Terms.
Preface
These General Terms and Conditions (‘GTC’) shall govern the provision of Services by Seller to Buyer. The General Terms which are applicable to all Services Seller agrees to Buyer under the GTC or any agreement pertaining thereto are described in chapter 1. Some additional conditions for some specific services are described in chapter 2 and chapter 3.
Chapter 2 will cover the additional conditions for Spare Parts supply and Component Repair and Overhaul and Aircraft Repair, Overhaul and Maintenance Services.
Chapter 3 will cover the additional conditions for Exchange Transactions.In the event there is a conflict between the additional conditions for specific services of chapters 2 and 3 and the General Terms of chapter 1, the additional conditions for specific services of chapters 2 and 3 shall prevail.
1. General terms
1.1. Definitions
The following definitions shall apply (such definitions to be equally applicable to both singular and plural forms of the terms to be defined):
Aircraft: an aircraft owned or operated by Buyer;
BER (beyond economical repair): a component of which the repair / overhaul value exceeds the replacement cost of a unit in serviceable or overhauled condition;
Buyer: the party to whom Seller provides Services;
Component: any self-contained part, combination of parts, sub-assemblies or units, which perform a distinctive function necessary to the operation of a system;
Core Unit: the Buyer Part which Buyer shall submit to Seller in respect of an Exchange Transaction;
Data: documents, drawings, manuals, computer programming information, software and all other forms of media storing, containing, conveying or embodying information, and regardless of whether the information is in hard copy, electronic, or any other form;
Days: calendar days, if not otherwise stated herein;
Exchange Transaction: a transaction whereby Seller shall
send an Exchange Unit to Buyer and in exchange Buyer shall submit a Core Unit to Seller and depending on type of Exchange transaction and / or condition of Core, will pay an additional charge to Seller;
Exchange Unit: the Seller Part which Seller shall send to Buyer in case of an Exchange Transaction;
Ex-works: ex-works as defined in the lncoterms 1990 or any subsequent edition thereof, issued by the International Chamber of Commerce, Paris, France;
Indemnities: seller and Seller’s Assignees and their respective directors, shareholders, affiliates, officers, employees, agents and subcontractors;
Information: all (technical) Data pertaining to Services, whether or not established by Seller and Buyer to be confidential, or copies of any of these supplied by Seller under the GTC;
Overhaul: the restoration of the Component according to the agreement pertaining to this GTC, in accordance with the instructions defined in the relevant manual;
Repair: the test and restoration, if applicable, of a defective Component and/or Aircraft, whichever is applicable according to the agreement pertaining to this GTC, to a serviceable condition only;
Seller: Koolhaas Alphen BV;
Seller’s Assignee: any person(s) or company (companies) used or assigned by Seller, either as a subcontractor or supplier, to perform Services, under the GTC or supplying Seller Parts or information pertaining thereto to Seller for the performance of Services by Seller under the GTC;
Seller’s Facility: such plant or facility as may be designated by Seller;
Seller Parts: Aircraft Components, systems, accessories, equipment and parts, including ground support equipment and special tools for the Aircraft supplied in accordance to Buyers specifications, delivered from Seller’s own stocks;
Spare Parts: the service provided by Seller to Buyer;
Vendor: any manufacturer or supplier (other than Seller) of Vendor Parts;
Vendor Parts: mean Aircraft Components, systems, accessory, equipment and parts, including ground support equipment and special tools for the Aircraft not covered by the definition of Seller Parts;To all definitions not defined in this 1.1, the definitions in the World Airlines Technical Operations Glossary, latest editions (WATOG) will apply.
1.2. General
Any Service Seller agrees to provide to Buyer shall be subject to (i) this GTC and (ii) such additional terms and conditions as are agreed upon by Seller and Buyer in writing. The GTC shall exclusively apply to all quotations made and agreements entered into by Seller with respect to the Services to be rendered, irrespective of what is mentioned in purchase orders, letters, general conditions and other documents issued by Buyer, unless otherwise expressly stated by Seller in relevant quotation or agreement. The applicability of any general terms and conditions which may be used by Buyer or to which Buyer may refer in any manner whatsoever is hereby specifically rejected.
1.2.1. Notices
Except as otherwise provided in the GTC or any agreement pertaining thereto, all notices and requests in connection with the GTC shall be given in writing and may be given by (air) mail, facsimile, cable, e-mail or any other customary means of (written) communication addressed as follows:
To Seller: Koolhaas Alphen BV, Eikenlaan 261 J, (2404 BP) Alphen aan de Rijn, The Netherlands;
or as the Party to receive notice or request shall designate by notice to the other. The effective date of any notice or request given in connection with the GTC or any agreement pertaining thereto shall be the date on which it is received by the addressee.
