BG AEROSPACE, INC.
STANDARD TERMS AND CONDITIONS OF SALE AND SERVICE
These terms and conditions (“terms”) apply to all goods and services provided by BG Aerospace, Inc., a new jersey company (“BG Aerospace”), including without limitation engine parts, and maintenance and repair services, but excluding engine rentals. Any additional, different, or conflicting terms or conditions on customer’s purchase order, specifications, or other documents issued by customer shall be wholly inapplicable and shall not be binding in any way on BG Aerospace. Acceptance of customer’s offer is expressly made conditional on customer’s assent to the terms. No waiver or amendment of any of the provisions contained in these terms shall be binding on BG Aerospace unless made in a writing expressly stating that it is such a waiver or amendment and signed by an officer of BG Aerospace.
2. ORDER PROCESS FOR ENGINE SERVICE
- Customer’s delivery of parts to Be Purchased (“Parts”) at one of BG Aerospace’s fixed business locations, currently, Owings Mills Maryland, and Muskegon Michigan (“BG Aerospace Location”) constitutes agreement by Customer for BG Aerospace to perform work on the Engine and to pay BG Aerospace for parts, labor, and other charges as provided in these Terms.
- Alternatively, Customer’s oral or written request for a BG Aerospace technician or technicians to provide services at a location other than a BG Aerospace Location constitutes agreement by Customer for BG Aerospace to commence work on the Engine and to pay BG Aerospace’s charges for parts, labor, and other expenses as provided in these Terms.
- If requested, BG Aerospace may provide Customer with an estimated range of possible charges before or after evaluating the Engine. An estimate is nonbinding on BG Aerospace. If advisable to meet turn times or delivery dates expressed by Customer, then BG Aerospace may order or install parts and perform labor and services without Customer approval of an estimate.
- For services performed at a BG Aerospace Location, Customer is solely responsible for safely transporting the Engine to and from the BG Aerospace Location, unless Customer requests and BG Aerospace agrees to remove the Engine and/or arrange transportation as provided in Section 2.e
- Notwithstanding Section 2.d., if BG Aerospace agrees to arrange for transportation of the Engine to or from the BG Aerospace Location, then BG Aerospace will either select third parties for transportation (such as common carriers or air charter services), or provide transportation If BG Aerospace uses a third party, then BG Aerospace assigns to Customer its warranty and similar rights against such third parties with respect to such transportation, but BG Aerospace will have no other liability with respect to third party transportation. Unless requested by Customer in writing, BG Aerospace will not arrange for shipping insurance. If requested by Customer, Customer must reimburse BG Aerospace for shipping insurance. See also Section 3.d. regarding taxes.
- For services provided at a location other than a BG Aerospace Location, Customer is responsible for providing BG Aerospace full and free access to the aircraft and Engine and a secure and suitable Customer is also responsible for roundtrip travel expenses of BG Aerospace personnel and equipment from a BG Aerospace Location to the jobsite.
- If Customer rejects an estimate, or otherwise gives notice to BG Aerospace to stop work on an Engine, then BG Aerospace will cease work. Customer is responsible for payment of parts ordered or installed and labor and services performed prior to the date of notice. For services performed at a BG Aerospace Location, Customer remains responsible for inbound and outbound transportation of the Engine as provided in Section 2.d. For services performed away from a BG Aerospace Location, Customer is responsible for travel expenses as provided in Section 2.f.
- Customer shall, at Customer’s sole expense, maintain property/casualty insurance on the Engine while at BG Aerospace for full replacement value. In addition, if the Engine arrives at or departs from BG Aerospace’s facility on-wing, then Customer shall, at Customer’s sole expense, maintain insurance coverage on such aircraft consisting of a minimum of hull insurance for full replacement value, a general liability policy with minimum limits of $2 million per occurrence. All such policies will be endorsed to waive all subrogation against BG Aerospace. Customer authorizes BG Aerospace to operate such aircraft for testing, taxi, and other ground-based purposes, and acknowledges that BG Aerospace is not liable for the loss of such aircraft or other damage to property, personal injury or death of any person, while such aircraft is in operation, except to the extent provided by Section 6 (Limited Warranty) and limited by Section 7 (Liability).
