Article 1 - objective
These terms and conditions set forth herein shall apply to all maintenance services including all services incidental thereto (hereinafter the “Services”) , performed by or on behalf of Cargolux Airlines International S.A. (hereinafter “CV”) as stipulated in the respective Purchase Order or any equivalent signed document (including but not limited to the Annual Service Rate Listing (collectively referred to as the “Agreement”) on any CUSTOMER's aircraft (hereinafter the “Aircraft”) or material at CV`s maintenance facilities located in Sandweiler or at such other facilities which CV may elect (both together hereinafter “CV Facilities”).
Article 2 - standards and procedures
2.1 The Services shall be performed in accordance with:
the Aircraft or manufacturer's specifications and procedures; and
CV's standards and procedures as approved by the relevant Civil Aviation Authorities.
2.2 CV shall perform the Services after the timely receipt of a purchase order or any other written request or authorisation, signed by or on behalf of CUSTOMER and specifying the Services to be performed, and after CV's own acceptance thereof.
2.3 If for any reason a test flight is required, CUSTOMER shall perform it at its own risk and expense.
2.4 All Aircraft and part movements such as delivery acceptance, test and return flights to and from the Facilities, including but not limited to such related costs as crew, fuel, oil, insurance and airport fees will be at CUSTOMER's expense, unless specifically agreed to the contrary in writing.
Article 3 - delivery and redelivery
3.1 CUSTOMER shall be fully responsible for the DDP (INCOTERMS 2010) CV Facilities delivery of components and/or materials to CV at its Facilities and, if applicable, for providing appropriate shipping stands or packing to return CUSTOMER's components.
3.2 Redelivery to CUSTOMER will be Ex-works (INCOTERMS 2010) CV Facilities for air-freighted components.
3.3 CUSTOMER shall have the full responsibility and shall bear all risks, expenses and handling charges related to the transportation of the equipment to and from the Ex-works (INCOTERMS 2010) CV Facilities. These expenses and charges shall include without limitation packing, insurance, shipping, any brokerage and any related customs fees.
3.4 In case of road or rail transportation, CUSTOMER shall have the full responsibility and shall bear all risks, expenses and handling charges related to the transportation of the equipment to and from CV Facilities, where the equipment is to be repaired or is located. These expenses and charges shall include packing, insurance, shipping, any brokerage and any related customs fees.
Cargolux Maintenance Centre
1, rue de Luxembourg
L – 5230 Sandweiler
Attn. Material Control Department
3.6 In order to clear through customs, each shipment to CV shall be accompanied by the relevant documentation: airway bill, shipping invoice/ work order, serviceable/ unserviceable tag and warranty claim if applicable.
3.7 When an Aircraft is delivered to CV, the risk of loss or damage to that Aircraft will remain with the CUSTOMER.
Article 4 - subcontracting
If CV in its own discretionary judgement cannot perform the Services (in whole or in part) requested by CUSTOMER without unreasonable burden, CV is entitled to subcontract on behalf of CUSTOMER such part of the Services to the respective manufacturer, his licensee or another suitable party, provided that CV, notwithstanding such subcontracting, shall remain primarily responsible for providing the Services under this Agreement.
CV will invoice CUSTOMER for subcontracted work according to the conditions set forth in This Agreement.
Article 5 - warranty
5.1 CV warrants that all Services covered under the Agreement will be performed in a workmanlike manner and on the basis of approved airline and manufacturer’s standards and practices acceptable to the relevant Civil Aviation Authority.
CUSTOMER`s sole remedy under this warranty shall be expressly and exclusively limited to CV's obligation to remedy any defect free of charge, provided a detailed claim is raised within six (6) months (or such longer period as may be provided in any warranty provided by the relevant CV subcontractor) following the completionof Services. Such remedy shall be performed by CV itself, or, occasionally, by a mutually agreed subcontractor.
CUSTOMER shall notify CV of the discovery promptly in writing, but in any event no later than seven (7) days following the day such non-conformity or defect in CV's workmanship in performing the Services has become apparent. CV is entitled to disregard any late notifications and shall, in such case, also be discharged from any product liability.
