1
EXHIBIT 10.2
SURPLUS PARTS SUPPLY AGREEMENT dated as of June 12, 1995
between INTERSTAR TRADING CORPORATION, doing business as AVTEAM, a
corporation organized under the laws of Florida ("Supplier"), and
UNITED TECHNOLOGIES CORPORATION, a corporation organized under the
laws of Delaware, acting through its Xxxxx & Xxxxxxx Group,
Surplus Materials Management Organization ("SMMO").
SMMO is a dealer in surplus gas turbine engine parts and wishes to
arrange for a sole source, to the extent provided in this Agreement, for its
future requirements of Parts (as defined below). Supplier is a dealer in gas
turbine aero engine parts and has access to a supply of Parts. Supplier and
SMMO wish to enter into an arrangement under which Supplier will be a supplier
of Parts to SMMO, on the terms and subject to the conditions set forth below.
Therefore, in consideration of the mutual promises and subject to the
conditions contained herein, the parties agree as follows:
ARTICLE I - DEFINITIONS
For purposes of this Agreement, the following capitalized terms will have
the meanings specified below:
1.1. "Engines" means Xxxxx & Whitney model JT8D-7, JT8D-9, JT8D-15,
JT8D-15A, JT8D-17, JT8D-17A, JT8D-17R, JT8D-209, JT8D-217A, JT8D-217C and
JT8D-219 gas turbine aero engines.
1.2. "FAA" means the U.S. Federal Aviation Administration.
1.3. "Manufacturer's Manual" means the most current version of the
manual published by the type certificate holder relating to the airworthiness
and overhaul and repair standards for a Part.
1.4. "New Surplus Parts" means newly manufactured, unused parts for
Engines, including newly manufactured, unused quick engine change and engine
buildup parts for use with Engines.
1.5. "Overhaul Specification" for a part means the overhaul
requirements specified for such part by the applicable Manufacturer's Manual and
other applicable FAA approved technical data, service bulletins and
airworthiness directives.
2
2
1.6. "Overhauled Part" means a part for an Engine (including quick
engine change and engine buildup parts for use with an Engine) that has been
overhauled in accordance with the criteria set forth in the documentation
described in Section 1.5 and that meets the applicable Overhaul Specification
for such part.
1.7. "Part" means New Surplus Parts, Overhauled Parts, Repairable
Parts, Repaired Parts and Serviceable Parts.
1.8. "Xxxxx & Xxxxxxx" means the Xxxxx & Whitney Group of United
Technologies Corporation.
1.9. "Repair Specification" for a part means the repair requirements
specified for such part by the applicable Manufacturer's Manual and other
applicable FAA approved technical data and such additional repair requirements
as SMMO may establish for the repair of such Part.
1.10. "Repairable Part" means a part that has been removed from an
Engine (including quick engine change and engine buildup parts for use with an
Engine), requires repair or overhaul prior to reinstallation and can be
economically repaired or overhauled to meet the applicable Repair Specification
or Overhaul Specification for such part.
1.11. "Repaired Part" means a part for an Engine (including quick
engine change and engine buildup parts for use with an Engine) that has been
repaired in accordance with the criteria set forth in the documentation
described in Section 1.9 and that meets the applicable Repair Specification for
such part.
1.12. "Requirements Purchase Order/Forecast" means a document issued by
SMMO describing its requirements of New Surplus Parts, Overhauled Parts,
Repairable Parts, Repaired Parts and Serviceable Parts for each month during the
period covered by such document. Each Requirements Purchase Order/Forecast will
specify the category (i.e. New Surplus, Overhauled, Repairable, Repaired and
Serviceable) by Engine model, serial number, required monthly quantity and
required delivery date of each Part listed in the document.
1.13. "Serviceable Part" means a part for an Engine (including quick
engine change and engine buildup parts for use with an Engine) that has been
inspected and determined to be usable in the overhaul of an Engine by an FAA
approved Federal Airworthiness Regulation Part 145 or 121 repair source.