- Customer shall provide all relevant information regarding compliance with Customer’s chosen inspection and/or maintenance program, including without limitation which specific service bulletins are to be complied with, and including without limitation Parts 91, 121, 125, 129, and 135 of Federal Aviation Regulations, or any foreign equivalent (Customer’s “Program”). By accepting an estimate, Customer affirms that the inspections and/or service described in the estimate comply with Customer’s Program. Customer shall review all maintenance records (including logbook entries, references to maintenance manuals and revisions (or other technical data), service bulletin records, airworthiness directive records, traceability forms, life limited parts records, component maintenance records, and FAA 8130-3 forms) upon each receipt of goods and services provided by BG Aerospace to verify compliance with Customer’s Program. Customer shall notify BG Aerospace within five (5) business days after receipt if any requirements were not met. BG Aerospace has no responsibility or liability for recommending, or for failing to recommend, any particular inspection, service, service bulletin, or airworthiness directive, or for failure to discover remedy conditions that may have been discovered had additional inspections or services been performed. BG Aerospace is only responsible for those inspections and services which were performed as specified on the log entry.
- From time to time, BG Aerospace will use an approved Alternative Method of Compliance (“AMOC”) in an engine repair. If an AMOC is used, it will be noted in the airworthiness directive compliance record in the logbook. If an AMOC is noted in the logbook, it is Customer’s responsibility to notify Customer’s principal inspector or local FAA office.
- Prices for parts and labor shall be at the rates invoiced by BG Aerospace. Rates for parts, labor, and services shown on an estimate are valid for 30 days; provided, however, pricing and use of new, overhauled, serviceable, and/or repaired parts are subject to availability. BG Aerospace may in its discretion use new, overhauled, serviceable, or repaired parts. “New” parts may include OEM (original equipment manufacturer) parts, PMA (parts manufacturer approval) parts, or parts fabricated in accordance with FAA-approved or acceptable data.
- Customer shall pay, in addition to the prices of parts and labor, a 2% shipping charge on any parts (or the amount specified on the estimate or invoice, if different), If BG Aerospace finds it advisable to replace Customer’s shipping crate, then Customer shall pay BG Aerospace’s standard charge for a Customer shall also pay the cost of any shipping (and, if requested, shipping insurance) arranged by BG Aerospace.
- All parts are sold as an exchange of parts (unless specified as an outright sale on the estimate or invoice), and all exchanged core parts are the property of BG Aerospace. Core charges and/or scrap fees may be imposed, or increased retroactively, after third party evaluation, depending on the condition of the exchanged core BG Aerospace reserves the right to reject, but has no obligation to inspect, customer-supplied parts. Customer supplied parts are subject to a handling fee.
- Customer shall pay and indemnify BG Aerospace for any applicable taxes (other than income taxes), VAT, and/or customs duties applicable to the sale or shipment of products or performance of services, or in lieu thereof, Customer shall supply BG Aerospace with an appropriate tax exemption (Ohio and Florida sales and use taxes do not generally apply to BG Aerospace’s parts or labor.) If a sale or shipment is subject to VAT or other foreign taxes or customs duties, Customer is responsible for dealing with the relevant tax or customs authorities.
- “Customer-supplied parts” include parts supplied or directed by Customer as well as parts BG Aerospace does not warrant customer-supplied parts and reserves the right to reject customer-supplied parts. Customer-supplied parts are subject to a handling fee. CUSTOMER IS SOLELY RESPONSIBLE FOR LOSS OF THE AIRCRAFT, ENGINE, OR OTHER DAMAGE TO PROPERTY, PERSONAL INJURY, OR DEATH OF ANY PERSON IN ANY WAY RESULTING FROM CUSTOMER-SUPPLIED PARTS.