1.2.2. English Language
The performance of Services and all communication between Seller and Buyer regarding the GTC or any agreement pertaining thereto shall be in the English language.
1.2.3. Aviation Authority Requirements
It is hereby stated expressly that the mandatory requirements or other regulations issued from time to time by the Federal Aviation Authorities and/or the Joint Aviation Authorities, or any other local Airworthy Authority as agreed to be applicable between Seller and Buyer respectively, and imposed on Seller, shall be considered an integral part of the GTC to the extent applicable to the Services, and consequently and conflicting provisions as set forth herein shall be considered null and void. The parties accept as a joint responsibility that the agreement pertaining to the GTC shall ensure consistency with all requirements and obligations in effect pursuant to the aforesaid regulations, including required procedures and routines.
1.2.4. Validity
If any provision of this GTC should be held to be invalid or unenforceable, this GTC shall remain in force and effect in all other respects as if such provision had not been included in this GTC. Seller and Buyer shall then use all reasonable endeavors to replace the invalid or unenforceable provision by a valid provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
1.2.5. Headings
The headings used herein are for ease of reference only and shall not affect the interpretation of this GTC or any of its provisions.
1.3. Ordering Procedures
Upon Buyer’s request, Seller shall make price and schedule quotations for Services which quotations shall be valid for a period of thirty (30) days after the date of issue, unless otherwise stipulated in the relevant quotation. The Services shall only be rendered by Seller on the basis of a Buyer issued (written) order and accepted by Seller in (writing), unless Buyer and Seller have agreed in writing to an alternative procedure.
1.4. Delivery
1.4.1. Delivery
All goods and Services furnished under the GTC shall be delivered Ex-works Seller’s Facility, unless otherwise specified by Seller.
1.4.2. Packing
All goods and Services furnished under the GTC shall be packed generally in accordance with ATA (Air Transport Association of America) Specification 300 Cat. 11. If specifically requested by Buyer, ATA Specification 300 Cat. V containers or equivalents shall be used and the additional costs involved shall be for Buyer’s account.
1.4.3. Shipment
(1) All goods and/or Services furnished under the GTC shall be accompanied by packing documents indicating Buyer’s Purchase Order number, quantity shipped, part number (where applicable), key word and total value.
(2) Seller shall inform Buyer, as soon as practicable, about shipping arrangements made.
1.4.4. Buyer’s Responsibility
The Buyer shall be responsible to ensure the timely and continuous availability, validity, completeness, reliability and accuracy of any and all Data and goods, the Buyer is reasonably required to provide for the due performance of the Services by the Seller. Inspection by Seller of Buyer furnished items shall not relieve Buyer from its responsibility hereunder.
1.5. Terms and Conditions of Payment
(1) Unless otherwise agreed upon by Seller in writing or otherwise provided in the relevant chapters of the GTC prices for ordered Services to be rendered shall be due and payable on acceptance by Seller of Buyer’s order.
(2) If Seller incurs any costs in connection with additional Services (to be) rendered to Buyer, upon Buyer’s request, which cost were not mentioned in Seller’s quotation(s) or order acknowledgment(s), Seller shall invoice Buyer for such costs of such Services and Buyer shall pay the costs within thirty (30) days after the date of Seller’s relevant invoice. The same conditions as mentioned in the previous sentence shall apply for any unpaid balance.
(3) All payments to Seller shall be made in net convertible Euro’s (EUR), unless otherwise agreed upon in writing, for credit of Seller’s account with a bank to be nominated by Seller.
(4) If any amount due to Seller is not received by Seller when due hereunder, Buyer shall pay Seller interest on such overdue amount, together with any expenses (including reasonably attorney’s fees) incurred by Seller in connection with such overdue amount. Such interest shall be calculated at a rate of three (3) months London Interbank Offered Rate (“LIBOR”) for Euro’s, to be fixed at the rate valid and established on the first business day of each calendar month, plus three percent (3%), calculated on the basis of a 360-day year and actual number of days elapsed. For the purpose of the GTC and any agreement pertaining thereto the date of confirmation of credit by the above mentioned bank shall be the date of payment. Claiming or refraining from claiming costs and expenses and/or compensation from Buyer shall in no case prejudice any rights of Seller under the GTC or any agreement pertaining thereto.
