RESURGENT AVIATION SOLUTIONS, LLC TERMS AND CONDITIONS OF SALE AND USE (GOODS AND SERVICES)

 

These Terms and Conditions of Sale and Use (herein “T&Cs”) shall remain in effect between the parties until terminated as described in Article IX (General). These Terms and Conditions shall govern all sales transactions for Goods and Services (as defined herein) between you (herein “You” or “Your”) and Resurgent Aviation Solutions, LLC (herein “RAS”), a Illinois corporation. By accepting receipt of the services, components, parts, software, manuals, documents, intellectual property and/or materials tendered hereunder (collectively, the “Goods”), You represent that You have read and agree to all of the T&Cs herein. If You do not agree with these T&Cs, do not install, keep, use or employ the Goods and You may return the Goods for refund or credit as set forth herein. In the case of services (herein “Services”) anticipated to be performed hereunder, if You do not agree with the following T&Cs then do not tender Your aircraft or component (herein “Aircraft”) to RAS for Services. Receipt of Goods and/or tendering of Your Aircraft for Services will constitute deemed acceptance of the following T&Cs.

 

I. TERMS OF SALE A.) All prices for Goods are sold with prepaid terms, FOB RAS’s dock (FOB origin for Goods shipped from a third party). Unless otherwise stated, prices for Goods and Services do not include freight, insurance, taxes or other similar charges. All Services are quoted and priced to include a discount of 3.75% for cash payments, which payment shall be in the form of wire transfer or ACH transfer as acceptable methods of payment. Company checks may be accepted if pre-approved in advance by RAS or for amounts less than $7,500. Credit Card payments are subject to standard pricing which will be the total discounted invoice amount divided by .9625.

 

B.) The amount of all Federal, State or Local taxes applicable to the sale, use or transportation of the Goods or Services and all duties, tariffs or other similar such levies or impositions, shall be added to the price and paid by You, except where You furnish an appropriate exemption certificate therefrom.

 

C.) All Goods are sold on an exchange basis unless otherwise noted in writing. As such, the price for Goods sold hereunder may include a “core” charge which core charge will be refunded or credited to You upon return of a serviceable core to RAS. At RAS’s sole discretion, core charges may be added to the invoice at the time of sale and are due at invoicing, or may be placed in abeyance until the 15-day core return period has expired. Cores that are not returned within fifteen (15) calendar days of shipment of Goods from RAS or that are damaged beyond economical repair, or require extraordinary or non-standard repairs are not eligible for a core charge refund or credit, or may only be eligible for a partial credit as solely determined by RAS. If core charges were not applied at time of sale, You will be charged for such core charge and agree to pay the same. Core returns and refunds are further addressed in Article VI (Returns) below. RAS reserves the right to refuse any/all future sales to You due to non-compliance with this section.

 

D.) Except as stated otherwise herein regarding Intellectual Property Rights; all rights and title to the Goods shall pass to You upon; (1) payment in full for the Goods and shipment of the Goods from the FOB point or (2) completion of the work and payment in full for the Services.

 

E.) An expressed mechanic’s lien is hereby acknowledged by You in RAS’s favor for any work performed on Your Aircraft, power plants and all other components to secure the amount of repairs thereto as afforded by applicable law. RAS may retain possession of Your Aircraft and/or Goods until all charges are paid in full. The rights and remedies of RAS with respect to any of the T&Cs of this order are cumulative and shall be in addition to all other rights and remedies afforded RAS under applicable State law. No action taken by RAS hereunder shall be construed or interpreted as a sole election of remedies and will in no way diminish, restrict or otherwise waive or prejudice any other right or remedy.

 

F.) Failure to maintain Your Aircraft in accordance with RAS recommended maintenance program(s) and/or FAA required maintenance program(s), including, but not limited to, using RAS recommended parts, tools, tooling and procedures voids all RAS warranties, expressed and implied, specific to the Aircraft, Goods and Services.