4. TERMS OF PAYMENT
- BG Aerospace may require a deposit of 50% of Estimate Price prior to Inspection, Full is required prior to delivery of the All past due amounts accrue interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less. All payments shall be made to BG Aerospace at the address specified on the front of the invoice. Customer is not entitled to withhold any amounts due to BG Aerospace for taxes or any other reason. For example, Customer may not delay or withhold payment because Customer’s payment from the owner, insurance carrier, or any other third party has been delayed or withheld. If Customer desires to pay by credit card or other method which imposes merchant processing or other fees on BG Aerospace, then Customer will additionally pay such fees to the extent permitted by applicable law. Notwithstanding any designation by Customer, BG Aerospace may apply payments received from or on behalf of Customer toward any current or overdue invoice of Customer in any manner chosen by BG Aerospace.
- If a project involves multiple Engines or multiple processes, BG Aerospace may invoice separately for each Engine or process. Each invoice shall be considered a separate and independent transaction.
- All shipments to or by BG Aerospace are FOB the applicable BG Aerospace Risk of loss or damage to the Engine shall pass to Customer upon delivery to the common carrier at the BG Aerospace Location.
- Customer must provide logbooks or other appropriate maintenance documentation with the Engine. BG Aerospace is not responsible for logbooks or other documentation lost or damaged in transportation or shipment, or while stored at BG Aerospace (except for negligence). Customer is solely responsible for backing up or copying logbooks before delivery to BG Aerospace.
- Customer acknowledges and agrees that turn times and delivery dates are estimates only. BG Aerospace will use commercially reasonable efforts to deliver in accordance with requested delivery dates, but BG Aerospace will not be liable for failure to deliver within the estimated time.
- Any product or service sold or provided by BG Aerospace shall be deemed accepted by Customer upon use of the Engine by Customer or 30 days after delivery, whichever occurs first.
6. LIMITED WARRANTY
- BG Aerospace warrants that its services will be free from defects in workmanship under normal operating conditions for a period of one (1) year after the date of completion, regardless of the date of first use by BG Aerospace assigns the manufacturer or vendor warranty for parts to Customer and will provide reasonable assistance in processing warranty claims, but does not otherwise warrant parts.
- BG Aerospace shall, at its sole option, either repair or replace any item which did not comply with BG Aerospace’s express warranty, but only if, during the applicable claim period:
- Customer notifies BG Aerospace promptly in writing upon discovery of any alleged defect in the workmanship, including a detailed description of such alleged defect;
- Customer returns the affected Engine to BG Aerospace (Customer must pay for inbound and outbound shipping charges); or, at BG Aerospace’s sole option, Customer promptly gives BG Aerospace the opportunity to inspect the Engine at Customer’s location (Customer must pay for inbound and outbound travel by BG Aerospace’s warranty representative(s)).
- BG Aerospace’s evaluation of the Engine discloses to BG Aerospace’s satisfaction that workmanship provided by BG Aerospace did not conform to warranty.
- All warranty obligations of BG Aerospace are voided in the event of accident, incident, abuse, exposure to severe weather conditions, misuse, neglect, alteration, operation outside the manufacturer’s recommendations, or any repair, service, or tampering by Customer or any third party after the time of delivery by BG Aerospace.
- A Warranty claim shall not extend the original warranty
- With respect to all borescope inspections: Given the inherent limitations of borescope instruments and inspections (including viewing angles, 2-D imaging, lighting conditions, and unclean parts), a complete and thorough inspection is not possible. Damage may exist that is not observable or that is not observed or noticed by the inspector during the inspection. Therefore, BG Aerospace may provide borescope images or an inspection report, but disclaims any and all warranties relating to borescope inspections.
