, transport, energy, delay caused by sub-suppliers or contractors, compliance with new laws or regulations (founded or not), embargo, etc.
If the agreed delivery date cannot be met due to the aforementioned causes, the Seller shall have sufficient additional time it requires to overcome these disturbances.
ARTICLE 10: EXPORT CONTROL
The sale, resale or other disposition of any technology or products and related documentation are subject to the laws, regulations and orders of Singapore on export controls and may be subject to laws and regulations on export control and / or imports from other countries. The Buyer agrees to comply with all such laws, rules and of the orders and acknowledges that it shall not export, directly or indirectly, any Product to any country for which such exports or transmission is restricted or prohibited. The Buyer acknowledges that it is responsible for obtaining any export, re-export or import license as may be required.
ARTICLE 11: INFORMATION REGARDING THE COMPLIANCE OF PRODUCTS WITH ENVIRONMENTAL REGULATIONS
The information on the Products, including information related to specifications, uses or compliance with legal requirements or other requirements of a Product are obtained by the Seller from its suppliers and other sources believed to be reliable and is provided “as is”. The Seller recommends that all product information is validated before using such information on the Product or to take action according to said product information. The Seller undertakes no obligation as to the accuracy or completeness of information on the Products and the Seller disclaims any representations, warranties and liability, under any theory on product information, including any implied warranty of merchantability, fitness for a particular purpose, title and / or non-violation of any laws relating to such Products. All product information is subject to change without notice. The Seller is not responsible for typographical or other errors or omissions of information on the Products.
ARTICLE 12: RENUNCIATION
No failure or delay on the part of the Seller in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of such right or power preclude any other further exercise of any other right or power under these T&Cs.
ARTICLE 13: APPLICATION
If a court of competent jurisdiction considered one of the terms of these Terms to be invalid, such invalidity shall not affect the validity of the other terms of these T&Cs.
ARTICLE 14: APPLICABLE LAW
The validity, construction and performance of the Sales Contract and any other documents to be entered into pursuant to it (if any) shall be construed and governed by Singapore law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
ARTICLE 15: JURISDICTIONAL ALLOCATION
The Seller and the Buyer shall first try to amicably settle any claims, disputes and matters of difference arising out of or connected with the Sales Contract.
If an amicable settlement cannot be reached, such dispute arising out of or in connection with the Sales Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration. Such dispute shall be submitted to arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator to be appointed by the Chairman of the SIAC. The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the Buyer and the Seller.
In the event that either party elects to seek interim/temporary injunctive relief before any court having jurisdiction, such party shall not be bound by the provisions referred to above.
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