Terms and Conditions of Sale

  • Offer and Acceptance
    • These Terms and Conditions of Sale (the “Terms and Conditions”), together with the terms of any other document in which these Terms and Conditions are attached or are incorporated (collectively, the “Agreement”) apply to and include (subject to the provisions herein with respect to inclusion) (i) any quotation, proposal, or offer to sell (“Offer”) made by Global Aviation Services, LLC, its parent, PrimeFlight Aviation Services, Inc., or one of its affiliates or subsidiaries (collectively, “Seller”) for the sale of Seller’s equipment, vehicles, products, materials, and goods, if any, related to such equipment, vehicles, products, materials, and goods (collectively, the “Goods”) and (ii) any invoice, purchase order or related attachments, schedules, exhibits, designs, and drawings (collectively, a “Purchase Order”), issued by the buyer-party purchasing the Goods or that party’s subsidiaries and affiliates (collectively, “Buyer”). Buyer accepts, and will be deemed to be bound by, the terms of the Agreement upon the first to occur of the following: (A) Buyer’s written acknowledgment of the Agreement in writing; (B) Buyer placing a purchase order with Seller; (C) delivery of the Goods by Seller pursuant to any purchase order or similar type of request by Buyer; (D) acceptance of the Goods by Buyer; or (E) payment for the Goods by Buyer. All Offers are subject to Seller’s approval if made by a salesperson or sales agent.
    • Buyer’s acceptance is expressly limited to the terms of the Agreement, and the Agreement exclusively governs the sale of Goods by Seller. This Agreement supersedes and excludes any terms and conditions set forth in any purchase order placed by Buyer or any other document issued or deemed to be issued by Buyer to Seller (including, without limitation, Buyer’s general terms and conditions of purchase), each of which is expressly rejected. Any reference in the Agreement to any request for quotation, request for proposal, or any other similar bid document made by Buyer is solely for the purpose of incorporating the description and specifications of the Goods contained in such document, but only to the extent that such description and specifications do not conflict with the description and specifications contained in the Agreement. Any additional, different, or conflicting terms proposed by Buyer, whether in Buyer’s purchase order or otherwise, or any attempt by Buyer to vary the terms of the Agreement in any way, are expressly rejected by Seller, are not part of the Agreement and do not apply to the sale of Goods and are not binding on Seller without the express prior written acceptance of such terms by Seller’s authorized representative.
    • None of the terms, provisions, or conditions of the Agreement may be modified, altered, or added to except by written instrument signed by a duly authorized representative of Seller. Any agreed-upon change will be subject to an equitable adjustment in the purchase price and/or time for performance.
    • Buyer shall pay to Seller a surcharge: (i) to recover amounts required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs; and (ii) in the event of any extraordinary or emergency increases in the cost of (x) power and/or raw materials used in the production of Goods and/or (y) fuel.  Seller shall provide supporting documentation for any such surcharges.
  • Payment. For credit card sales, payment will be immediate on the transaction.  Otherwise, Buyer will pay for Goods without setoff, recoupment, or deduction of any kind, in U.S. funds. Unless otherwise agreed to in writing by Seller, payment for the Goods will be due and payable thirty (30) days following the earlier of (i) Buyer’s receipt of Seller’s invoice or (ii) Buyer’s receipt of the Goods. Buyer will not be entitled to any discount for early payment. When Goods are shipped prepaid with freight to be billed, freight charges are net and subject to payment on presentation of invoice. All amounts due to Seller but not paid by Buyer on the due date will bear interest on the unpaid balance of amounts due at a rate that is equal to 1.5% per month, or the maximum allowable rate by law, whichever is less, until paid. Buyer agrees to indemnify and hold harmless Seller from any and all legal fees and costs that may be required to collect any overdue balances. Seller may offset, deduct or recoup any amounts owed by Seller or any of its affiliates or subsidiaries to Buyer against any amounts owed by Buyer to Seller or any of its affiliates or subsidiaries.  If deliveries of Goods are to be made in installments, the purchase price of each installment shall, at Seller’s option, be recoverable as a separate sale. The remedies contained in this Section 2 are cumulative and shall be in addition to any other remedies available to Seller under this Agreement or applicable law. All returns will incur a stocking fee equal to 25% of the sales price.
  • Delivery; Risk of Loss; Transportation Charges. Delivery dates are estimates only and are not guaranteed by Seller. Title to the Goods will pass to Buyer upon Seller’s receipt of full payment. Risk of loss to the Goods will pass to Buyer when the Goods are placed in the possession of Buyer’s carrier; provided, however, that Seller shall retain a purchase-money security interest in the Goods as security for Buyer’s performance until payment in full is received. Seller’s prices do not include any taxes or duties. Buyer shall pay or promptly reimburse Seller for all transportation, freight, handling, special handling, delivery, and insurance costs and for all foreign, federal, state, provincial, and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties and any other fiscal contribution of similar import related to the sale, use, shipment, transportation or delivery of the Goods. All Goods held by Seller beyond the date of completion will be subject to storage charges, for which Buyer shall be solely responsible.  All Goods will be deemed accepted by Buyer upon delivery.
  • Excusable Delays. Seller shall not be held liable, or deemed in default, for any failure or delay in fulfilling or performing any of its obligations under the Agreement (including failure to deliver Goods) if such failure or delay is caused by, or results from, acts beyond Seller’s reasonable control, including fire, flood, drought, acts of nature, war, hostilities, terrorist threats or acts, riot or other civil unrest, strikes, lockouts, slowdowns or other labor unrest, delay in transportation, shortage of power, unavailability of raw materials, embargo, government action, epidemic, pandemic, earthquake, explosion, a national or regional emergency, or by acts or omissions of Buyer, including Buyer’s failure to promptly comply with the terms of payment.
