1. Definitions

“Acceptable method of communication” shall mean written communication either by posted letter, fax (facsimile), or E-mail (electronic mail).  Though not official, a telephone call or direct personal conversation may precede an Acceptable Method of Communication. The effective date of each Acceptable Method of Communication shall be deemed to be the date upon which it is received.

“Affiliate” of a Person means any Person that directly or indirectly controls, or is under common control with, or is controlled by, the indicated Person.  As used in this definition, “control” (including with its correlative meanings, “controlled by” and “under common control with”) means possession, directly, or indirectly, of power to direct or cause the direction of management or policies, whether through ownership or voting securities, by contract or otherwise.

“Buyer” means the person(s) or company that purchases Product, Services or Repair Services from PBEC pursuant to the Order.

“Buyer’s Property” (for the purposes of Component and Accessory Repair Services) shall mean materials, or related items of which the Buyer has title and which the Buyer has furnished to the Seller to be repaired or used in the process of repair at its overhaul and repair operations.

“Days” shall mean calendar days if not stated differently.

“Delivery” from PBEC shall mean unless otherwise agreed to in writing by both parties, Ex Works EXW PBEC Facility and shall be governed by Incoterms 2010. Assets being sent to PBEC for inspection, repair or overhaul will be DDP, PBEC Facility. Repaired assets being returned shall be Ex Works (EXW, Incoterms 2010) into the custody of the Buyer’s Freight Forwarder.

“Destination” is to be intended as the “Ship-to” destination address identified on the shipping documentation and corresponding to the address indicated by the Customer for shipping purposes.

“Excusable Delay” is defined in clause 20.

“Intellectual Property” means all data, information, specifications, designs, drawings, programs, derivative works, computer software including source code or object code, ideas, techniques, methods, processes, know-how, documentation and materials, inventions, discoveries enhancements, copyrights, database rights, topography rights, design rights, trademarks, trade names, utility models, patents, domain names and any other intellectual property rights of a similar nature (whether or not registered) associated with the Products, Services or Repair Services.

“Non-Serviceable” shall mean less than operational and not acceptable for continued use under the criteria established by the applicable Technical Order.

“No Fault Found” means a Repair Item or Warranty Item for which PBEC is unable to confirm the failure claimed.

“Order” or “Purchase Order” shall mean collectively, the binding, enforceable agreement between PBEC and Buyer (individually “Party” and collectively the “Parties”) for the sale and purchase of Products, Services and/or Repair Services and unless otherwise stated, presumes application of these Terms and Conditions of Sale.

“PBEC” means Patria Belgium Engine Center SRL, a company incorporated in Belgium.

“Product” means all components, spare parts, goods, equipment or materials of any kind supplied by PBEC under the Order, excluding such items provided pursuant to completion of Repair Services or repair under warranty.

“Proposal” for the purposes of this Agreement, shall mean a written offer from the Seller, which may be in response to the Buyer’s Request for Proposal (RFQ)

“Repair Item” is the commodity where the Seller has repaired or replaced Buyer’s components with new or serviceable items.

“Repair Services” means repair or overhaul services paid for by the Buyer (excluding valid warranty repairs).  

“Request for Quotation” or “RFQ” shall be a written request for prices for Services or Serviceable Material Assets.

“Seller” shall mean Patria Belgium Engine Center SRL (“PBEC”).

“Serviceable” shall mean operational and acceptable for continued use under the criteria established by the applicable Technical Orders.

“Services” means engineering, technical support services, including repair and inspection and maintenance services related to design, production or technical support specifically identified as a purchased item under the Order.

“Taxes” means all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, excise, franchise, gross receipts, import, license, property, sales, stamp, turnover, use, or value added taxes and any and all items of withholding, deficiency, penalty, addition to tax, interest or assessment related thereto).

”Warranty Item” means an item which is the subject of a warranty claim in accordance with clause 10.  

2. Products and services to be supplied

PBEC shall sell and Buyer shall purchase Products, Repair Services or Services as described in the Order. All proposals of PBEC are subject to change at any time prior to acceptance by PBEC of an acceptable Order. PBEC proposals will expire either at the end of the validity period stipulated in such proposal or where no validity period is stated, 30 days after the date of the proposal.   

