ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE, OR (d) ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, ALL OF WHICH ARE
HEREBY EXPRESSLY EXCLUDED AND EXTINGUISHED. SELLER AND BUYER HEREBY ACKNOWLEDGE
THAT SELLER'S EXPRESS REPRESENTATION AND WARRANTY OF TITLE IS EXCLUDED FROM THE
FOREGOING.
8.2Waiver of Warranty of Description.
IN CONSIDERATION OF (a) BUYER'S RIGHTS
HEREUNDER TO INSPECT THE AIRCRAFT AND (b) SELLER'S ASSIGNMENT TO BUYER OF ANY
EXISTING AND ASSIGNABLE WARRANTIES OF MANUFACTURER AND THE ENGINE MANUFACTURER,
BUYER HEREBY AGREES THAT ITS ACCEPTANCE OF THE AIRCRAFT AT DELIVERY AND ITS
EXECUTION AND DELIVERY OF THE RESPECTIVE AIRCRAFT DELIVERY RECEIPT CONSTITUTE
BUYER'S WAIVER OF THE WARRANTY OF DESCRIPTION, ANY CLAIMS BUYER MAY HAVE AGAINST
SELLER BASED UPON THE FAILURE OF THE AIRCRAFT TO CONFORM WITH SUCH DESCRIPTION
AND ANY AND ALL RIGHTS IT MAY HAVE TO ANY REMEDIES PROVIDED PURSUANT TO THE
GOVERNING LAW SPECIFIED IN SECTION 15.18. EVEN IF AT ANY TIME THE FAILURE OF THE
AIRCRAFT TO CONFORM TO SUCH DESCRIPTION SUBSTANTIALLY IMPAIRS THE VALUE AND
UTILITY OF THE AIRCRAFT AND EITHER (i) BUYER ACCEPTED THE AIRCRAFT BASED ON A
REASONABLE ASSUMPTION THAT THE NONCONFORMITY WOULD BE CURED AND IT WAS NOT
SEASONABLY CURED, OR (ii) BUYER ACCEPTED THE AIRCRAFT WITHOUT DISCOVERING THE
NONCONFORMITY BUT BUYER'S ACCEPTANCE OF THE AIRCRAFT WAS REASONABLY INDUCED
EITHER BY SELLER'S ASSURANCES OR BY THE DIFFICULTY OF DISCOVERING ANY DEFECT
PRIOR TO ACCEPTANCE, BUYER AGREES NOT TO LOOK TO SELLER FOR DAMAGES OR RELIEF
ARISING OUT OF THE FAILURE OF THE AIRCRAFT TO CONFORM TO SUCH DESCRIPTION.
15
8.3Buyer Waiver.
Buyer hereby waives as between itself and Seller and agrees
not to seek to establish or enforce any rights and remedies, express or implied
(whether statutory or otherwise) against Seller or the Aircraft relating to any
of the matters mentioned in the above Sections 8.1 and 8.2 and the purchase
thereof by Buyer from Seller.
8.4Conclusive Proof.
DELIVERY BY BUYER TO SELLER OF THE AIRCRAFT DELIVERY
RECEIPT RELATING TO EACH AIRCRAFT WILL BE CONCLUSIVE PROOF AS BETWEEN BUYER AND
SELLER THAT BUYER'S TECHNICAL EXPERTS HAVE EXAMINED AND INVESTIGATED SUCH
AIRCRAFT AND ENGINES AND (a) EACH IS AIRWORTHY AND IN GOOD WORKING ORDER AND
REPAIR AND (b) SUCH AIRCRAFT AND ENGINES AND THE AIRCRAFT DOCUMENTATION ARE
WITHOUT DEFECT (WHETHER OR NOT DISCOVERABLE AT DELIVERY) AND IN EVERY WAY
SATISFACTORY TO BUYER.
8.5No Seller Liability for Losses.
Buyer agrees that Seller will not be
liable to Buyer, any or any other Person, whether in contract or tort and
however arising, for any cost, loss or damage (special, incidental,
consequential or otherwise) such as lost revenues, lost profits or loss of
prospective economic advantage, arising out of the condition of any Aircraft,
whether or not due in whole or in part to an act or omission or the active or
passive negligence of Seller.
8.6No Liability to Repair or Replace.
Except as otherwise expressly provided
in this Agreement, Seller will not