(5) Seller shall have the right to require a payment or security acceptable to Seller for all sums due, to the extent not covered by the amounts received pursuant to 1.5.1
(6) In case Buyer disputes Sellers invoice, Buyer shall notify Seller of this dispute in writing within 14 (fourteen) days after the date of Sellers relevant invoice. In such event, Buyer is entitled to suspend payment of the disputed part of the invoice. As soon as possible Parties will discuss the disputed part of the invoice and make every reasonable effort to promptly settle the dispute. In the event the Parties agree that the dispute is justified, Seller will adapt the invoice and Buyer will subsequently pay outstanding amounts, if any, within fourteen calendar days of receipt of the corrected invoice. In the event that the Parties determine that the dispute was not justified, Buyer will promptly pay the disputed part to Seller plus an interest charge in accordance with paragraph 5 of this section 1.5. In no event shall Buyer claim a right of set off or a security interest.
1.6. Cancellation of Orders
In the event Buyer cancels a Purchase Order for any goods and/or Services, after delivery of such goods and/or Services by Seller to Buyer, Seller may recover a restocking charge in the amount of 10% of the net value of the cancelled Purchase Order, with a minimum of USD 150.00 or Euro equivalent. The restocking charge will be immediately due and payable with analogous application of the provision(s) of section 1.5. of this GTC.
1.7. Taxes, Duties, Licenses and Special Documents
(1) Any taxes, duties and other charges of any kind levied by any Netherlands authority in The Netherlands on Services to be rendered to Buyer or on payments to be made by Buyer to Seller shall be for the account of Seller.
(2) Any taxes, duties and other charges of any kind levied on the Services to be rendered to Buyer, which are not covered under section 1.7.1. (1) above, shall be for the account of Buyer. If under the provisions of any applicable law or regulation such taxes, duties and other charges are to be paid by Seller, Buyer shall reimburse Seller therefore. If a claim for any such charges against Seller, Seller shall at Buyer’s expense take such action as Buyer may reasonably direct to recover any amount paid by Seller, and shall, if requested by Buyer, permit Buyer in Seller’s name to file a claim or prosecute an action to recover such payment.
(3) Seller shall obtain and pay for any licenses or special documents required by the Netherlands authorities for the performance of the Services.
(4) Buyer shall obtain licenses or special documents not covered in section 1.7.l.(3) above and pay for all costs connected herewith.
(5) In the event that Seller is requested to comply with a requirement of the importing country to deliver any certificate or license, Seller shall endeavor to comply with such request and the costs, if any, to obtain such certificates or licenses shall be for Buyer’s account and Buyer shall promptly reimburse Seller for such costs.
1.8. Assignments
The agreements pertaining to the GTC are for the benefit of and binding upon each of the parties hereto and their respective successors and assignees. The rights and obligations hereunder may not be assigned in whole or in part by either party without the prior written consent of the other party.
1.9. Nondisclosure
Neither Buyer nor Seller shall disclose information furnished under the GTC or any agreement pertaining thereto to any third party without the written consent of the other party, except as required by law. If disclosure is required by law, then the disclosing party shall use its best efforts to limit such disclosure, including a request for confidential treatment or implementing other means reasonably requested by the non-disclosing party. No license under any patent, copyright or whatever other intellectual or industrial property right is granted or implied by Seller exchanging, conveying and/or applying whatever Data or Information pursuant to and/or in connection with the Services.
1.10. Excusable Delay
Seller shall not be responsible for, nor be in default under the GTC on account of any delay in performance due to an excusable delay. Excusable delays are defined as delays due to causes not within Seller’s control including, but not be limited to, acts of God, strikes, labor troubles causing cessation or dislocation of work, inability after due and timely diligence to obtain material or part not of Seller’s own stocks. However, Seller will make every reasonable effort to minimize the consequences of an excusable delay to Buyer.
1.11. Suspension and Termination
(1) In the event of a material breach of an agreement pertaining to the GTC by Buyer, Seller may terminate at any time such agreement without prior written notice of termination, provided that Buyer has received written notice of such breach from Seller and has been afforded at least ten (10) day period to cure such breach. Prior notice of any breach shall not be required, if Buyer is insolvent or if a proceeding is commenced by or against Buyer seeking relief under the laws relating to bankruptcy or insolvency.
(2) Seller reserves the right to suspend delivery of Spares Parts or the performance of any other Service or obligation or to cancel any of Buyer’s outstanding orders in the event any amount due hereunder has not been paid when due, without any liability whatsoever vis-a-vis Buyer for any consequential delay. Any costs incurred by Seller as a result of such suspension or cancellation shall be paid by Buyer. If Seller has suspended performance, then Seller shall, after payment of all amounts due and receipt of adequate assurance of future performance by Buyer, resume delivery of Spares or the rendering of any other Service pursuant to price and delivery conditions prevailing at that time.