3. Application of these terms and conditions

Acceptance of the Order includes, unless otherwise specified, acceptance of these Terms and Conditions and is strictly limited to the terms set forth herein.  No modifications or alterations may be made to these provisions unless it is mutually agreed in writing by both Parties.

4. Purchase price

Prices are subject to reasonable adjustment based upon increases in PBEC’ costs and are subject to economic price adjustments as described in the Order. All prices are exclusive of Taxes.    
The pricing for the sale of Services under this Agreement is based on the actual repair work scope expected to be performed. In the event the work scope set forth in the latest available revision of any applicable technical directive results in increased costs to the Seller, or of unexpected increase of prices by vendors which cannot be predicted at the time the pricing analysis is performed, Seller may adjust its pricing.

5. Payment

(A) Unless otherwise agreed between the Parties in writing, the Buyer shall pay to PBEC: (i) the purchase price in full; (ii) within 30 days of the date of invoice; (iii) without any deduction, retention, withholding or set off; (iv) in Euros or US dollars as identified in the Order.

(B) If payment is late Buyer must pay interest on the overdue amount. Interest will be applied on the overdue amount at a rate of 10% per annum above the European Central Bank’s main refinancing rate. Such interest shall accrue on a daily basis from the day immediately following the payment due date until actual payment in full of the overdue amount.

(C)  If PBEC reasonably determines that Buyer’s financial condition or payment history (including failure to pay by due date) represents a risk of non-payment under the Order, PBEC may: (i)  request payment security; or (ii) suspend or terminate the unperformed portion of the Order, including warranty obligations.

(D) If PBEC is ready to make delivery but Buyer cannot accept delivery as scheduled, any amounts otherwise payable to PBEC upon delivery shall be payable upon delivery into storage against submission of PBEC’s invoice.

6.  Inspection and acceptance 

(A) All quality control exercised in the manufacture of the Products or in the performance of the Services shall be in accordance with PBEC quality control policies, procedures and practices.

(B)  PBEC shall deliver Products and Services with evidence of inspection (where applicable) by a PBEC quality control representative.

(C)  If Products delivered do not correspond in quantity, type or price to those itemised in the shipping invoice or documentation, Buyer shall notify PBEC within a period of 10 business days to begin on the day of delivery at Destination. If Buyer fails to notify PBEC within the specified period, the Products are deemed accepted.

7. Delivery 

(A)   Unless otherwise agreed in writing by PBEC, delivery to Buyer shall be EXW PBEC’s facility or warehouse.  (Incoterms 2010 shall apply). Partial deliveries are permitted. PBEC may deliver Products and Services in advance of delivery schedule.

(B)  Delivery dates are subject to prompt receipt by PBEC of all information necessary to permit PBEC to proceed with its obligations under the Order. This includes any information required to enable PBEC to deliver Buyer’s Products, Repair Items or Warranty Items in accordance with relevant regulations, including international trade laws and regulations applicable to the items object of the Order and US export control regulations, whenever the items are controlled under national export control legislation, the US Arms Export Control Act, the EAR or the ITAR. If Buyer does not provide such information within six months of PBEC’s written request then PBEC reserves the right to dispose of Buyer’s Products, Repair Items or Warranty Items in a manner that it sees fit without notice, retaining any monies paid by Buyer.

(C)  PBEC shall use reasonable efforts to make timely delivery subject to Excusable Delay. Any specific delivery dates that may be stated are approximate.  

(D) If for any reason Buyer cannot accept any portion of a delivery of the Products or items repaired under a Repair Service or warranty, PBEC may make delivery by placing such items in storage whereupon title and risk of loss or damage shall pass to Buyer. In such event, Buyer shall bear all storage related expenses.

(E)  Delivery may at any time be withheld by PBEC pending payment of any sum due from the Buyer to PBEC under the Order or any other agreement between the Parties. Any withholding of delivery shall be without prejudice to PBEC’ remedies under applicable law.   

8. Title transfer and risk of loss

(A) Title and risk of loss in the Products shall pass to Buyer upon: (i) delivery in accordance with clause 7 (A); or (ii) delivery into storage in accordance with clause 7 (D).