1.14. "SMMO" has the meaning set forth in the preamble to this
Agreement.
1.15. "Trigger Date" means each date on which Supplier's cumulative
invoices issued to SMMO for Parts sold to
3
3
SMMO by Supplier equal or exceed $500,000, $1,000,000, $1,500,000 and
$2,000,000.
ARTICLE II - SALES OF PARTS TO SMMO
2.1. [Intentionally omitted]
2.2. Not later than June 30, 1995, SMMO will provide Supplier with a
Requirements Purchase Order/Forecast for September, October and November, 1995.
Thereafter, SMMO will provide Requirements Purchase Order/Forecasts on a
monthly basis so that Supplier will at all times during the term of this
Agreement have a Requirements Purchase Order/Forecast covering a period of three
calendar months commencing 60 days after the date of each Requirements Purchase
Order/Forecast (or the period to the end of the term of this Agreement if such
period to the end of the term of this Agreement if such period is less than five
months from the date of the Requirements Purchase Order/Forecast). Each
Requirements Purchase Order/Forecast will have the legal effect of a purchase
order with respect to the Parts indicated for the first calendar month covered
by such Requirements Purchase Order/Forecast, but will be considered a forecast
only of anticipated Parts needs for the second and third calendar month covered
by such Requirements Purchase Order/Forecast. SMMO may, by delivery of a
subsequent monthly Requirements Purchase Order/Forecast, change the type,
quantity or delivery schedule specified for any Parts in the forecast portion of
any earlier monthly Requirements Purchase Order/Forecasts.
2.3. [Intentionally omitted]
4
4
2.4. Supplier will deliver all Parts that it so agrees to deliver for
the first calendar month covered by each Requirements Purchase Order/Forecast,
together with the documentation for such Parts required by Section 4.3, to SMMO,
f.o.b. Supplier's Florida facility, on the delivery date specified for such Part
in such Requirements Purchase Order/Forecast. After proper and timely delivery
of conforming Parts and such documentation, Supplier will invoice SMMO for the
price of such Parts as provided in Article III.
2.5. Provided that Supplier continues to perform all its obligations
under this Agreement, SMMO agrees it will not, until the first day of the
calendar month before the calendar month in which SMMO requires delivery of
particular Parts, order from any other vendor that portion of SMMO's
requirements for such Parts that Supplier does not commit to deliver to SMMO.
2.6. Supplier acknowledges its understanding that SMMO does not
currently overhaul or repair Engines but that SMMO is in the process of entering
the business of overhauling and repairing Engines and, accordingly, that SMMO is
unlikely to have significant requirements for Parts until such time as SMMO has
been successful in its efforts to enter such business.
ARTICLE III - PRICING AND INVOICING
3.1. Attachment A sets forth the prices for Parts sold by Supplier to
SMMO that are specified by SMMO in its Requirements Purchase Order/Forecast. If
SMMO agrees to purchase from Supplier Parts other than those specified in SMMO's
Requirements Purchase Order/Forecast, the price for such Parts will be
determined by negotiation at the time of such agreement.
3.2. Notwithstanding the provisions of Section 3.1, Supplier agrees
that as long as this Agreement is in effect, the price that Supplier charges
SMMO for Parts sold pursuant to this Agreement will not be greater than the
price that Supplier charges any other customer to which Supplier sells
comparable quantities of comparable Parts under any other
5
5
long term parts supply agreement with similar terms and conditions. In the
event that Supplier charges any other customer comparable quantities of
comparable Parts under any other long term parts supply agreement with similar
terms and conditions a price that is less than the price that Supplier charges
SMMO for comparable Parts hereunder, the price for the Parts that Supplier sells
to SMMO pursuant to this Agreement will be reduced to such lower price both
prospectively for as long as Supplier is charging any other customer such lower
price and retrospectively to the earliest date on which Supplier charged such
lower price and Supplier will promptly refund to SMMO all amounts paid by SMMO
to Supplier that will allow SMMO, or its representative to review such
documentation as is reasonably required to assure compliance with the terms of
this Section 3.2.
