| 1.1 All and any offers and orders shall be governed solely by the following General Terms and Conditions of LTAA. Offers submitted by LTAA shall be without obligation. The purchase orders shall become binding only on written confirmation by LTAA.
1.2 Any additional performance which LTAA considers necessary during performance of the order may be executed without explicit consent and separately invoiced, including the cost of any consequently required overtime, if obtaining such consent would have led to interruption of the work and provided that the additional performance does not exceed 20% of the order value.
1.3 The work performed by LTAA shall be examined, inspected and accepted pursuant to the LTAA Maintenance Organization Exposition (MOE) which has been approved by the German Civil Aviation Authority.
1.4 Unless the parties have agreed otherwise in writing, the prices specified in the LTAA price list as valid at the time of performance shall apply. Invoices shall be issued in Euro. 2.1 In view of the complexity of the technical performance involved, any delivery periods and dates stipulated by LTAA shall be only approximate and without obligation, unless such periods and dates have been expressly specified by us in writing as binding. All and any dimensions, weights, illustrations and drawings and other documents provided by LTAA in connection with the offers shall be deemed approximate only, unless expressly stipulated as binding.
2.2 LTAA shall advise the Operator immediately of any substantial delays in delivery.
2.3 Should LTAA default on delivery, the Operator shall grant a reasonable extension. Should LTAA fail to deliver within that time, the Operator shall be entitled to withdraw from the contract. The foregoing provision shall not apply if the delay has been caused by force major or circumstances beyond the control of LTAA (e.g. strike, non-delivery from subcontractors or extension of the scope of performance by the Operator). No further claims whatsoever shall be accepted. 3.1 Transport of ordered items to LTAA or to the plant where the work is to be performed shall be duties delivery unpaid (DDU, Incoterms 2000) at the risk of the Operator. Return transport and packaging shall be at the due discretion of but without liability for LTAA ex works (EXW, Incoterms 2000). The type of packaging, the choice of transport route and means of transport shall be at the discretion of LTAA, unless the parties have reached a written agreement to the contrary.
3.2 Liability for damage and/or loss shall be governed solely by Art. 8 of these General Terms and Conditions. In order to find the most economical solution LTAA shall be entitled to subcontract maintenance in total or partially to any other EASA-approved maintenance facility. LTAA shall also be entitled to subcontract maintenance to other maintenance facilities provided that LTAA's quality assurance system is extended to such facility. In case of subcontracting an entire Work Scope, LTAA will obtain approval from the Operator prior to the work being subcontracted.
5.1 LTAA will notify Operator after the proper performance of the services or after termination of the contract and will request Operator to pick up the subject matter. If Operator fails to comply with that request within one week after having received that notice, costs and risk of storage shall then pass to the Operator. Should there be a delay in shipping due to circumstances within the Operator’s control, the Operator shall be charged for the storage costs at third parties and storage costs at LTAA as from the 14th day following the date of notification of readiness for shipping; these charges shall be calculated as 1% of the invoice amount per month as standard damages, but a minimum of € 500.00 per month. The Operator reserves the right to prove that the damages sustained are lower than the standard damages.
5.2 LTAA guarantees that the work shall be performed pursuant to generally accepted airline standards. In response to legitimate notification of a defect during or after acceptance of the ordered item, the Operator shall be entitled to demand rectification. In that case, the Operator’s rights shall be restricted solely to LTAA’s obligation to eliminate the defect on the worked parts free of charge after recognition of the complaint or to have the defect eliminated by a third party at no cost to the Operator. All repairs or rectification of defects shall be performed at Alzey works unless the parties have reached a written agreement to the contrary.
Should LTAA’s attempts to rectify the defect fail on three successive occasions, the Operator shall be entitled to reduce the invoice amount in accordance with the proportion of the failed rectification.
5.3 LTAA shall accept no legal liability in any of the following cases:
5.3.1 for parts or materials not produced by LTAA or for work not carried out by LTAA; any guarantee claims against manufacturers or sub-contractors shall be transferred from LTAA to the Operator; if the Operator is unable to obtain any rework from LTAA’s sub-contractor or supplier through no fault of his own, LTAA shall carry out this work under the guarantee terms stated in 5.2 provided the claim is raised within the ambits of 5.3.2 to 5.5.
5.3.2 for defective parts on which any change, overhaul, or repair has been carried out in the meantime by other parties outside LTAA unless the Operator can demonstrate that the defect has been caused by LTAA;5.3.3 for repairs provisionally carried out at the Operator’s request unless the Operator can demonstrate that the defect is attributable to any defective product or service from LTAA;
5.3.4 for work in relation to which the guarantee claim has not been raised within 12 months or 1,000 operating hours since final inspection and acceptance, whichever of the two should arrive first.