 

II. LICENSE GRANT (Applicable to Software/Intellectual Property) A.) If these T&Cs accompany the sale of software, firmware, manuals, documents or any other intellectual property of RAS then the following license provisions shall apply to this transaction: RAS grants to You a limited, non-exclusive, non-transferable (except as provided herein) license to; (1) use a single copy of the software in object code form (not in source code) or, (2) use a single copy of the documentation in accordance with the terms set forth in these T&Cs.

 

B.) The intellectual property rights in the Goods are owned by RAS, its licensors or its suppliers, are protected by copyright laws, and some elements are protected by laws governing trademarks, trade dress and trade secrets, and may be protected by patent laws. In addition to the restrictions and obligations imposed by such laws, You agree to comply with the following:

 

C.) You may:

 

1.) Where applicable, install the intellectual property on only one Aircraft or central processing unit; and

 

2.) transfer or assign (not rent or lease) all of Your rights in the intellectual property on a permanent basis if the Aircraft containing the intellectual property is sold to a third party and the third party agrees to the terms of these T&Cs.

 

D.) You may not:

 

1.) Use the intellectual property on more than one Aircraft or central processing unit, or use it on a device functioning as a file server in a network or a multi-user system; or

 

2.) post or distribute the intellectual property via email, an electronic bulletin board, web site, removable storage media or via any other form of electronic distribution system; or

 

3.) make any copies of the intellectual property in any form or for any purpose; or

 

4.) remove any markings, copyright notices, labeling or proprietary notices on the intellectual property; or 5.) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the intellectual property or the accompanying documentation; or

 

6.) rent, lease or sublicense any rights in the intellectual property or accompanying documentation in any form to any person or business.

 

E.) All rights, title, interest, and all copyrights in and to the Goods shall, at all times, remain with RAS, its licensors or suppliers. Unauthorized copying of the Goods or failure to comply with the above restrictions will make available to RAS all legal and equitable remedies.

 

F.) The parties hereto (You and RAS) agree that RAS would be irreparably harmed, and for which equitable relief would be difficult to determine, if You were to violate RAS’s intellectual property rights (herein “IPR”) by improperly copying, selling, renting, installing, distributing or employing RAS’s intellectual property without proper authorization and payment to RAS. Therefore, You agree that any willful or intentional violations of RAS’s IPR hereunder will result in liquidated damages, and not as a penalty, in an amount equal to ten times (10X) the price paid for any Goods purchased hereunder for each and every violation of RAS’s IPR. The foregoing shall not prevent or limit EA’s right to obtain immediate injunctive relief and specific performance in any court of competent jurisdiction for a violation of RAS’s IPR.

 

III. LIMITED WARRANTY - GOODS

 

A.) RAS WARRANTS THE GOODS WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF TWENTY FOUR (60) DAYS FROM THE DATE OF PURCHASE, OR UNTIL AUGUST 31, 2026, WHICHEVER OCCURS FIRST. THE FOREGOING WARRANTY IS VOID IF FAILURE OF THE TECHNOLOGY IS FROM MISAPPLICATION, MISUSE, NEGLECT, ALTERATION, IMPROPER INSTALLATION, UNAUTHORIZED REPAIR OR MODIFICATION, ACCIDENT OR CAUSES EXTERNAL TO THE TECHNOLOGY, SUCH AS, BUT NOT LIMITED TO, EXCESSIVE HEAT, POWER SPIKES OR POWER FAILURE.

 

EXCEPT FOR THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GOODS AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND FROM RAS, OR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH HEREIN, THESE PARTIES HEREBY DISCLAIM ANY OTHER WARRANTY EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

B.) Continued use or possession of the Goods after expiration of the above warranty period shall be conclusive evidence that the warranty is fulfilled to Your full satisfaction. RAS's warranty as set forth above shall not be enlarged, diminished or affected by, and no liability shall arise out of, RAS's rendering of technical advice or service in connection with the Goods. You may not assign the foregoing warranty.