3.3. Supplier will invoice SMMO each month for the conforming Parts
delivered by Supplier in accordance with the terms of this Agreement. Payment
terms for all such invoices will be net 120 days after the date of SMMO's
receipt of Supplier's invoice and all payments will be made in U.S. Dollars.
ARTICLE IV - COOPERATIVE ACTIVITIES
4.1. The parties agree that within six months after the commencement of
this Agreement, and annually thereafter, the parties will participate in a
formal review of their performance under this Agreement at a location selected
by SMMO.
4.2. Supplier will obtain and maintain in force throughout the term of
this Agreement all certifications, licenses and other approvals of the FAA, the
Joint Airworthiness Authority and all other airworthiness authorities that are
required to enable SMMO to deliver to its customers Parts sold to SMMO by
Supplier.
4.3. Supplier agrees that it will meet or exceed SMMO's quality
requirements for the Parts sold by Supplier under this Agreement as specified by
SMMO in shipping documents, purchase orders, internal engineering notices,
Manufacturer's Manuals or otherwise. Supplier's obligation to deliver Parts to
SMMO hereunder will include the delivery of such documentation (which may
include, but not be limited to, Certificates of Conformance and FAA Form
8130's) as SMMO may require to assure SMMO that the Parts conform to the
requirements of this Agreement and such documentation as SMMO requires to
enable it to deliver such Parts to its customers. In addition, with respect to
all Parts delivered by Supplier to SMMO under this Agreement, Supplier will
provide SMMO with documentation confirming the identity of the original
equipment type certificate holder, that such Parts
6
6
were manufactured under the original equipment type certificate holder's
approved manufacturing quality assurance system and that such Parts were
maintained or repaired in accordance with the original equipment type
certificate holder's instructions for continued airworthiness.
4.4. Supplier and SMMO will install an electronic data interface or
other mutually acceptable method for communicating Parts requirements, delivery
commitments, invoices and other information relevant to the parties' performance
under this Agreement. Supplier will provide SMMO with weekly reports of the
status of Parts that Supplier has committed to deliver and will make available
daily performance updates in a format and level of detail acceptable to SMMO.
4.5. Supplier will, without charge to SMMO, maintain at such facility
or facilities as SMMO and Supplier agree, a representative to participate in
business meetings relating to this Agreement, to coordinate shipments and
deliveries to provide information regarding the status of Parts ordered by SMMO
and to coordinate other matters arising under this Agreement. Supplier will
also provide, without charge to SMMO, upon such sufficient prior notification as
the parties agree, representatives for participation in meetings with SMMO
customers at such locations as SMMO and Supplier from time to time agree.
4.6. [Intentionally omitted]
7
7
4.7 From time to time, SMMO may acquire from sources other than
Supplier Parts that are excess to SMMO's requirements. Supplier agrees that,
at the request of SMMO from time to time during the term of this Agreement,
Supplier will purchase such excess Parts at prices and upon terms to be
negotiated in good faith between Supplier and SMMO.
ARTICLE V - INSPECTION
Supplier hereby grants to SMMO and its authorized representatives the
right to inspect and to test the materials and workmanship of the Parts at all
times. Notwithstanding any prior inspection or payment for the Parts delivered
by Supplier to SMMO pursuant to this Agreement, SMMO will have the right to
reject any Parts that do not conform to the requirements of this Agreement.
SMMO may exercise this right of rejection at any time within 30 days after
Supplier has delivered Parts that SMMO determines to be nonconforming. In the
event that SMMO rejects a Part, SMMO will either return the rejected Part to
Supplier, transportation collect (declared at full value unless Supplier
advises otherwise) for credit or refund at SMMO's option, or in the case of a
rejected Overhauled Part or Repaired Part, will itself overhaul or repair the
rejected Overhauled Part or Repaired Part as provided in Section 6.1, and
Supplier will not replace such Part without written instructions from SMMO.