  • No Warranty; Exclusive Remedy. All warranties, whether express, statutory, or implied, are hereby disclaimed and excluded by Seller, including without limitation, any warranty of merchantability, fitness for a particular purpose or use, non-infringement of third-party rights, and all obligations or liabilities on the part of Seller for damages arising out of or in connection with the use, repair or performance of the Goods. Buyer’s exclusive remedy against Seller, and Seller’s sole obligation for any and all claims, whether for breach of contract, tort (including negligence) or otherwise, shall be limited to Seller’s replacing or repairing the applicable Goods or, at Seller’s option, refunding the purchase price paid by Buyer to Seller for the applicable Goods. In no event shall Seller have any liability for damages in an amount exceeding the purchase price of the applicable Goods.
  • Limitation of Liability. In no event shall Seller be liable, whether in contract or in tort (including negligence) or under any other legal theory, for any special, indirect, incidental, exemplary or consequential losses or damages, including, but not limited to, any direct or indirect lost profits or revenue regardless of whether such loss or damage was foreseeable or Buyer was advised of the possibility of such potential loss or damage.
  • Indemnification. To the maximum extent allowed by law, Buyer will defend, indemnify and hold harmless Seller and its present and future directors, managers, officers, stockholders, members, employees, attorneys, agents, representatives, parents, affiliates, subsidiaries and successors from and against any and all claims, costs, demands, losses, indirect and direct damages (including lost profits, incidental, consequential and punitive damages), liabilities, causes of action, judgments, settlements, awards, fines, penalties, assessments and expenses (including costs of defense, mediation, settlement and reasonable attorneys’ and other professionals’ fees and costs), however described or denominated, brought by any third party (including, Buyer’s employees, subcontractors, laborers, agents and assigns) arising out or, incidental to, or resulting from: (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of Goods; (b) injury to person or property caused by or resulting from the absence of any safety device which has been recommended by Seller or supplied to Buyer but not accepted or installed by Buyer; (c) injury to person or property caused by or resulting from the use of Goods to handle any materials of a hazardous nature or with hazardous characteristics, including, but not limited to, materials that are or may become flammable, explosive, toxic, radioactive or constitute a danger to health; (d) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production of Goods ordered by Buyer; (e) Buyer’s violation or alleged violation of any foreign, federal, state, county or local laws or regulations; (f) any negligent or willful act or omission of Buyer or its respective subcontractors, agents, employees or other representatives; or (g) Buyer’s breach of the Agreement.
  • Export. The Goods may be subject to export controls and sanctions laws and regulations of the U.S., the country of manufacture, or the country of shipment, and such export may require a valid export license from one or more governmental authorities. Seller’s acceptance of Buyer’s Purchase Order and delivery of the Goods is conditioned on Buyer’s compliance with applicable export controls and sanctions laws and regulations.  Seller will have no obligation to sell or deliver any Good until all required U.S. and/or other export licenses have been granted and there are no other impediments arising from any applicable export regulations.  No Goods sold to Buyer may be exported or re-exported unless such export or re-export complies fully with all applicable export controls and sanctions laws and regulations, and Buyer shall not violate any such laws or regulations, nor cause Seller to be in violation of such laws or regulations.
    • Neither Buyer nor any person acting on Buyer’s behalf has given, promised to give, offered to give, or will give, promise to give, or offer to give, any loan, gift, donation, payment, or other items of value directly or indirectly, whether in cash or in kind, to or for the benefit of any official or employee of a governmental authority or of any government-owned, government-controlled or government-affiliated entity and/or political party, to obtain or retain business or to secure any improper advantage. No payments or transfers of value will be made by Buyer which has the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business.  
    • Buyer represents and warrants (x) neither Buyer, its customer, nor any of their representatives are (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, or (ii) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States. and (y) it will comply with all U.S Export Control Laws and it will not resell, transfer, re-export or transship the goods in violation of U.S. Export Control Laws. 
  • General Terms.
    • Governing Law; Venue. This Agreement, and all related documents and matters arising out of or relating to the Agreement, are governed by and will be construed in accordance with, the laws of the State of Texas, without regard to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from applying to the Agreement or any Purchase Order.  Seller and Buyer each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with the Agreement will lie in the United States District Court for the Southern District of Texas, the courts in the State of Texas sitting in Fort Bend County, and any appellate court with jurisdiction over such courts.  Each party irrevocably and unconditionally submits to the exclusive personal jurisdiction of such courts and Buyer agrees not to bring any action, litigation, or proceeding in any other court.
    • Relationship of Parties. Seller and Buyer are independent contracting parties and nothing in the Agreement will make either party the agent or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. 
    • No Third-Party Beneficiary. Except as otherwise provided, Buyer acknowledges and agrees that the rights and interests of the parties under the Agreement are intended to solely benefit Seller and Buyer.
    • Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. 
    • Buyer and Seller acknowledge that the right to trial by jury is a constitutional one, but that it may be waived. Each of Buyer and Seller, after consulting (or having the opportunity to consult) with counsel of its choice, knowingly, voluntarily, and intentionally waives any right to trial by jury in any action or other legal proceeding arising out of or relating to this agreement or any other document pertaining to this agreement.