(B)  Buyer acknowledges and agrees that PBEC shall have a lien on the Product retained in possession of PBEC to the extent otherwise provided by law.  Buyer acknowledges that the lien (whether granted by Buyer or through the operation of law) for Repair Services shall be: (i)  for the full value of such work; (ii)  superior to any lien or interest in favour of Buyer, its parents, affiliates, or subsidiaries, or any other person who has knowledge of the Order.  

(C)  To the extent that PBEC maintains possession of either a Product or non-PBEC product under Repair Services, Buyer agrees that PBEC is a secured creditor of Buyer and has all the rights of a secured creditor. 

9.  Repair and overhaul

(A) Buyer’s Repair Items shall be inspected, repaired and/or overhauled in accordance with commercial standard practice or such other practice as may be agreed in writing.

(B) Buyer must send Repair Items to PBEC Delivered At Place DAP PBEC facility. Repair Items will be returned to Buyer EXW PBEC facility. (Incoterms 2010 shall apply).  

(C) Buyer must send documentation with the Repair Items which describes the defect or reason for service requested as well as a description of the work scope to be included. Buyer documentation shall include: (i) reference to Buyer’s Purchase Order; (ii) complete identification of Repair Items to include Part Numbers, Description of the items and Serial Numbers; (iii) accumulated and/or remaining cycles.

(D) If containers are required for the return of Repair Items to Buyer, PBEC will use: (i) Buyer’s containers; or (ii) if available and at the Buyer’s cost, PBEC provided containers; which shall comply with PBEC’ standards for packaging and preservation.

(E) In the event that a price agreement for the Repair Services cannot be reached, PBEC shall return the Repair Items to the Buyer at Buyer’s risk and cost.

(F) In the event there is No Fault Found, all costs incurred by PBEC shall be borne by the Buyer. PBEC shall return such goods to Buyer at Buyer’s expense subject to EXW PBEC’ facility (Incoterms 2010 shall apply).

10. Warranties

(A)  PBEC warrants that:  (i) Products shall be delivered free from defects in material, workmanship and title; (ii) Services shall be performed in a diligent manner in accordance with any mutually agreed specifications; (iii) At the time of delivery of overhauled or repaired items, the Repair Services performed by PBEC shall have been performed in a workmanlike manner. Parts used by PBEC to perform Repair Services (“Repair Components”) shall be free from defects in material and workmanship.

(B) The warranties shall expire:  (i)  for Products – 1 year from delivery in accordance with clause 7 (A);  (ii) for Services – 1 year after PBEC notifies Buyer of completion of the relevant Services; (iii) for Repair Services and Repair Components – 6 months after delivery of the repaired or overhauled items.

(C) Within 30 calendar days of discovery of any defect within the warranty period, Buyer must notify PBEC of the defect and ship the items to PBEC for inspection.  

(D) For any warranty return, the Buyer will notify PBEC Quality Manager to get a “return authorisation”. Buyer must return the Warranty Items which are the subject of the warranty claim Delivered at Place DAP PBEC’ facility. In the event that the Warranty Claim is accepted, PBEC will return the items DAP Buyer facility or warehouse. (Incoterms 2010 shall apply).

(E)  Buyer must send documentation with the Warranty Items which describes the fault.

(F)  In the event of a valid warranty claim, PBEC shall at its option: (i) repair or replace defective Products; (ii) re-perform defective Services/Repair Services.  If, despite PBEC’ reasonable efforts, a non-conforming Product cannot be repaired or replaced or a non-conforming Service or Repair Service cannot be re-performed, PBEC shall refund or credit monies paid by Buyer for such non-conforming Products or Services. Warranty repair, replacement or performance by PBEC shall not extend or renew the applicable warranty period.

(G)  In the event of an invalid warranty claim, the required repair may be carried out as a Repair Service in accordance with clause 9 at a charge to the Buyer. (H) If there is No Fault Found, clause 9(F) shall apply.