SMMO's rights under this Article V are in addition to its rights under Section
6.1 below and to its rights otherwise existing under applicable law.
ARTICLE VI - WARRANTIES
6.1 The warranties and remedies for Parts delivered by Supplier to
SMMO under this Agreement, will include those set forth below:
(a) Supplier warrants that the Parts delivered by Supplier to SMMO
under this Agreement will be free from defect in workmanship and material, in
strict conformance with the requirements for such Parts set forth in this
Agreement (including the applicable Overhaul Specification in the case of
Overhauled Parts or the applicable Repair Specification in the case of Repaired
Parts), merchantable and fit for the purpose for which they are intended by
SMMO and its customer. Supplier further warrants that none of the Parts
delivered by Supplier under this Agreement will be or include any so called
"unapproved parts", "unauthorized parts" or "PMA parts", i.e. parts that have
not been manufactured by, or in accordance with a license from, the original
equipment type certificate holder. Supplier agrees to repair or re-
8
8
place, at SMMO's option and without cost to SMMO, any Part delivered by
Supplier which SMMO determines to be not in accordance with this warranty
within the later of (i) one year after commencement of use of the Part by the
ultimate user thereof or (ii) 18 months after the date of delivery of the Part
by Supplier. SMMO may also, with the written agreement of Supplier, overhaul
or repair any Part delivered to SMMO that Supplier considers to have been
overhauled or repaired but that SMMO determines to be not in accordance with
this warranty and set off its customary invoice price for such overhaul or
repair work against any amounts due Supplier or invoice Supplier for such price
or accept any Part with an equitable reduction in price.
(b) Supplier warrants to SMMO that Supplier will convey good title
to all Parts delivered by Supplier hereunder, free from all claims, liens,
encumbrances and other charges of any kind.
(c) Supplier agrees that all warranties of Supplier covering Parts
delivered under this Agreement will extend to, and be for the benefit of, SMMO
and its customers and will survive the expiration or termination of this
Agreement. Transportation charges for the return of nonconforming Parts to
Supplier and the risk of loss thereof will be borne by Supplier.
6.2 The warranties and remedies for Parts sold by SMMO to Supplier
under this Agreement, will be as set forth below:
(a) SMMO warrants to Supplier that at the time of delivery by SMMO,
all Parts delivered by SMMO to Supplier pursuant to Section 4.6 or 4.7 will be
free from defects caused solely by SMMO's handling of such Parts and SMMO makes
no other warranties whatsoever with respect to the quality of such Parts.
SMMO's liability and Supplier's remedy under this warranty are limited to the
repair or replacement, at SMMO's election, of Parts returned to SMMO which are
shown to SMMO's reasonable satisfaction not to have conformed with this
warranty at the time of delivery of such Parts to Supplier; provided that
written notice of the nonconformity will have been given by Supplier to SMMO
within one year after the date of delivery of such a Part by SMMO.
Transportation charges for the return of nonconforming Parts to SMMO and the
risk of loss thereof will be borne by SMMO.
(b) SMMO warrants to Supplier that SMMO has taken no action to
create a claim, lien, charge or encumbrance on any of the Parts delivered by
SMMO to Supplier pursuant to Section 4.6 or 4.7 (other than any security
interest SMMO may have as a matter of law to secure payment for such Parts).
SMMO's liability and Supplier's remedy under this warranty are limited to the
removal of any title defect created by
9
9
SMMO or, at the election of SMMO, to the replacement of the Parts, title to
which SMMO has encumbered.