1.12. Non-Waiver
The failure of Seller to enforce any of its remedies or to require strict performance of any obligations of Buyer under the GTC or any agreement pertaining thereto shall not constitute a present or future waiver of such remedy or obligation.
1.13. Applicable Law and Arbitration
(1) The GTC and any agreement pertaining thereto shall be governed by and construed and interpreted in accordance with the Netherlands law. The applicability of the (11 april 1980) Vienna Sales Convention is hereby specifically rejected.
(2) With respect to any disputes arising out of or in connection with the GTC or any agreement pertaining thereto, whether based on contract law, negligence or tort, the parties hereby consent to the exclusive jurisdiction of an arbitration procedure in accordance with the Rules of the Arbitration Institute of the Netherlands (arbitrage reglement van het Nederlands Arbitrage Instituut).
The arbitration procedure will take place in Amsterdam, the Netherlands, and be conducted in the English language, unless the parties agree upon another language in writing. The arbitral tribunal shall be composed of one arbitrator, selected in accordance with the Rules of the Arbitration Institute of the Netherlands. The arbitral tribunal shall decide the matter in accordance with the rules of law and not as an “amicable compositeur”. This clause 1.13 (2) is for the benefit of Seller only; accordingly, Seller may bring legal action relating to this GTC or any agreement pertaining thereto in any court in any country (whether arbitral or regular court), including, without any limitation, the territory, in which any property of Buyer is then situated or in any other competent court.
1.14. Indemnity
Buyer shall release, defend, hold harmless and indemnify Seller, Seller’s assignees and each Indemnity thereof, from and against all claims and liabilities, direct and consequential damages, losses and judgments, including costs and expenses incidental thereto, which may be suffered by, accrued against, be charged to or recoverable from Seller, Seller’s assignees or any of their Indemnities for death of or injury to a person or persons, other than indemnities of Seller or Seller’s assignees or for loss of or damage to any property, including any Aircraft, save property of Seller, Seller’s assignees or any of their indemnities arising out of or in any way connected with the performance by Seller, Seller’s assignees or any of their indemnities of Services.
2. Conditions for spare parts supply and component repair and overhaul
2.1. Spare Parts
2.1.1. Purchase Order
Orders for Spare Parts shall be placed by Buyer in writing (‘Purchase Order’) or by e-mail, facsimile or any other (written) instrument confirmed by a Purchase Order, unless parties have agreed in writing to an alternative ordering procedure. Each Purchase Order shall include an order number or specific contract number, part number(s), nomenclature, quantity, material condition and required delivery schedule, as well as detailed forwarding instructions, such as forwarding address, accounting address and the marking required to be put on the packing if such instructions have not been agreed upon or differ from those agreed upon.
2.1.2. Order Acknowledgement
Acceptance by Seller of Buyer’s Purchase Order(s) shall be in a written Order Acknowledgment (‘Order Acknowledgment’). Seller’s Order Acknowledgment(s) shall include Buyer’s order number or specific contract number and, for each part, part number, applicable unit price, extended value and the scheduled delivery date(s). A Purchase Order is not binding upon Seller unless accepted by Seller in accordance with this paragraph.
2.1.3. Purchase Order Fulfillment
In fulfilling Purchase Orders for Spare Parts, Seller reserves the right to make any necessary corrections or changes in part number and nomenclature, or to substitute parts, provided that interchangeability between the Spare Parts is not affected. Seller shall give Buyer prompt written notice of such correction, change or substitution and any effect on price resulting there from. Buyer shall advice Seller in the same prompt manner whether such change of price is acceptable.
2.1.4. Cancellation or Orders
Buyer may cancel a Purchase Order for any Spare Part prior to delivery thereof. Seller may recover any actual damage arising there from in an amount not more than the purchase price of the Spare Parts covered by the canceled Purchase Order. The cancellation charge shall be based upon the costs made by Seller fulfilling the specific Purchase order before cancellation of the Purchase Order by Buyer as well as third party claims in connection with such cancellation. Upon Buyer’s request, Seller shall substantiate such costs.
2.1.5. Delivery
(1) Delivery to Buyer
For delivery of Spare Parts to Buyer the terms as set forth in 1.4 will apply.
(2) Certification
All Spare Parts shall be accompanied by an Authorized Release Certificate or similar document issued by a duly authorized person, unless otherwise indicated prior to purchase or as agreed upon by Buyer prior to delivery.