5.3.5 for work in relation to which the guarantee claim has not been raised promptly upon discovery of the damage or defect and in no case later than two weeks thereafter in the form of a notification, and within four weeks after the damage occurred or defect was discovered in the form of a detailed written report (exclusion period);
5.3.6 for damaged parts that are not returned to LTAA within four weeks of notification (exclusion period);
5.3.7 for any circumstances whatever that lie outside the reasonable range of influence of LTAA (e.g. but not limited to FOD) or if the subject matter was damaged by the elements or similar external influence;
5.3.8 for parts or material that the Operator has stored, handled, or operated in any other way than in accordance with the manufacturer’s recommendations.
5.4 LTAA shall not be liable for consequential damage.
LTAA shall not be obliged to compensate for consequential damage caused by a defect unless LTAA had given a warranty of quality which was expressly intended to protect the Operator from the consequential damage sustained.
5.5 Liability for all damages shall be limited to the sum of the total invoice amount. 6.1 Operator will pay to LTAA fifty percent (50 %) of the price mentioned in the cost estimate before Delivery and fifty percent (50 %) before the Redelivery date All costs of money transfer, especially fees charged by a bank, shall be paid by Operator. In the event that payment of any amount due has not been received by LTAA on the Due Date of the respective invoice, a late payment charge of one percent (1%) of the unpaid amount per month shall apply. Furthermore LTAA is entitled to charge Operator € 25,00 for each reminder of payment for past-due invoices in addition to any other compensation for damage.
6.2 Any complaints with regard to invoices must be filed in writing and submitted no later than within 30 days of receipt of invoice (preclusive period).
6.3 Unless the parties have agreed on a provision to the contrary, LTAA shall be entitled to demand security at any time in the form of an irrevocable documentary letter of credit for repair work which has already been performed and/or is to be performed after the order. If LTAA fails to receive the due and proper letter of credit within 10 days of issuing such a demand, LTAA shall be entitled to withdraw from the contract, to charge the customer for all and any performance rendered up to that date and to demand compensation.
6.4 Unless the parties have agreed otherwise in writing, payments shall be effected in Euro to one of the accounts specified in the invoice.
6.5 The Operator shall not be entitled to offset against his own claims or to exercise a retaining lien unless his counterclaims are undisputed or have been declared final by a court of law. 7.1 LTAA shall retain title to all equipment, accessories and spare parts supplied by LTAA until all invoices arising from the business relationship have been paid in full.
The parties agree that even as a result of installation, the spare parts owned by LTAA shall not become integral parts of the aircraft or engine. At the request of Operator LTAA shall assign ownership rights to Operator also before that time if and as far as the value of the securities which LTAA will hold thereafter exceeds the total claim against Operator by more than 20 percent (20%).
7.2 In case of nonpayment by Operator, LTAA shall have by virtue of its Services rendered a contractual right of retention and a contractual lien over the subject matter in its custody as well as the right to repossess any property of LTAA in Operator’s possession. These rights as well as a set-off right may also be claimed for Services rendered or material supplied previously. LTAA also has the right to immediately stop current Services until payments due have been remitted.
7.3 The right of retention and the lien as well as a set-off-right may also be applied on account of claims from previously performed orders and/or on account of claims from business relationship with Deutsche Lufthansa AG and/or any of its affiliates. 8.1 LTAA, its legal representatives, employees or agents employed in performance of its obligations shall not be liable for damage sustained vis-à-vis the Operator. The Operator shall indemnify LTAA, its legal representatives, employees or agents employed in performance of its obligations for all and any such claims filed by third parties in connection with this agreement and the work performed. The foregoing indemnity shall not apply in cases of intent or gross negligence or to damage arising from injury to life, limb or health insofar as LTAA is at fault.
The same shall apply in cases of initial inability to perform or impossibility within the control of LTAA and in case of faults which were concealed with intent to deceive or the absence of which has been guaranteed by LTAA; also in cases in which the Product Liability Act prescribes liability for personal injury or property damage to privately used objects owing to faults in the delivered item.
8.2 Quality defects and defects in title shall become statute-barred after a period of 12 months except for products with a life cycle of less than 12 months. For those products, quality defects and defects in title shall become statute-barred after half the customary life cycle. This shall not apply in cases where longer periods are compulsorily prescribed by law and in cases where LTAA, its legal representatives, employees or agents employed in performance of its duties are guilty of intent or gross negligence. Nor shall it apply in case of damages resulting from injury to life, limb or health insofar as LTAA. is at fault. The same shall apply in case of initial inability to perform or impossibility within the control of LTAA. and in case of faults which were concealed with intent to deceive or the absence of which has been guaranteed by LTAA; also in cases in which the Product Liability Act prescribes liability for personal injury or property damage to privately used objects owing to faults in the delivered item.