(I) In no event shall any warranty by PBEC under the Order extend to any of the following:  (i)   wear and tear;  (ii)  any item that has be subject to any alteration, repair or modification without written authorisation of PBEC;  (iii)  experimental running, or any type of operation or use outside that for which the item is designed or which is inconsistent with PBEC operational or maintenance instructions;  (iv) any Product from which PBEC’ or vendor’s trademark(s) or serial number(s) have been altered, removed, defaced or obliterated;  

(J) The provisions set out in this clause 10 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 statute, contract, tort or strict liability against PBEC whether or not arising from the negligence, actual or imputed, of PBEC or its affiliates, stockholders, directors, officers, employees, assigns and agents. The remedies of the Seller shall be limited to those provided herein to the exclusion of any other remedies including, without limitation, incidental or consequential damages. No agreement varying or extending the foregoing warranties, remedies or this limitation will be binding upon Seller or any of its affiliates unless in writing, signed by a duly authorized officer of Seller or such Affiliates.


(L)  Any official action or legal proceeding commenced by Buyer for alleged breach of this Warranty must be commenced within 24 months after delivery of the Product, Service or Repair Service.

11. Indemnity and limitation of liability

(A) Except for fraud or wilful misconduct by PBEC, neither PBEC or its suppliers will be liable whether in contract, in tort, under any warranty, for any special, indirect, incidental or consequential loss or damage whatsoever, or for loss of use of equipment or cost of capital, loss of profits or revenues or the loss of use thereof, cost of purchased or replacement power, or claims of customers of the Buyer. The remedies set forth therein are exclusive and the total cumulative liability of PBEC or any act or omission in connection therewith or related thereto, whether in contract, in tort, under any warranty, or otherwise, will be limited to the value added to the item on which liability is based.

(B)  In the event of an Excusable Delay, PBEC shall incur no liability for any subsequent:   (i) failure to deliver; or   (ii) delay in delivery; or   (iii)  losses or damages to Buyer.

(C)  Each of the Buyer and PBEC (as an “Indemnifying Party”) shall indemnify and hold harmless the other Party (as an “Indemnified Party”) from and against claims brought by a third party on account of personal injury or damage to the third party’s tangible property to the extent caused by the gross negligence or wilful misconduct of the Indemnifying Party in connection with the Order.

(D)  In no event shall PBEC be liable for: (i) loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of substitute equipment, cost of capital, cost of cover, downtime costs, increased operating costs, standby time delay damages; or (ii) any special, consequential, incidental, indirect or punitive damages or claims of Buyer’s customers for any of the foregoing types of damages.

(E)  If Buyer is supplying Products to a third party, or using Products at a facility owned by a third party, Buyer shall indemnify and hold PBEC harmless for and against any liability arising out of claims made by a third party in excess of the limitations set out herein.  

(F)  The foregoing provisions of this clause 11 shall constitute the sole and exclusive remedy of Buyer and the sole and exclusive liability of PBEC.  Buyer hereby waives, releases, and renounces all other rights, claims, and remedies against PBEC.  

12. Taxes

Buyer is responsible for all Taxes which are presently or may hereafter be imposed by any taxing authority. Each Party shall be liable for their respective corporate income taxes.  

13. Termination

(A)  Either Party may terminate the Order immediately upon written notice in the event that the other Party:  (i)  makes or offers to make an arrangement or composition with or for the benefit of its creditors; (ii)  ceases or threatens to cease to carry on business;  (iii)  suspends or threatens to suspend all or substantially all of its operations (other than temporarily by reason of a strike);  (iv)  suspends or threatens to suspend payment of its debts or is unable to pay its debts, including payments due under this or any other Order with PBEC as per clause 5(C)(ii); (v)  is presented with or passed a petition or resolution for the making of an administration order, the winding-up, or the dissolution (other than for the purposes of reconstruction or amalgamation of a solvent Party) which is not set aside within 14 calendar days; (vi)  is appointed a liquidator receiver, administrator, administrative receiver or encumbrancer to take possession of the whole or any part of its assets;  (vii)  is subject to any action or procedure in any jurisdiction which is similar to or analogous to any action or procedure contained within this clause 13; (viii) commits a material breach of the Order which is: (a) incapable of remedy; or (b) if capable of remedy, has not been remedied within 30  calendar days of receipt of a written notice from the other Party specifying the breach and requiring the same to be remedied. 