 

IV LIMITED WARRANTY - SERVICES

 

RAS warrants for ninety (60) calendar days from completion of the work that the labor provided by RAS in conjunction with this Order will be free of defects in workmanship. RAS and its subcontractors will assign to You any assignable warranties or other rights from the manufacturer or supplier of any parts or materials furnished by or through RAS or its subcontractors in conjunction with this Order. RAS makes no other warranties or representations as to the Services, including parts, materials or labor, except as otherwise set forth in this Article. Under no circumstances shall RAS or it subcontractor(s) be held liable for transportation costs or work performed or corrected by any party other than RAS or its designated subcontractors. No agreement or understanding varying or extending this warranty will be binding upon RAS or its subcontractor(s) unless in writing and signed by a duly authorized officer of RAS and its subcontractor. RAS’s obligation under the terms of this warranty is limited, at its sole discretion, to rectifying warrantied workmanship and repairing or replacing warrantied parts. Any work performed by RAS or its subcontractor(s) in conjunction with a warranty obligation hereunder shall not be construed to extend or modify the original warranty obligation or term as set forth herein.

 

RAS will file for warranty or product support program reimbursement on Your behalf as may be permitted by the third party responsible for the original warranty or product support program. RAS does not accept responsibility for nor can it give advance approval of any claim filed on Your behalf. Notwithstanding the foregoing, You expressly agree that the filing of any warranty claim by RAS on Your behalf shall in no way be construed as to abate, diminish or otherwise relieve You from any obligation accrued in conjunction with RAS’s performance on an Order, including, but not limited to, full payment for Services.

 

THE FOREGOING WARRANTY (respectively, Articles III and IV) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, IMPLIED CONDITION AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING, USAGE OR TRADE PRACTICE AND ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF RAS TO ANYONE OF ANY NATURE WHATSOEVER BY REASON OF THE REPAIR OR USE OF THE AIRCRAFT OR RELATED PRODUCTS AND SERVICES DELIVERED OR RENDERED HEREUNDER. THESE WARRANTIES ARE ALSO IN LIEU OF ALL OTHER OBLIGATIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING, USAGE OR TRADE PRACTICE) RELATED TO ANY MODIFICATIONS, REPAIRS, REPLACEMENT PARTS, SERVICE CHANGE KITS OR DOCUMENTATION THAT RAS MAY HEREAFTER FURNISH TO YOU FOR USE ON OR WITH THE AIRCRAFT, EITHER PURSUANT TO THIS LIMITED WARRANTY OR OTHERWISE.

 

V. LIMITATION OF LIABILITY

 

IN NO EVENT SHALL RAS OR ITS SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR SPECIAL DAMAGES OR LOSSES, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), ARISING OUT OF THE SERVICE(S) OR YOUR USE OF THE GOODS, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, GOODWILL OR SAVINGS, OR LOSS OF DATA, DATA FILES, OR OTHER PROGRAMS. During the warranty period, Your sole and exclusive remedy under these T&Cs shall, at RAS’s option, be refund, repair or replacement of defective Goods. RAS does NOT warrant that the functions contained in the Goods will meet Your requirements or that the operation of the Goods will be uninterrupted or error free.

 

VI. RETURNS

 

ALL SALES ARE FINAL, NO RETURNS ACCEPTED.

 

VII. TERMS SPECIFIC TO SERVICE

 

A.) RAS, at Your request, will provide a good faith estimate of the Services to be performed on Your Aircraft. You expressly agree and understand that any/all estimates provided hereunder are non-binding and are an approximation/estimation of the Services to be performed in RAS’s professional judgment. You acknowledge the final completed price of the Services may exceed any estimate provided hereunder. You acknowledge that RAS may include a consumables mark-up equal to three percent (3%) of the labor cost of the work performed on the Order.

 

B.) Orders for Services are accepted subject to personnel and parts availability. Your execution of an Order shall constitute the sole authorization for RAS to commence or cause to commence the Services requested on the Order.

 

C.) RAS reserves the right to subcontract any portion or all of the Services to be performed hereunder.