- With respect to inspections occurring prior to the sale of an engine or aircraft: BG Aerospace does not provide “pre- purchase,” “pre-buy,” or similar inspections for the purpose of evaluating an engine or aircraft for For any inspection (including logbook reviews) performed by BG Aerospace prior to the sale of an engine or aircraft, BG Aerospace’s sole responsibility is to report the limited observations of the inspector(s). BG Aerospace’s inspection and reported observations do not constitute or provide: (i) any sort of general approval of the condition or airworthiness of the Engine or aircraft, including the items inspected; or (ii) any warranty or guarantee concerning the Engine or aircraft, including but not limited to the items inspected, or (iii) any recommendation concerning the purchase, use, operation or investment in the Engine or aircraft. No communications from BG Aerospace, written or verbal, may be construed as providing any recommendation or advice regarding the proposed purchase and sale of any Engine or aircraft, or any opinion of the value of any Engine or aircraft. The parties involved in any proposed transaction involving any Engine or aircraft must rely solely on their own judgment in any decision regarding such proposed transaction.
- THE FOREGOING WARRANTY CONSTITUTES BG AEROSPACE’S EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF CUSTOMER, FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF PRODUCTS OR SERVICES COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. BG AEROSPACE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS EXPRESSLY PROVIDED IN THIS SECTION 6.g.
7. LIMITATION OF LIABILITY
- NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST BG AEROSPACE MORE THAN ONE (1) YEAR AFTER THE DATE OF COMPLETION OF THE AFFECTED GOODS OR SERVICES, REGARDLESS OF THE DATE OF FIRST USE BY CUSTOMER.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BG AEROSPACE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, AIRCRAFT OR ENGINE DOWNTIME, OR TRANSPORTATION, EVEN IF BG AEROSPACE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THIS EXCLUSION IS INDEPENDENT OF, AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS.
- UNDER NO CIRCUMSTANCES SHALL BG AEROSPACE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO ANY TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT THE CUSTOMER ACTUALLY PAID TO BG AEROSPACE FOR THE AFFECTED GOODS AND SERVICES.
8. LIEN; STORAGE CHARGES; ENFORCEMENT OF LIEN
- Customer hereby grants to BG Aerospace, Toledo Jet Center, LLC, an Ohio limited liability company, and Aircraft Propulsion Leasing, LLC, an Ohio limited liability company (collectively, the “Affiliated Companies”), a security interest and lien on any Engine, or other items (“Customer Property”) delivered to BG Aerospace, to secure any obligations of Customer to any of the TS Companies under these Terms, under any invoice of the TS Companies, or under any engine rental or other agreement by and between Customer and any of the Affiliated Companies, including reasonable attorneys’ fees, incurred by any of the Affiliated Companies in any action brought by any of the Affiliated Companies to collect payments owing or otherwise enforce its rights (collectively, “Customer Obligations”).
- Any of the Affiliated Companies has the right, but not the obligation, to file evidence of its lien with the Federal Aviation Administration, with the relevant state authorities as a UCC-1 financing statement or otherwise, or under the Cape Town Convention on International Interests in Mobile Equipment. Upon request of any of the Affiliated Companies, Customer will execute any documents to perfect its security interest in any Customer Property. BG Aerospace may refuse to release any Customer Property until all Customer Obligations to all of the Affiliated Companies are paid in full.
- If Customer Property remains on BG Aerospace’s premises more than 90 days after BG Aerospace has given Customer an estimate which Customer has not accepted, or more than 90 days after BG Aerospace has invoiced Customer, then BG Aerospace has the right to charge a storage fee, including without limitation on Customer Property that is retained by BG Aerospace in enforcement of its lien The storage fee for a complete engine is USD $200 per month. The storage fee for partial engines and smaller parts will be comparable based on the bulk of such items as stored by BG Aerospace.
- If any Customer Obligations are not paid in full within 90 days after the due date, then BG Aerospace has the right, but not the obligation, to either sell any or all Customer Property in any commercially reasonable manner (which may include a sale to BG Aerospace at its reasonable value, “as is” and “where is”), and to apply the amount realized from such sale against the costs of sale as well as any amounts due from Customer to BG Aerospace under such invoice or any other Customer Obligation. Customer remains liable for any deficiency.