14. Entire agreement

(A)  The Order contains and constitutes the entire understanding and agreement between the Parties. All other agreements entered into between the Parties to the Order are excluded unless firmly attached to the Order.  If a court of competent jurisdiction determines any part of the Order to be invalid or unenforceable, the remaining provisions of the Order shall remain in full force and effect.

(B) No waiver or modification of the Order shall be binding unless made in writing and signed by both Parties.

15. Dispute resolution, governing law and forum  

(A)  If a dispute arises with regard to all or any portion of the Order, the Parties shall: (i) escalate such dispute to senior management, with the intention of reaching resolution within 30 calendar days;
(ii)  If the dispute cannot be resolved within 30 calendar days then the Parties shall have the option to settle the dispute using Arbitral proceedings in accordance with the rules of the International Court of Arbitration. This arbitration shall be held in Liège C.A.E. (Centre d’Arbitrage de l’Euregio) and any proceedings shall be conducted in the English language.

(B) In any event, each Party shall have the right to immediately seek injunctive relief upon any breach or threatened breach of the Order by the other Party that may cause irreparable harm if not immediately addressed.

(C)  This clause 15 shall not apply to claims related to a Party’s proprietary or intellectual property or confidentiality rights.  This clause shall not apply should it be in contrast with the terms of a public competition.

(D)  The rights and obligations of the Parties hereunder shall be governed in all respects by the substantive laws of Belgium.  

16. Confidentiality 

(A)  All information and data, whether pre-existing or generated as a result of the Order, which may be furnished or made available to Buyer either directly or indirectly as a result of the Order, shall remain the property of PBEC and shall constitute confidential information.  All such information is proprietary to PBEC and Buyer shall not use nor furnish such information to any other person, firm or corporation, except as provided herein. (Such information and data includes, but is not limited to: pricing, designs, drawings, blueprints, tracing, plans, models, layouts, specification and memoranda).

(B)  Nothing in the Order shall convey or licence to the Buyer the right to: (i) reproduce or cause the reproduction of any Product, information data or design identical or similar to that as identified in clause 16 (A); (ii) use the other party’s confidential information in order to develop any repair for Products; or (iii) any patents or rights owned or controlled by PBEC or any affiliated company.

(C)  Neither Party shall at any time and for a period of 5 years after termination of the Order, delivery or completion of the service disclose to any third party any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or any member of the group of companies to which the other Party belongs, except as permitted by clause 16 (D).  

(D)  Each Party may disclose the other Party’s confidential information relating to the Order only:  (i) to its employees, officers, representatives, and advisers, including Corporate management who: (a) need to know such information for the purposes of approving or carrying out the performance of Party’s obligations under the Order; and (b) who are subject to the same or similar restrictions as stated herein; or (ii) as may be required by law, court order or any governmental or regulatory authority.

(E) Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Order.  

17.  Export and import controls

(A)  Both Parties acknowledge and agree to comply with the applicable import and export laws and regulations of:  (i)   the Buyer’s country; and   (ii)  Belgium; and  (iii)  the United States, including the Arms Export Control Act , the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) where applicable.  

(C) Buyer and PBEC shall assist each other in every manner reasonably possible in securing and complying with such authorisations as may be required.  

(D) It shall be a condition precedent to Seller’s obligation to perform under this Agreement that a valid, applicable export license is issued and given effect by the U.S. Government, when required, and by the Belgian competent authority.  The Seller shall use commercially reasonable efforts to obtain an export license or similar authorization required by the U.S. Government and/or by the Belgian competent authority for the export of the Repaired Item(s) and/or Repair components sold under this Agreement.  Delays deriving by approval of export licenses are act of governments beyond the Parties’ control and are to be considered as excusable delays.
PBEC shall not be liable if any authorisation is delayed, denied, revoked, restricted or not renewed and Buyer shall not thereby be relieved of its obligation to pay PBEC.

(E) Buyer shall be responsible for any import documentation and/or customs duties required for importation into the destination country and shall be responsible for compliance with its national laws.