(c) THE FOREGOING WARRANTIES BY SMMO ARE EXCLUSIVE AND ARE GIVEN
AND ACCEPTED IN LIEU OF (i) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND (ii) ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY IN CONTRACT, TORT OR STRICT LIABILITY, WHETHER OR NOT ARISING
FROM SMMO'S NEGLIGENCE, ACTUAL OR IMPUTED, AGAINST SMMO, ITS DIRECTORS, OFFICERS
OR EMPLOYEES. SMMO DOES NOT WARRANT ANY PARTS THAT WERE NOT ORIGINALLY
MANUFACTURED BY XXXXX & XXXXXXX. THE REMEDIES PROVIDED TO SUPPLIER WILL BE
LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES
INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES OF SMMO, REMEDIES OF
SUPPLIER OR THIS LIMITATION WILL BE BINDING UPON SMMO UNLESS IN WRITING, SIGNED
BY A DULY AUTHORIZED OFFICER OF SMMO.
ARTICLE VII - DELAYS IN DELIVERY
The parties recognize that in view of the nature of the relationship
rated by this Agreement, the failure of Supplier to make timely deliveries
hereunder would result in damages to SMMO that would be significant and that
may be difficult to quantify. Therefore, in the event that Supplier fails to
make timely delivery of a Part that Supplier has committed to deliver pursuant
to Section 2.3, together with the documentation required by Section 4.3, in
accordance with the terms of this Agreement and, as a result of such failure
SMMO is required to purchase a substitute Part (which may be a new Part to
substitute for a New Surplus, Overhauled, Repairable, Repaired or Serviceable
Part), Supplier will pay as damages to SMMO an amount in cash equal to the
difference between the price paid by SMMO for such substitute Part (even if
such substitute Part shall be a new Part) and the price that Supplier agreed to
sell the delayed Part to SMMO pursuant to this Agreement.
ARTICLE VII - TITLE, RISK OF LOSS AND TAXES
8.1. Title and risk of loss to all Parts sold pursuant to this
Agreement will pass (a) in the case of Parts sold to SMMO, upon delivery of
such Parts F.O.B. Supplier's Florida facility and (b) in the case of Parts sold
to Supplier, when SMMO places such Parts in the hands of a shipper at SMMO's
facility.
8.2. All taxes, imposts, duties and other governmental charges
arising from the sale or delivery of Parts to or by SMMO pursuant to this
Agreement will be paid by Supplier.
10
10
ARTICLE IX - FINANCIAL STATUS OF SUPPLIER
If, while this Agreement is in effect, (a) Supplier admits in writing
its inability to pay its debts, (b) a receiver or trustee is appointed for any
of Supplier's property, (c) Supplier is adjudicated a bankrupt, (d) application
for reorganization under any bankruptcy or similar law is filed by or against
Supplier and is not dismissed within 30 days, (e) Supplier becomes insolvent or
makes an assignment for the benefit of creditors or takes or attempts to take
the benefit of any insolvency law, (f) an execution is issued pursuant to a
judgment rendered against Supplier, (g) Supplier becomes unable or refuses to
make timely payment to SMMO or any other division, subsidiary or affiliate of
SMMO or (h) a change in control of Supplier or any of Supplier's operations
should occur, SMMO may at its option terminate this Agreement by giving
Supplier written notice of such termination. Such termination will be
effective upon delivery of such notice and SMMO will thereupon by relieved of
any further obligations to Supplier under this Agreement.
ARTICLE X - COMPLIANCE WITH LAW
In the performance of this Agreement, Supplier will comply with all
applicable federal, state and local laws, and Supplier will indemnify SMMO and
its stockholders, directors, officers, employees and customers against any and
all liabilities due to Supplier's failure so to comply. Without limiting the
generality of the foregoing, Supplier certifies that the Parts to be delivered
by Supplier to SMMO under this Agreement will be produced in compliance with the
Fair Labor Standards Act of 1938 (29 U.S.C. Sections 201-219), as amended, and
with the provisions of all other applicable laws relating to labor relations,
minimum wages, hour of employment and other terms and conditions of employment.
ARTICLE XI - TERM AND TERMINATION
11.1. This Agreement will become effective when both parties have
executed it and will remain in effect until the third anniversary of the date of
this Agreement. SMMO will have the option to renew this Agreement for an
additional two year period by delivering to Supplier a written notice of SMMO's
intention to renew this Agreement not later than 180 days before the expiration
of the initial term of this Agreement.