(3) Title and Risk
(A) Risk of loss of or damage to the Spare Parts supplied by Seller to Buyer shall pass from Seller to Buyer at delivery of the Spare Parts to Buyer in accordance with 1.4.1.
Risk of loss of or damage to Spare Parts rejected by Buyer pursuant to 2.1.8 shall remain with Buyer until such Spare Parts are redelivered to Seller in accordance with 2.1.8.
(B) Seller will convey to Buyer good title to each Spare Part free and clear of all liens, claims, charges and encumbrances upon the latter of (A) delivery of such Spare Parts or (B) receipt of full payment for such Spare Parts, including payment of interest and costs due.
(C) Upon request of Seller and at Buyer’s expense, Buyer shall cooperate in vesting a security interest of first lien valid under applicable law, on Spare Parts supplied or to be supplied by Seller to Buyer hereunder, to secure Seller’s rights with respect to Spare Parts for which Seller has not yet received full payment.
2.1.6 Pricing and Price Revision Seller Parts
Seller reserves the right to revise the prices for Spare Parts from the date of quotation, and if no quotation has been issued from the date of Buyer’s Purchase Order(s), until delivery to Buyer in the following cases:
(1) significant revision in the price charged to Seller by Vendor or Suppliers, such revisions shall be effective immediately after notifying Buyer of such price revisions:
(2) significant error in estimation or expression of any price, which will be effective immediately after notification of Buyer.
2.1.7. General
Any services ancillary to the sale of Spare Parts that are requested by Buyer shall be charged in accordance with Seller’s sales prices prevailing on the date on which such ancillary services are rendered to Buyer.
2.1.8. Acceptance
(1) Within sixty (60) days after receipt by Buyer of any ordered Spare Part (‘Inspection Period’), Buyer shall notify Seller in writing of any alleged nonconformity of the Spare Part with Buyer’s Purchase Order as acknowledged by Seller.
Such notice shall state the grounds for Buyer’s conclusion of nonconformity. For the purpose of this paragraph the day of shipment to Buyer shall be deemed the day of delivery by Seller, unless Buyer proves otherwise.
(2) Upon receipt of such notice, Seller shall without undue delay notify Buyer whether Seller agrees that such nonconformity exists and any corrective procedure which Seller will apply. Upon Seller’s request, Buyer shall return such nonconforming Spare Part to Seller’s Facility in accordance with 2.3.7).
(3) If Seller is not notified by Buyer of any nonconformity within the Inspection Period, Buyer shall be deemed to have accepted the Spare Parts and to have waived all its claims and remedies in respect thereto, except for the contractual warranty provisions.
2.2. Component Repair and Overhaul
2.2.1. Ordering Procedures
For each component sent to Seller for Repair or Overhaul under these conditions Buyer shall place an Order in writing (‘Order’), or by e-mail facsimile or any other (written) instrument, confirmed by an Order, unless parties have agreed in writing to an alternative procedure. Each Order shall include an order number or specific contract number, part number(s), quantity, nomenclature, serial number, number of landings and number of hours consumed since factory-new or last Repair or Overhaul, modifications carried out on the Component, nature of complaint or reason for removal and requested treatment. Buyer shall also indicate in the Order which non-mandatory modifications it wishes Seller to incorporate in the Component at the time of Repair and Overhaul.
2.2.2. Order Acknowledgement
Acceptance by Seller of Buyer’s Order(s) shall be a written order acknowledgment (‘Order Acknowledgment’) within five (5) days after receipt of Buyer’s written Order(s). Seller’s Order Acknowledgment shall include Buyer’s order number or specific contract number and for each Component the part number, serial number and anticipated date of return to Buyer. An Order is not binding upon Seller unless accepted by Seller in accordance with this section 2.2.2.
2.2.3. Order Fulfillment
Seller shall not commence with Repair or Overhaul on any Component unless the relevant Order has been received by Seller. In case no Order is received by Seller after receipt of the Component concerned, Seller shall notify Buyer immediately and Buyer shall provide Seller with the required Order within five (5) days after receipt of Seller’s notice. Seller reserves the right to return the Component to Buyer at Buyer’s expense in case Seller does not receive the required Order within the time stipulated.
2.2.4. Subcontract
Seller reserves the right to subcontract all or part of the Service to be rendered.
2.2.5. Modification Standarts
Seller shall incorporate all mandatory modifications as indicated by the relevant airworthiness authority due al the time of Repair and Overhaul and Buyer will pay for the costs of these mandatory modifications, if applicable. Seller shall inform Buyer of all such modifications incorporated during the Repair and/or Overhaul process.
