Eclipse Interview at COPA Migration 2010
Jeff Pino, CEO of Sikorsky Aircraft, on his Eclipse Jet
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These terms and conditions accompany Eclipse Aerospace’s Purchase Agreement or Purchase Order and form the complete agreement amongst the Parties. Acceptance is strictly limited to the terms and conditions in this Agreement. Seller shall accept this Agreement by a written or electronic acknowledgment of this Agreement or by commencement of work as contemplated by the Agreement.
Capitalized terms not defined in this Article or within the Articles of these Terms and Conditions shall take on the meaning as ascribed in the respective Purchase Agreement of Purchase Order. In the event of a conflict, the definition as ascribed in the Purchase Agreement or Purchase Order shall prevail.
"Intellectual Property Rights" shall mean all ideas, processes, trademarks, service marks, inventions, designs, works of authorship, copyrightable works, copyrights, patentable subject matter, patents and patent applications, formulas, technologies, know-how, data, discoveries, trade secrets, or other intellectual property, and any enhancements, improvements, and derivations thereof (whether now in existence or hereafter developed, invented, or otherwise derived).
"Material Breach" shall mean: (a) Seller’s failure to deliver the Products within the terms of this Agreement or of any written amendment; (b) Seller’s breach of this Agreement or failure to perform any of its obligations under this Agreement or failure to make material progress with respect to its obligations so as to endanger performance of this Agreement or failure to honor its Product warranties, and, in any of these circumstances, Seller’s failure to cure such breach or failure within five (5) business days after receipt of notice from EAI specifying the breach or failure.
Seller shall produce and deliver the Products, Services and perform all of its other obligations under the Agreement, at the prices set forth therein, and in accordance with these terms and conditions. Conditioned upon the timely delivery of conforming, non-defective Products and/or Services as required by the Agreement, EAI shall pay Seller the prices set forth within this Agreement in accordance with these terms and conditions. Unless expressly stated in these terms and conditions, Seller shall not be entitled to any other compensation and EAI shall not be obligated to pay any additional or different compensation, except the prices set forth as indicated on the referenced Purchase Order.
Seller shall ship all deliverable Products and Services under the Agreement in accordance with the delivery and shipment terms and conditions set forth in this Article. All shipments of Products shall be delivered by Seller FCA Seller’s facilities (for international shipments) or FOB (for domestic shipments) Seller’s facilities. As used herein, "domestic shipments" shall mean those shipments that occur entirely within the United States and "international shipments" shall mean all other shipments. For the avoidance of doubt, Seller shall ensure that all shipments and deliveries comply with all applicable import, export and customs rules and regulations and Seller shall be responsible for paying all applicable export customs duties, tariffs and other charges. A shipment containing hazardous and non-hazardous materials as defined by the Department of Transportation regulation HMR title 49 CFR, must have separate packing sheets for the respective hazardous and non-hazardous materials. The shipping documents shall describe the material according to the applicable classification and/or tariff and shall include any required Material Safety Data Sheets. In addition all hazardous chemicals shall be identified and marked in accordance with Department of Labor regulations 29 CFR 1910. Seller shall use the shipping address as set forth on the Purchase Order or Purchase Agreement for all shipments and deliveries of Products to EAI.
Seller shall use EAI’s designated transportation carrier and service level (e.g. overnight, ground, etc.). Shipping costs for Product sent via non-EAI designated freight carriers and/or service levels will be paid by the Seller.
Seller agrees that time is of the essence under this Agreement. In the event of any anticipated or actual delivery delays, Seller shall: (a) promptly notify EAI in writing of the reasons for the delay and the actions being taken to overcome or minimize the delay; and (b) provide EAI with a written recovery schedule. Without limiting any of EAI's rights and remedies with respect thereto, Seller shall take such actions as are reasonably necessary to meet EAI’s schedule. At EAI's request, Seller shall, at Seller’s expense, ship via air or other expedited routing to avoid or minimize the delay.
All data, reports and certifications associated with deliveries under this Agreement shall be marked with the Agreement number and directed to the attention of the EAI Authorized Procurement Agent.
Seller's invoices to EAI shall be submitted to the following billing address:
Eclipse Aerospace, Inc.
Attention: Accounts Payable
125 Fairchild Street, Suite 100
Charleston, SC 29492 USA
Unless otherwise mutually agreed in writing, all invoices are payable net 30 days from EAI’s receipt of an undisputed invoice.
EAI and Seller shall fully cooperate and provide all reasonable and necessary information and respond to the other Party in such a manner as to enable Seller and EAI to satisfy their obligations under this Agreement in a timely manner.
Seller is responsible for performing or having performed all inspections and tests necessary to substantiate, that the Products furnished under this Agreement conform to Agreement requirements, including any applicable technical requirements for specified manufactured parts. EAI shall have no responsibility for determining such requirements.