(F) Buyer agrees to notify PBEC immediately if Buyer is listed in any Denied Persons List, Entity List, or Specially Designated Nationals List, or if Buyer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or Belgium Government entity or agency.  

18. Intellectual property license and ownership 

(A)  Buyer acknowledges that all Intellectual Property in all Products, Services and Repair Services is  the property of PBEC (or its licensors or affiliates), and  Buyer shall have no rights in such Intellectual Property except where such rights are explicitly set forth in a written agreement between PBEC and Buyer

(B)  PBEC agrees to defend, indemnify, and hold harmless Buyer from and against any claims, damages, losses, costs and expenses, including reasonable attorney fees, arising out of any action by a third party that is based upon a claim that the Products, Services and Repair Services delivered or performed by PBEC infringe or otherwise violate the intellectual property rights of any person or entity.

(C)  PBEC’ liability hereunder is conditional upon the Buyer promptly notifying PBEC in writing of the claim and giving PBEC authority, information and assistance (at the expense of PBEC) for the defence of any suit or proceeding.  

(D)  In case a Product, Service or Repair Service is held in such suit or proceeding to constitute infringement and the use of said Product, Service or Repair Service is enjoined, PBEC shall, at its own expense and at its option, either:  (i)   procure for the Buyer the right to continue using such Product, Service or Repair Service;   (ii)  replace same with satisfactory and non-infringing product or service; or  (iii) modify same so it  becomes a satisfactory and non-infringing product or service.

(E)  PBEC shall not be responsible to the Buyer or any third party for incidental or consequential damage, including but not limited to, costs, expenses, liabilities or loss of profits resulting from loss of use.

(F) The remedies described in this clause 18 do not apply to any: (i) product, service or part not purchased by the Buyer from PBEC; or (ii) Product, Service or item repaired by PBEC that was: (a) changed, modified, or not used for its intended purpose; or (b) manufactured or performed by PBEC to the Buyer’s unique specifications or directions.  

(G)  The obligations set forth in this clause 18 shall constitute the sole and exclusive liability of PBEC for actual or alleged intellectual property infringement. 

19. Engineering changes

If PBEC accepts a request by the Buyer for an amendment or modification of the Order, an equitable adjustment shall be made in the price and/or delivery schedule to take into account any resulting increase or decrease in the cost or time required for the performance of any part of this Order. The Order shall be modified in writing to reflect any such change or adjustment. 

20.  Excusable delays

(A)  A delay or interruption in performance of the Order by either Party which is directly or indirectly attributable to events, which are beyond its reasonable control, shall be referred to as an “Excusable Delay”. Examples include, but shall not be limited to, acts of God, decisions of governmental authorities, including decisions of the US Government and its Agencies, the inability to procure spare parts, fire, acts of terrorism, war, strikes or labour disputes, severe weather conditions, epidemics, insurrection and retraction of consent or licence of any government.

(B) Notwithstanding the occurrence of an Excusable Delay, the affected Party shall make every reasonable effort to mitigate the effects of the Excusable Delay.

(C) Failure to make payment by Buyer shall not be deemed an Excusable Delay.

(D) Either Party may, upon 15 calendar days’ notice, terminate the Order in the event that an Excusable Delay: (i)   lasts longer than 120 days in the aggregate; and (ii) the Parties have not agreed upon a revised basis for continuing the work.

(E)  In the event of termination for Excusable Delay, as per clause 20(D), the Parties shall negotiate, in good faith, an equitable settlement of termination charges. 

21. Assignment 

(A)  Assignment of the Order or any associated rights or obligations by either Party without the prior written consent of the other Party shall be void, subject to clause 22 (B).

(B) PBEC may assign any or all of its rights or obligations under the Order to a subsidiary or affiliated company of PBEC, or to any entity for the purpose of factoring receivables without Buyer’s written consent.

22. Relationship

The Parties shall have no power to obligate or bind the other in any manner whatsoever and are not placed in a legal partnership or joint venture. 

23.  Third parties

Except as expressly provided elsewhere in these Terms and Conditions, a person who is not a party to the Order shall not have any rights to enforce any term of any Order. 

24. Headings

Any headings or paragraph titles are for the convenience of reference only and shall not define, limit or extend the scope of any provision.