11.2. This Agreement is subject to termination for any reason by
either party at any time, which termination will become effective 180 days from
the delivery of written notice to the other party. In the event of a
termination under this Section 11.2, all deliveries that Supplier has com-
11
11
mitted to make pursuant to Section 2.3 prior to the effectiveness of the notice
of termination will be completed by Supplier in accordance with the terms and
conditions of this Agreement.
ARTICLE XII - PROPRIETARY INFORMATION AND INVENTIONS
12.1. For purposes of this Agreement, the term "Proprietary
Information" shall mean all technical information, designs, manufacturing
processes, know-how, business forecasts and other information and ideas
disclosed by or on behalf of either party to the other in writing or other
tangible or machine readable form and market "proprietary" or, if not in
writing, identified as proprietary at the time of disclosure and reduced to
writing within 30 days thereafter. The term Proprietary Information will also
include the terms of this Agreement and each Requirements Purchase
Order/Forecast, whether or not marked "proprietary".
12.2. Each party agrees not to use any Proprietary Information of the
other party other than for the purposes described in this Agreement and not to
disclose any such Proprietary Information to any third party. Each party
further agrees to treat all Proprietary Information of the other party with the
same degree of care that the receiving party treats its own proprietary
information but in no event with less than reasonable care. Each party will
restrict the Propriety Information of the other party only to those of its
employees who have a need to know such information, and then only to the extent
of such need to know.
12.3. Notwithstanding the foregoing, nothing herein shall restrict
either party's right to use or to disclose any information which: (i) is known
to such party prior to the date of this Agreement; (ii) is or becomes publicly
known other than because of disclosure by the receiving party; (iii)
disclosed to such party without restriction by a third party who had a right
to disclose it; (iv) is disclosed by the other party to a third party without
any obligation of nondisclosure required thereof; or (v) is independently
developed by such party.
12.4. Supplier agrees that it will not disclose to any third party
that it has entered into this Agreement without the prior specific written
consent of SMMO, which consent SMMO will not unreasonably withhold.
12.5. Each party's obligations under this Article XII will survive
the expiration or termination of this Agreement.
12
12
ARTICLE XIII - INSURANCE
Supplier agrees that it will
(a) obtain and maintain in effect aviation product liability
insurance with available limits of not less than $100,000,000 per occurrence
combined limit;
(b) cause its aviation product liability insurers to endorse all
policies for such insurance to name SMMO as an additional insured; and
(c) provide to SMMO for review and approval certificates of such
insurance which shall (i) be kept current throughout the term of this
Agreement; (ii) provide that Supplier's aviation product liability insurance
will be primary to any other insurance that may be collectible by any
additional insured; (iii) provide that if any of Supplier's aviation product
liability policies are canceled or not renewed, if for any reason whatsoever
any substantial change is made in coverage that affects the interest of any
additional insured or if such policy is allowed to lapse because of nonpayment
of premiums, such cancellation, nonrenewal, change or lapse will not be
effective as to such additional insured until 30 days after SMMO's receipt of
written notice from Supplier's insurer of such cancellation, change or lapse.
ARTICLE XIV - NOTICES
All notices and other communications authorized hereunder will be
given in writing either by personal delivery or by registered or certified
mail, return receipt requested, or by SITA or telecopier, addressed as follows:
In the case of Supplier, to
Interstar Trading Corporation
d/b/a AVTEAM
0000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
___ Attention: Xx. Xxxxxx X. Xxxx
In the case of SMMO, to
United Technologies Corporation
Xxxxx & Xxxxxxx Group
Surplus Materials Management Organization
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Sales Manager
The date upon which any such notice is so personally delivered or if the notice
is given by mail, the third business
13
13
day after mailing, or if by SITA or telecopier the first business day following
the date sent with an electronic confirmation, will be deemed to be the date of
delivery of such notice, irrespective of the date appearing therein.