Seller warrants that all Products and Services furnished hereunder will conform to the requirements of this Agreement (including all descriptions, specifications and drawing made a part of this Agreement), will be merchantable and, free from defects in materials and workmanship. EAI’s approval of design or specification furnished by Seller shall not relieve Seller of its obligations under this warranty. In addition, EAI shall receive the benefits of any standard warranties that Seller makes available to its customers for similar products or services. With respect to Products, or components thereof, that are upgraded or retrofitted from time to time, Seller represents and warrants that such upgraded or retrofitted Products conform to the then-current and applicable specifications set forth in this Agreement. Seller further warrants that the Products will be sold to EAI with good and marketable title, free and clear of all liens, claims and encumbrances. Seller further warrants that all Services provided hereunder shall be performed by qualified personnel and shall conform to highest industry standards.
This warranty, together with Seller’s standard product and service warranties and guarantees, if any, shall survive inspection, test and acceptance of, and payment for, the Products or Services. This warranty shall run to EAI, its successors and assigns, and end-users of the Aircraft. The warranty for Products and Services shall commence upon transfer of title of Product or Service to EAI as determined by Article 2.1 and shall extend for a period of two (2) years from the date of delivery of the Aircraft to the EAI customer.
EAI may, at its option, either (i) return or reject defective or nonconforming Products for credit or refund, or (ii) require prompt repair or replacement of the defective or nonconforming Products or Services. For any defective or nonconforming Products (including new, overhauled, rebuilt or remanufactured Products) that are replaced during the warranty period, Seller agrees to pay freight costs (and all related costs, including customs duties, taxes and tariffs) for the shipment of replacement Products and/or tooling from Seller to EAI or an EAI authorized service facility and freight costs for the return of replaced Products and/or tooling from said facility to Seller.
The warranty for overhauled, rebuilt or remanufactured Products shall be twelve (12) months from the date the first flight hour was recorded on the Product by EAI or its customer.
Seller shall promptly notify EAI in writing if Seller discovers or suspects any materially adverse conditions or circumstances relating to Seller's operations, processes, Products or if Seller becomes aware of any situation that exists that may negatively affect the Products delivered or to be delivered, or Seller's ability to deliver Products under this Agreement.
If any dispute or claim arises out of or relates to this Agreement, or the breach thereof (a "Dispute"), the Parties agree to the following procedure as the only manner to resolve any Disputes, except for any actual or threatened misappropriation or infringement of EAI's Intellectual Property Rights.
The Parties shall initially attempt to resolve the Dispute by direct negotiation in an amicable manner for a period of at least thirty (30) calendar days, or such longer period as the Parties may mutually agree in writing; provided however, that nothing in this Article shall prevent EAI from taking immediate action to obtain substitutes for the Products.
If the Parties fail to resolve the Dispute by direct negotiation within the time period allotted, the Dispute will be submitted to binding arbitration before one arbitrator to be conducted in Albuquerque, New Mexico. The arbitration shall be conducted pursuant to the commercial arbitration rules (including procedures for large complex commercial disputes, regardless of the amount of the claim, but not necessarily the administration thereof) of the American Arbitration Association ("AAA") then in effect, unless the Parties mutually agree otherwise. Notice of the demand for dispute resolution pursuant to this Article shall be delivered in writing by the Party demanding arbitration to the other Party within sixty (60) calendar days of the default or event giving rise to the Dispute.
The Parties shall mutually agree on an arbitrator for the Dispute. If the Parties cannot agree on an arbitrator, each Party will select a qualified party and the two qualified parties shall mutually agree on a qualified third individual who shall serve as the arbitrator. To be qualified for selection, the individual must be an attorney or retired judge.
The Parties shall be entitled to present papers and witnesses, argue motions, take depositions and engage in all discovery permitted by the applicable rules of civil procedure, all as ordered by the arbitrator. The arbitration proceedings shall be conducted in accordance with the rules of civil procedure and evidence designated by the arbitrator. Arbitration will be completed and a decision rendered within ninety (90) calendar days following the commencement of arbitration according to a schedule determined by the arbitrator. For less complicated Disputes, the arbitrator has the authority to order a shorter arbitration process with limited or no discovery.
The arbitrator shall apply the rules of evidence to the same extent as they would be applied in a court of law, and shall otherwise follow applicable law in interpreting this Agreement and in determining the rights and obligations of the parties hereunder. The arbitrator shall not have the power to alter the terms of this Agreement. The arbitrator shall render his/her award in writing within ten (10) business days after the completion of the arbitration hearing, which award shall set forth the reasons for the arbitrator's decision on each issue in sufficient detail so as to permit the Parties to understand the factual and legal basis for the award. No provision of this Agreement shall limit the right of any Party to exercise self-help remedies provided by applicable law or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration. The exercise of, or opposition to, any such remedy does not waive the right of any Party to arbitration hereunder.
This requirement to arbitrate applies only to the Parties to this Agreement. Third parties not a Party to this Agreement shall not be required to participate as parties in the arbitration.
The decision of the arbitrator shall be final and binding on the Parties and may be confirmed by a judgment entered in any court having jurisdiction over the subject matter thereof. The arbitrator shall award reasonable attorney's fees and costs to the prevailing Party. The arbitrator shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve the Dispute, including ordering the non-prevailing Party to pay the arbitrator's costs in full. Absent such an order, the fees and costs of the arbitrator shall be borne equally by the Parties.