2.2.6. Beyond Economical Repair (BER)
Components of which Seller estimates that the cost of Repair or Overhaul will exceed eighty per cent (80%) of Seller’s current sales price for Seller parts or Vendor parts of an identical Component shall be considered “beyond economical repair’. Seller shall advise Buyer promptly that a Component is beyond economical repair and Buyer shall provide Seller within seven (7) days after receipt of Seller’s notice with one of the following instructions:
(1) Repair and/or Overhaul at Buyers expense; or
(2) Component to be destroyed by Seller; or
(3) Component to be returned to Buyer at Buyer’s expense without Repair; or
(4) Deliver replacement Unit against current Seller’s Sales prices
In the event a Component is determined by Seller as beyond economical repair, and Buyer notifies Seller with instructions (2) or (3), the costs of the work already performed shall be borne by Buyer.
2.2.7. Shop-Finding Report
A report which provides information on basic observations made during testing, Repair and/or Overhaul of the Component (“Shop-Finding Report”) shall be provided by Seller at no additional charge for the specific Components sent to Seller for Repair or Overhaul after the Repair or Overhaul has taken place and will accompany the Component upon return to Buyer.
2.2.8. Investigation Report Seller is Prepared, at Buyer’s Request, to Issue
A report, which mentions the possible cause of a malfunction and observed damage of a component and provides details of repair shop findings with regards to rectification of said malfunction or sampling requirements (“Investigation Report”), of specific Components sent to Seller for Repair or Overhaul or sampling shall be provided by Seller upon written request thereto from Buyer. Seller shall charge Buyer for the cost of making such a report taking into account the extent of investigation details required by Buyer.
2.2.9. Delivery
(1) Delivery to Seller
All Components shall be delivered to Seller Delivered Duty Paid Seller’s Facility as defined in the Incoterms 1990 or subsequent edition thereof. Consequently Buyer shall bear all costs in the transportation to Seller’s Facility. All Components sent to Seller’s Facility shall be properly packed and labeled and freight shall be prepaid by Buyer.
(2) Delivery to Buyer
For delivery of repaired and/or overhauled Components the terms as set forth in 1.4 of the GTC will apply.
(3) Certification
Repaired and/or overhauled Components shall be accompanied by an Authorized Release Certificate or similar document issued by a duly authorized person.
(4) Risk of repaired and/or overhauled Components
The risk of loss of the Components send to Seller shall at all times remain with Buyer.
2.3. Warranty Conditions for Spare Parts and Repaired and/or Overhauled Components
The following warranty conditions will apply to both Spare Parts and Repaired and/or Overhauled Components except where explicitly otherwise stated in the text.
2.3.1. Warranties
Subject to the exceptions set forth in 2.3.2, Seller warrants that:
(1) all Seller Parts supplied hereunder shall at the time of delivery by Seller be free from:
defects in material and workmanship, unless previously agreed upon by both parties concerned
(2) each Component repaired or overhauled shall at the time of delivery by Seller be free from:
(A) defects in material, and
(B) defects in workmanship involved in the Repair or Overhaul, hereinafter collectively referred to as ‘defects’.
2.3.2. Exceptions
Seller shall be relieved from its warranty obligations under this 2.3 with respect to a defect, if such defect results from Buyer’s failure to operate and maintain the Seller Part/repaired or overhauled Component or the Aircraft, in which the subject Seller Part/repaired or overhauled Component was installed, in accordance with applicable Buyer’s maintenance and operating programs approved by the aviation authorities having jurisdiction and applicable Seller’s written instructions.
2.3.3. Validity of Warranties
With respect to all Seller Part/repaired or overhauled Components the Warranty set forth in 2.3.1 shall be subject to fulfillment of the conditions and the limitations set forth in 2.3.4 through 2.3.1 0 of this 2.3.
2.3.4. Notice and Warranty Periods
Buyer’s remedy and Seller’s obligation and liability under this 2.3, with respect to each defect, are conditioned upon (i) the defect having become apparent to Buyer within the applicable warranty period, and (ii) Seller’s warranty administrator at Seller’s Facility, having received written notice of the defect from Buyer promptly but not later than sixty (60) days after the defect becomes apparent to Buyer. The warranty periods are:
(1) based on OEM warranty conditions for Seller’s Supplied Factory New Parts and Components as to defect in material, workmanship, twelve (12) months or one thousand (1000) flight hours, whichever expired first, and six (6) months or five hundred flight hours, whichever expired first, for Seller’s supplied overhauled, repaired and or new surplus Parts and Components, whichever expires first, after delivery of the Seller Part or Component, and will be calculated pro-rata, based on consumed warranty life.