ARTICLE XV - DEFAULTS
For purposes of this Agreement, an "Event of Default" will be
considered to have occurred if any party (the "defaulting party") fails to
perform any material term or condition of this Agreement and continues such
failure for 30 days after written notice of such default is given to the
defaulting party. If an Event of Default occurs, the nondefaulting party will
have the right to terminate this Agreement upon written notice to the
defaulting party and if the nondefaulting party so exercises this right, the
nondefaulting party will be relieved of all its further obligations under this
Agreement (other than the obligation to pay for all conforming Parts delivered
before the delivery of the notice of termination). Any decision by the
nondefaulting party to exercise or to waive its right to terminate this
Agreement will not relieve the defaulting party from its liability for damages
incurred by such nondefaulting party due to such breach except to the extent
that such liability or any portion thereof is specifically waived in writing.
ARTICLE XVI - MISCELLANEOUS
16.1. This Agreement will be interpreted in accordance with, and the
construction thereof will be governed by, the internal substantive laws of the
State of Connecticut. Captions as used in this Agreement are for convenience
of reference only and will not be deemed or construed as in any way limiting or
extending the language of the provisions to which such captions may refer.
16.2. Except as hereinafter further provided, this Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior written or oral agreements,
understandings, presentations, negotiations and correspondence between them.
Additional or inconsistent printed terms appearing on, or attached to,
Supplier's responses to Requirements Purchase Order/Forecasts or otherwise will
not apply to transactions under this Agreement. Supplier agrees that the
"Xxxxx & Whitney Terms and Conditions of Purchase (Volume 91-A)" will apply to
all sales of Parts by Supplier to SMMO pursuant to this Agreement as if such
Terms and Conditions of Purchase were set forth in full herein except that in
the case of any inconsistency between the terms of this Agreement and such
Terms and Conditions of Purchase, the terms of this Agreement will prevail.
14
14
16.3. Neither party hereto will by act, delay, omission or otherwise
be deemed to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the party's authorized representative. No
waiver, express or implied, by either party of any breach or default by the
other party hereunder will be deemed or construed to be a consent or waiver to
or of any other breach or default. Failure to complain of any act or failure
to act of a party or to declare a party in default hereunder, irrespective of
how long such a failure continues, will not constitute a waiver of any rights
of the non-defaulting party.
16.4. This Agreement may be executed in counterparts, each of which
will be deemed an original but all of which will constitute one and the same
instrument.
16.5. If one or more of the provisions contained in this Agreement is
for any reason held to be invalid, illegal or unenforceable in any respect in
any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision of this Agreement or the application of such
provision in any other jurisdiction or to other circumstances as to which it is
not invalid, illegal or uneforceable and this Agreement will be construed as if
such invalid, illegal or unenforceable provision, to the extent of the
invalidity, illegality or unenforceability, had never been contained in it. In
addition, the parties will in good faith endeavor to reach agreement on a
provision to replace the offending provision, which, as nearly as possible,
will reflect the intent of the original provision.
16.6. This Agreement will not be amended, supplemented or modified by
any course of dealing, course of performance or usage of trade, and may be
amended, supplemented or modified only by a written instrument duly executed by
the parties' authorized representatives.
16.7. This Agreement may not be assigned by either party, in whole or
in part, without the prior written consent of the other party, except that
Supplier's consent will not be required for any assignment by SMMO to another
division, subsidiary or affiliate of SMMO.
16.8. The rights and remedies of SMMO described in this Agreement are
cumulative and additional to any other rights or remedies that SMMO may have
under applicable law.
16.9. Nothing in this Agreement is intended to create a partnership,
joint venture, principal-agent relationship or any other legal relationship
between the parties other than that of a buyer and seller.
15
15
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by an authorized officer as of the date first above written.
INTERSTAR TRADING CORPORATION
d/b/a AVTEAM
By /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Chief
Executive Officer
UNITED TECHNOLOGIES CORPORATION
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
Xxxxx & Xxxxxxx Group,
Aftermarket Operations