Pending final resolution of any Dispute, Seller shall proceed with performance of this Agreement according to EAI's instructions so long as EAI continues to pay amounts not in Dispute. Nothing in this Article shall prevent or limit EAI's right to obtain immediate injunctive relief in any court of competent jurisdiction to stop or prevent the misappropriation or infringement of EAI's Intellectual Property Rights.
Seller shall indemnify, defend and hold harmless EAI and its Indemnitees from all claims (including, but not limited to, claims based on intentional infringement of patents known to Seller at the time of such infringement, exceeding actual damages and/or including attorneys' fees and/or costs) related to the actual or alleged infringement of any United States or foreign intellectual property right (including, but not limited to, any right in a patent, copyright, industrial design or semiconductor mask work, or based on misappropriation or wrongful use of information or documents) and arising out of, or as a result of the manufacture, sale or use of Products delivered by Seller pursuant to this Agreement by either EAI or its Indemnitees. EAI will notify Seller of any such claim and Seller will, at its own expense, fully defend such claim on behalf of the Indemnitee.
Both Parties agree to indemnify and hold the other Party harmless from and against all third-party losses, damages, or expenses of any kind, including reasonable attorney’s fees that one Party may suffer or incur as a result of any acts or omissions of the other Party, or any of its directors, officers, employees or agents.
The indemnified party shall cooperate in good faith with, and provide reasonable assistance to, the indemnifying party in order to ensure the proper and adequate defense of any third party claim.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, OR BUSINESS INTERRUPTION LOSSES, IN CONNECTION WITH THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Without EAI's prior written approval, Seller shall not, and Seller shall cause its suppliers not to, release any publicity, advertisement, news release or denial or confirmation of same, regarding this Agreement or the Products or program to which it pertains.
This Agreement, and any documents referred to herein or executed contemporaneously herewith constitute the Parties' entire agreement with respect to the subject matter hereof and supersede all prior and contemporaneous negotiations, discussions, understandings, agreements, representations, warranties, statements, promises, whether oral or written, with respect to the subject matter hereof.
Any failures, delays or forbearances of either Party in insisting upon or enforcing any provisions of this Agreement, or in exercising any rights or remedies under this Agreement, shall not be construed as a waiver or relinquishment of any such provisions, rights or remedies; rather, the same shall remain in full force and effect. The rights and remedies set forth in this Agreement are cumulative and in addition to any other rights or remedies that the Parties may have at law or in equity. If any portion of any provision of this Agreement is or becomes void or unenforceable by law, the remainder of such provision and the remainder of this Agreement shall be valid, enforceable and shall continue in full force and effect.
The laws of the State of New Mexico, USA, shall govern this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to transactions under this Agreement.
Subject to Article 7, any and all Disputes between the Parties that may arise pursuant to this Agreement will be heard and determined before an appropriate arbitrator, federal, or state court located in Albuquerque, NM. The Parties hereto acknowledge that such court has the jurisdiction to interpret and enforce the provisions of this Agreement and/or an arbitrator’s judgment, and the Parties waive any and all objections that they may have as to personal jurisdiction or venue in any of the above courts.
In the event that either Party commences litigation or arbitration to recover amounts due under this Agreement or to otherwise enforce or defend its rights under this Agreement, the prevailing Party in such Dispute shall be entitled to a prompt reimbursement of the attorneys' fees and costs it incurred in connection with such litigation or arbitration.
If any provision of this Agreement is held by an arbitrator’s judgment or court of competent jurisdiction to be illegal or invalid, such provision shall be either reformatted in the manner most closely approximating the Parties' original intentions, or if not possible, shall be severed from the Agreement; provided, however, in each case, the remainder of this Agreement shall remain in full force and effect.
The section headings in these terms and conditions are inserted only as a matter of convenience, and in no way define, limit, extend, or interpret the scope of this Agreement or of any particular section. If there is any conflict or inconsistency between the provisions set forth in this Agreement, to the extent possible such provisions shall be interpreted in a manner so as to make them consistent. Unless expressly stated to the contrary, in this Agreement, the use of the term "including" shall mean "including, but not limited to."
With regard to any power, remedy or right provided herein or otherwise available to any Party hereunder (a) no waiver or extension of time shall be effective unless expressly contained in a writing signed by the waiving Party; and (b) no alteration, modification or impairment shall be implied by reason of any previous waiver, extension of time, delay or omission in exercise, or by any other indulgence.
Each Party hereto agrees to execute any and all further documents and writings and to perform such other actions which may be or become necessary or expedient to effectuate and carry out the purposes of this Agreement.
The Parties hereto are sophisticated and, as a result, they do not believe that the presumptions or similar laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied in this case and therefore waive their effects.
The following Articles of these terms and conditions shall survive termination, expiration or suspension of this Agreement for any reason: Articles 5, 7, 8, 9, 10 and 12.
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