8.3 No claims for compensation or reimbursement of expenses by the Operator shall be accepted irrespective of the legal reasons, in particular claims for infringement of obligations arising from the contract and for tort. The foregoing shall not apply in cases where liability is compulsory, e.g. pursuant to the Product Liability Act; in cases of intent, gross negligence, injury to life, limb or health, owing to the infringement of essential contractual obligations. Claims for compensation owing to the infringement of essential contractual obligations shall, however, be restricted to the typical foreseeable damage in such contracts, or a maximum of the total invoice amount, except liability is based on intent or gross negligence or owing to injury to life, limb or health. The foregoing provision shall not involve any shift of the onus of proof to the detriment of the Operator.
Insofar as the Operator is entitled to claim compensation pursuant to the foregoing provisions, these claims shall become statute-barred on expiry of the period of limitations which applies to defects in quality and title. Claims for compensation based on the Product Liability Act shall be governed by the statutory limitation periods.
8.4 The provisions of the foregoing 8.1 to 8.3 shall apply mutatis mutandis, excluding all other claims by the Operator, if the delivered item cannot be used by the Operator in conformance with the provisions of the contract for reasons for which LTAA. is to blame as a consequence of non-performance or faulty performance of proposals and consultations prior to or after conclusion of contract and other secondary contractual obligations, in particular operations for instruction and maintenance of the delivered item. 9.1 Operator agrees to effect and maintain in full force the following insurances:
- A Hull All Risks Insurance as well as a Risk All Property Insurance containing a waiver of subrogation and a waiver of any transfer of rights of recourse, in favour of LTAA, its personnel and its subcontractors.
- A comprehensive Legal Liability Insurance (including an aircraft third party liability insurance) including LTAA, its personnel and its subcontractors as additional insured parties.
LTAA reserves the right to retain the performance of the services ordered until Operator has delivered proof of the before mentioned insurances.
9.2 If Customer has ordered services from LTAA on behalf of a third party, Customer guarantees that such third party effects and maintains insurances with the above defined coverage. 10.1 All warranty claims of Operator against a manufacturer of parts will be assigned to LTAA.
10.2 For all shop and on-wing events performed by LTAA, possible warranties from the respective manufacturer or vendor will be claimed on behalf of Operator and expected warranties will be deducted from the invoice. In case the warranty claims assigned from Operator to LTAA are rejected by the OEM, Operator shall pay the related repair and/or parts cost. 11.1 The parties agree that all contractual and non-contractual disputes shall be settled before the courts of law which have sole national and international jurisdiction at Frankfurt/Main, Germany. In individual cases, however, LTAA shall be entitled to file an action at the purchaser’s domicile or before other courts of law which have jurisdiction owing to domestic or foreign law.
11.2 Place of performance for this agreement shall be the plant of LTAA or the place at which performance is rendered.
11.3 This agreement shall be governed by and interpreted in accordance with the laws of Germany excluding Germany’s conflict of laws rules; the Convention on the International Sale of Goods (CISG) shall not apply.
11.4 Operator agrees that LTAA may assign its positions under this Agreement with any of its rights and obligations in total or in part to a company directly or indirectly controlled by Deutsche Lufthansa AG. Operator will be informed about such assignment duly in advance. The assignee will perform the Services under this Agreement in the quality and standards and in accordance with the General Terms and Conditions laid down herein. LTAA shall become owner of parts which have been replaced by other parts in the course of performance.
The parties agree that in the event that any of the foregoing provisions should prove null or void, the remaining provisions shall remain fully in force.
These General Terms and Conditions are applicable to all purchase orders placed by the Operator. In case of any inconsistency or conflict between the terms of a purchase order and the provisions of these General Terms and Conditions, such deviating provision will prevail only if agreed between the Parties in writing. These General Terms and Conditions in connection with the purchase order is the entire understanding between the Parties. All and any addenda, amendments, changes and/or subsidiary agreements must be in writing in order to be valid. Any conflicting General Terms and Conditions of the Operator shall not be applicable.
15.1 The Parties will treat any offer and respective purchase order itself as well as individual provisions contained therein as strictly confidential.
15.2 The disclosure of any documents, data and other information in connection with this Agreement will not be construed as a grant or transfer of any rights, in particular but not limited to intellectual and industrial property rights. |