- BG Aerospace’s rights under this Section 7 are in addition to, not in lieu of, any rights of BG Aerospace under applicable law, including without limitation Section 1333.41 of the Ohio Revised Code or Chapter 329 of Florida Statutes and Article 9 of the Uniform Commercial Code.
Any one of the following acts by Customer shall constitute a material breach of Customer’s obligations hereunder:
- Customer fails to make payment for any products or services in full when due;
- Customer fails to accept conforming products or services supplied hereunder; or
- Filing of a voluntary or involuntary petition in bankruptcy against Customer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Customer, or an assignment for the benefit of creditors of In the event of Customer’s material breach, BG Aerospace may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Customer, terminate its obligations or any part thereof, without any liability to BG Aerospace Customer shall pay all costs, including reasonable attorneys’ fees, incurred by BG Aerospace in any action brought by BG Aerospace to collect payments owing or otherwise enforce its rights.
10. FORCE MAJEURE
BG Aerospace shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, insurrection, sabotage, terrorism, labor disputes, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time.
- BG Aerospace estimates and charges for goods and services are confidential, proprietary information of BG Aerospace and may not be used or disclosed except for the purpose of purchasing goods and services from BG Aerospace.
- Customer represents to BG Aerospace that it is either the owner of all Customer Property delivered to BG Aerospace, or the agent of the owner, in either case with full power and authority to enter into an agreement according to these
- Electronic signatures are as valid as originals. An email, text message, or other electronic transmission from a representative of Customer accepting an estimate or otherwise authorizing BG Aerospace to perform services shall constitute Customer’s signature.
- Customer agrees that it will comply with all applicable federal laws, regulations, and administrative rules of the United
- Unless specifically agreed in writing by an officer of BG Aerospace, BG Aerospace does not represent or warrant compliance with any law, regulation, or administrative rule of any foreign governmental For example, United States or foreign government procurement requirements and regulations (federal, state or local, including but not limited to, certified cost or pricing data, Cost Accounting Standards, Defective Pricing, and Audit requirements) shall not be binding upon BG Aerospace unless specifically agreed to by an officer of BG Aerospace in writing.
- From the date Customer first contacts BG Aerospace and continuing until two (2) years after completion of BG Aerospace’s services, Customer may not, directly or indirectly through another entity, solicit for employment or employ any individual who is or was a BG Aerospace employee during the one (1) year period prior to the solicitation for employment or beginning of employment.
- Any waiver by BG Aerospace of any default by Customer or of any remedy shall not be deemed to be a continuing waiver of such default or remedy, or a waiver of any other default or remedy.
- If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, it shall be deemed amended the minimum amount necessary to permit its enforcement.
- These Terms, which include the documents incorporated by reference on the face hereof (but expressly does not include any of the terms and conditions of Customer’s purchase order, specifications or any similar document issued by Customer) shall constitute the entire agreement between Customer and BG Aerospace with regard to the products or services sold hereunder, and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral, relating to such products or
- The validity, performance and construction of these Terms, and any disputes arising from or relating thereto any transaction governed by these Terms, shall be governed by Ohio law, without reference to conflict of law All disputes shall be subject to the exclusive jurisdiction of the Court of Common Pleas of Lucas County, Ohio (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of Ohio, Western Division), and Customer consents to the personal and exclusive jurisdiction and venue of these courts, and waives any objection it may now or hereafter have to venue or convenience of forum. Process in any proceeding arising out of or relating to any transaction governed by these Terms may be served anywhere in the world. The United Nations Convention on the Sale of Goods, Uniform Commercial Code, and Uniform Computer Information Transaction Act shall not apply to these Terms.
© 2023, BG Aerospace, Inc., all rights reserved. Version Date: January 27, 2023