The extent of CV's liability hereunder as to any non-conformity or defect in CV` s workmanship is limited to the rectification of such non-conformity or defect. Notwithstanding anything else in this Agreement, CV shall not incur any liability or obligation as a result of any loss of opportunity, any loss of anticipated savings or lost profits, any loss of production, any loss of business, loss of revenues, harm to business or business reputation or any indirect, incidental, collateral, special, punitive or consequential loss whether or not foreseeable, and whether arising in contract, tort (including active, passive or imputed negligence), strict liability or otherwise. Normal wear and tear and the need for regular overhaul shall not constitute a defect under this warranty.
5.2 Exclusions / limitations
5.2.1 Any and all material which was not manufactured, or work which was not performed by CV or its subcontractors are excluded of any warranty.
5.2.2 The warranty for work performed by a subcontractor is limited to the warranty given by such subcontractor.
5.2.3 Warranty is excluded if an interim repair was performed at CUSTOMER's special request.
5.2.4 Warranty is excluded if any defect arose out from or in connection with any work, installation, operations, repair, maintenance, refurbishment or rectification carried out by anyone other than CV or its subcontractors and without CV's prior written consent.
5.2.5 Aircraft, powerplants or components that have been inspected and/or tested at CV Facilities and found in good order, but which have not been repaired or replaced by CV or its subcontractors are excluded from warranty.
5.2.6 CV will have no warranty liability in respect of any Aircraft or part that has:
not been stored, installed, operated or maintained (other than directly by CV) in accordance with the relevant manuals, operating procedures or other written instructions, including instructions on life limitations; or
been repaired or altered in such a way as to impair its safety, operation, efficiency or design features, or has been repaired or altered by a facility other than those specifically approved by CV in writing; or
been subject to misuse, negligence, accident (in each case, other than directly by CV); or
been damaged by foreign objects; or
been subjected to acts of war, rebellion, seizure or any other defect or cause not within the control of CV.
5.2.7 Warranty is excluded if the material is not returned promptly to CV Facility, freight prepaid, after notification of defects has been given to CV and corrective work at CV Facility is required (unless CV has authorised in writing that such work may be performed at another place).
5.3 CUSTOMER’S ENTITLEMENT TO THE WARRANTIES AND ALL OTHER RIGHTS AND PRIVILEGES GRANTED BY THIS AGREEMENT, ARE IN LIEU OF AND TO THE EXCLUSION OF ANY OTHER RIGHT OR CAUSE IN ACTION IN CONTRACT (INCLUDING NEGLIGENT BREACH OF CONTRACT), TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY WHETHER STRICT OR OTHERWISE) OR UNDER STATUTE OR ANY OTHER LEGALLY RECOGNISED CAUSE OF ACTION OR LIABILITY WHATSOEVER.
Article 6 - charges
6.1 CV will charge CUSTOMER for services provided in accordance with Annual Service Rate listing or as agreed in writing by both parties.
6.2 In the case of performance of Aircraft Maintenance, CV shall issue an invoice to CUSTOMER for the pre-agreed fixed cost amount or on a time and material basis. CUSTOMER shall settle such invoice prior to the redelivery of the Aircraft or material. CV will thereafter submit to CUSTOMER a final invoice for all other services which are outside of such fixed cost amount, which shall be settled by CUSTOMER within thirty (30) days after the date of such invoice.
6.3 CV will charge CUSTOMER for materials and spares supplied by CV (and not provided by the CUSTOMER), which are required for the performance of the Services. Any material or spares which are made available to CV by CUSTOMER pursuant to this Agreement, shall be made available for CUSTOMER`s own account and without any charge to CV.
Article 7 - terms of payments
7.1 All payments shall be made by CUSTOMER to CV within thirty (30) days from date of invoice into CV's bank accounts as indicated on the invoice or any shorter period if indicated on the quote or invoice.
7.2 All invoices of CV shall be considered accepted and approved by CUSTOMER, unless notice to the contrary is given to CV in writing within fifteen (15) days after the date of such invoice. Complaints shall cause no postponement of CUSTOMER`s obligation to pay the that part of invoice to which CUSTOMER has not rejected or raised any complaint.