 

D.) RAS represents, to the best of its knowledge, its maintenance personnel and maintenance subcontractors are appropriately licensed under applicable Local, State and Federal regulations, including the Federal Aviation Administration (FAA) regulations, if so required for the Services undertaken. All Services performed hereunder shall be undertaken and performed in a professional and workmanlike manner consistent with and pursuant to manufacturers instructions. RAS further represents that all components, parts and equipment procured for resale to You shall be obtained from reputable suppliers and be approved for installation on Aircraft.

 

E.) RAS shall be entitled to rely on information provided by You as being correct, current and applicable to the equipment to which the same has reference.

 

F.) Subject to acceptability as solely determined by RAS; in the event You furnish RAS or our subcontractor with any aircraft part or component for installation on Your Aircraft, You expressly agree that neither RAS nor our subcontractor shall be liable for any warranty (express or implied) which are issued or otherwise assigned to You in conjunction with any/all such independently provided parts, excepting RAS’s warranty for workmanship as set forth herein. RAS will not accept any such parts unless and until the traceability and authenticity of each part is verified and substantiated documentation is deemed acceptable to RAS and/or our subcontractor(s) and such parts are in full compliance with prevailing and applicable FAA regulations. Any such customer furnished parts that are deemed acceptable for use by RAS or our subcontractor will be subject to a supplemental charge per Order of the greater of twenty five dollars (US$25.00) or fifteen percent (15%) of the manufacturers suggested retail price for said part. The supplemental charge is consideration for handling, quality control inspection and, verification of certification and documentation.

 

G.) UNLESS OTHERWISE AGREED IN WRITING; ALL PARTS, COMPONENTS AND EQUIPMENT REMOVED FROM AN AIRCRAFT DURING SERVICES SHALL BECOME THE SOLE AND EXCLUSIVE PROPERTY OF RAS.

 

VIII. UPDATES AND SUPPORT You acknowledge that RAS is not obligated under these T&Cs to provide any updates or support for the Goods.

 

IX. GENERAL

 

A.) You may terminate these T&Cs at any time by returning serviceable/salable Goods to RAS. RAS may terminate these T&Cs if You breach or fail to comply with any of these T&Cs. Upon any such termination, You agree to discontinue use of the Goods and to return all tangible forms of the Goods to RAS. In the event of such termination, the provisions of Article II, III, IV, V and IX shall survive termination of these Terms and Conditions.

 

B.) Force Majeure. RAS shall not be liable by reason of any delay in the performance of its obligations due to strikes, riots, fires, explosions, acts of God, war, governmental action or any other cause, which is beyond RAS’s reasonable control. The performance of RAS shall be excused for such reasonable time as may be required to resume performance following cessation due to such cause.

 

C.) These T&Cs shall be governed by the laws of the State of Illinois without reference to conflict of laws principles which would compel the application of the laws of any other state, and excluding the United National Convention on Contracts for the International Sale of Goods. The State and Federal courts residing in Albuquerque, New Mexico shall have jurisdiction and venue over all controversies arising out of, or relating to, any Goods, Services or Orders hereunder.

 

D.) The Goods are subject to the export control laws and regulations of the USA and other countries. You agree that You will not export or re-export the Goods in any form without the appropriate government licenses or in violation of such laws. Your failure to comply with this provision is a material breach of these T&Cs. E.) You may not assign or transfer these T&Cs or Order(s) or any of Your rights or obligations hereunder without the prior written consent of RAS and any such attempted assignment shall be deemed null and void.

 

F.) If any provision of these T&Cs are held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from these T&Cs and the remaining provisions will remain in full force and effect.

 

G.) These T&Cs contain the entire agreement between You and RAS with regard to the Goods and Services and supersedes any and all other representations, agreements, communications, advertisements, or understandings with respect to the Goods or Services. These T&Cs may not be modified, changed, discharged or amended except in writing by RAS.

 

H.) Any individual signing these T&Cs on behalf of a corporation, limited liability company or a partnership represents and warrants that he or she has full authority to do so.