(2) for repaired or overhauled Components as to defect in replaced / reworked material or workmanship, six (6) months or five hundred (500) flight hours, whichever expired first, after delivery of the repaired or overhauled Component to Buyer and will be calculated pro-rata, based on consumed warranty life.
2.3.5. Return and Notification
Buyer’s remedy and Seller’s obligation and liability under this 2.3, with respect to each defect, are also conditioned upon:
(1) the submission by Buyer to Seller of a complete warranty claim report including all the required written details therein;
(2) reasonable proof that the claimed defect is due to a matter embraced within the warranty set forth in 2.3.1 and that such defect did not result from any act or omission of Buyer including but not limited to those stated in 2.3.2.
(3) the return by Buyer as soon as practicable if so requested by Seller, to Seller’s Facility of the Seller Part/Component claimed to be defective, except when Seller elects to have the non- repairable defective Seller Parts scrapped at Buyer’s facility in accordance with 2.3.8.
Seller shall notify Buyer of the disposition of each such claim.
2.3.6. Remedies
Buyer’s remedy and Seller’s obligation and liability under this 2.3, with respect to such defect, are limited to:
(1) for Seller Parts
(A) As to a defect in material or workmanship,
(i) to the repair of such defect in the Seller Part in which the defect appears, or, at Seller’s option, to the replacement of such Seller Part, with a similar Seller Part free from defect, and
(ii) as to any Seller Parts repaired under the responsibility of Seller or furnished as a replacement by Seller pursuant to A, to the repair of replacement of such Seller Part for any further defect in material or workmanship, provided:
(a) such further defect becomes apparent to Buyer within any unexpired remainder of the warranty period specified in 2.3.4.(2) ; and
(b) Seller’s warranty administrator at Seller’s Facility receives written notice of such further defect from Buyer within sixty (60) days after it becomes apparent to Buyer.
(B) For repaired or overhauled Components: the repair or correction of such defect in the repaired or overhauled Component.
2.3.7. Returnes Items
All repairs, replacements and corrections described in 2.3.6, shall be performed by Seller at its expense at Seller’s Facility, or such other place as may be mutually agreeable, and with reasonable care and dispatch in order that the Seller Part/Component involved will not be kept out of service longer than necessary.
The cost of transportation (in accordance with common industry practices) from Buyer to Seller at Seller’s Facility or such other place as may be mutually agreeable, of any Seller Part/Component claimed to be defective shall be paid by Buyer. Seller shall reimburse Buyer for freight charges incurred by Buyer in connection to the shipment to Seller’s Facility, of any Seller Part/Component determined by Seller to be defective under the terms of this 2.3.
The cost of the return freight charges (in accordance with common industry practices) of any Seller Part/Component determined by Seller to have been defective and repaired or corrected, or any replacement Seller Part to Buyer pursuant to this 2.3 shall be paid by Seller.
Title to and risk of loss of any Seller Part/Component returned by Buyer to Seller shall at all times remain with Buyer, except that
(i) title to and risk of loss of a returned Seller Part shall pass to Seller concurrently with shipment by Seller to Buyer of any Seller Part furnished by Seller to Buyer as a replacement therefore and
(ii) as to loss or damage chargeable to Seller’s gross negligence or willful misconduct according to Netherlands law, provided that in no event Seller shall be liable for loss of use or any other indirect or consequential damage. Upon Seller’s shipment to Buyer of any replacement Seller Part title to and risk of loss of such Seller Part shall pass to Buyer. Under this 2.3.7 the party, which has risk of loss with respect to any Seller Part/Component shall have the responsibility of providing adequate insurance coverage thereof.
2.3.8. Non Repairable Seller Part
Buyer may scrap any defective non-repairable Seller Part at Buyer’s facility, provided that Seller has confirmed that such Seller Part is non-repairable and is not required for investigation by Seller.
2.3.9. Wear and Tear
Normal wear and tear and the need for regular maintenance and Overhaul shall not constitute a defect under this warranty. The warranty periods set forth in 2.3.4 shall not apply to items such as rubber parts, filters, shelf life limited parts or similar items, which Seller demonstrates, are unable to meet such standards because of their ultimate life or function (determined by the state-of-the-art at the time of Seller’s Design). The warranty set forth in this 2.3 shall furthermore not extent to parts delivered by Seller and subsequently modified, overhauled or repaired on Buyer’s behalf without Seller’s written consent.
2.3.10. Applicability of seller’s warranty
(1) It is Seller’s intention that replacement, repair or correction of Seller Parts/Repair or correction of Components claimed by Buyer to be defective be implemented with the least possible delay and to this end any action taken by Seller, prior to completion of its review of Buyer’s warranty claim, shall not prejudice Seller’s right thereafter to dispute the applicability of Seller’s warranty to any item so replaced, repaired or corrected/any Component so repaired or corrected and to recover its reasonable costs and expenses in connection therewith in the event that Seller’s warranty is determined not to apply.
(2) The warranty set forth herein is personal to Buyer and shall not be assigned or transferred in whole or in part except with the prior written consent of Seller.
(3) In the event any part of the provisions of this 2.3 is held ineffective or unenforceable, Seller shall advise Buyer of the implications thereof and the effect on the terms and conditions of this 2.3.
2.3.11. Disclaimer and Release
The warranties, obligations and liabilities of seller and remedies of buyer set forth in this section 2.3 are exclusive and in substitution for, and buyer hereby waives, releases and renounounces all other warranties, obligations and liabilities of seller, seller’s assignees and each indemnite there of and rights, claims and remedies of buyer agains seller, seller’s assignees, or any or their indemnitee, express or implied, arising by law or otherwise, with respect to any nonconformity, defect in or delay in delivery of any spare part, other thing or service delivered or performed, including but not limited to
(i) any implied warranty or merchantability or fitness,
(ii) any implied warranty arising from course or performance, course of dealing or usage of trade,
(iii) any obligation, liability, right, claim or remedy in tort, whether or not arising from negligence of seller, seller’s assignees, or any of their indemnitees, actual or imputed, and
(iiii) any obligation, liability, right, claim or remedy for loss of or damage to any aircraft, Spare parts or other thing, for loss of use, revenue or profit with respect to any aircraft, spare part or other thing or for any other direct, incidental or consequential damages.
3. Conditions for exchange transactions
3.1 Fees
All the transport and custom fees involved with an Exchange Transaction, for both the shipment of the Core Unit and the Exchange Unit, will be borne by Buyer.
3.2 Returning Core Unit
In case of an Exchange Transaction Buyer shall ensure that the Core Unit shall be received by Seller within fifteen (15) calendar days after receipt of the Exchange Unit by Buyer. Buyer shall ship the Core Unit to Seller freight prepaid and accompanied by all applicable completed documents (including but not limited the log card).
3.3 Penalty Fee
In the event Seller has not received the Core Unit accompanied by all applicable completed documents (including but not limited the log card) within the time-period as mentioned under section 3.2., Buyer will incur a penalty fee of USD 60.00 or Euro equivalent per day, starting at the end of a thirty (30) calendar day period following from shipping date, until the day that Seller has received the Core Unit accompanied by all applicable completed documents (including but not limited the log card).
3.4 Missing Parts
In the event any parts found to be missing from the Core Unit, Seller shall invoice Buyer for the value of such missing parts. Buyer herewith agrees to such additional invoicing and beforehand accepts that this will be automatic and without any prior notice from Seller. Once the additional invoice has been processed by Seller, no credit will be granted to Buyer, irrespective of whether the missing parts will be send to Seller at a later date.
3.5 (Additional) Payment Conditions
(1) In case of an Exchange + cost transaction: After teardown and inspection of the received Core Unit by Seller, Seller shall send an invoice to Buyer, accompanied by a copy of the teardown & inspection report. The invoice shall be payable with due observance of the payment terms and conditions of section 1.5.
(2) In the event the returned Core Unit is:
(i) in a different mod standard than the originally delivered unit;
(ii) has suffered from abnormal use, mechanical damage, excessive wear, tear and/or corrosion or;
(iii) has been involved in an accident or incident,
Seller shall invoice Buyer for the additional costs.
(3) Seller will also invoice Buyer for additional costs in the event the returned Core Unit is in a different mod standard than the originally to Buyer delivered unit.
(4) In the event the Core Unit is declared BER, Seller shall invoice Buyer for the difference between the agreed exchange fee and the outright sales price as stated on the written order as “Core charge”. Such invoice shall be payable with due observance of the payment terms and conditions of section 1.5.
3.6 Retention of Title
The Exchange Unit will remain property of Seller until full payment as specified under section 3.5 has been received by Seller.
3.7 Default Interest
Failing to comply with any of the above sections or other applicable provisions of this GTC might result in extra (interest) charges and eventually confiscating of the originally supplied exchange unit(s).
3.8 Additional Security
Seller reserves the right to ask for additional and/or financial securities prior to release of the Exchange Unit(s), In line with Seller’s policy.Koolhaas enables Its clients to concentrate on their core-business.