7.3 Interest on late (undisputed) payments will be charged at 1 % per month, and shall accrue automatically without there being a necessity for any demand or summons.
7.4 The ownership of any material connected with the Services or any material received from CUSTOMER and stored in CV Facilities (hereafter collectively referred to as the “Material”) shall remain with CV, which reserve the right to dispose of the Material until payment in full for all the Services has been received by it in accordance with the terms of this Agreement. If such payment is overdue in whole or in part CV may (without prejudice to any of its rights) recover or resell the Material or any of it. If any of the Materials are incorporated in or used as material for other goods before payment the property in the whole of such other goods shall be and remain with CV until such payment has been made or the other goods have been sold and all CV’s rights hereunder in the products shall extend to those other goods.
Article 8 - cancellation of service
If either Party refuses, neglects or fails to perform, observe or keep any of the covenants, agreements, terms or conditions contained herein in, and such refusal, neglect or failure continues for a period of ten (10) days following written notice of one of the Parties thereof, the other Party will have the right, in addition to any other rights and remedies it may have pursuant this Agreement or law, to terminate the Agreement with immediate effect upon written notice served by registered mail. Such notice shall specify the cause upon which the termination is based.
Article 9 - liability and insurance
9.1.1 CUSTOMER shall indemnify CV, its personnel and its subcontractors for any damage to or loss of CUSTOMER` s Aircraft, of any CUSTOMER` s and/or third party property, or injury or death of, or any other damage sustained by CUSTOMER, his personnel, agents or third parties during or after, due to or in connection with, or in consequence of the performance or non-performance of work under this Agreement, unless caused by wilful misconduct or gross negligence of CV, its personnel or its subcontractors
9.1.2 Regardless of the above, neither Party, including its personnel and its subcontractors, shall be liable for any indirect or consequential damages.
9.2.1 CUSTOMER agrees to effect and maintain in full force and effect in respect of the Aircraft:
hull and all risk - including war risk - insurance of loss and damage, whilst flying or on the ground
all risks property insurance on engines and parts being not installed on the Aircraft as well as items or parts provided by CV which are leased or loaned to CUSTOMER.
If a lease or a loan is part of this Agreement CUSTOMER will provide CV with a certificate of insurance stating that CV will be the sole loss payee in case of damage or loss of the loaned or leased items from CV whether or not such damage or loss is caused by the negligence of CUSTOMER.
Aircraft third party contractual liability, product liability, property damage, passenger, baggage, cargo, and mail, and airline general third party legal liability including War Risk and Allied Perils for a CSL of not less than USD 750.000.000 per any one occurrence and in the annual aggregate in respect of product liability and third party war risks.
9.2.2 The insurance:
Shall contain a waiver of subrogation in favour of CV, its personnel, and its subcontractors.
Shall contain, in relation to any third party liability, standard cross liability provisions and such provisions shall be primary without the right of contribution.
Shall be effected and maintained with insurers of recognized responsibility and reputation
Shall name CV, its personnel, and its subcontractors as additional insured for their respective interests
Shall contain a standard breach of warranty clause in favour of CV.
Shall provide a thirty-day (seven days or such lesser period applicable in the aviation market, in the case of war risks) notice period for cancellation - clause in favour of CV.
9.2.3 CUSTOMER shall provide a certificate of insurance evidencing the above coverage before the scheduled performance of this Agreement.
9.2.4 Both Parties shall maintain adequate insurance for their officers, agents, servants and employees taking part in or being involved in the performance of this Agreement.
Article 10 - force majeure
CV, its associates, servants, agents and personnel shall not be liable for delay or non-performance of obligations set forth in this Agreement nor for any loss, damage, claim or expense whatsoever which are caused by an event of Force Majeure, including but not limited to including but not limited to acts of God or public enemy, war, civil war, war-like operations, insurrections or riots, fires, floods, explosions, earthquakes or serious accidents, epidemics or quarantine, any act of Government, labour disputes, restrictive practices strikes, lockouts, failure of machinery or transport (whether involving CV's employees or persons or companies upon whom CV may be relying for the performance of its obligations hereunder) or any event beyond the reasonable control of CV.
Article 11 - notices and communication
All notices, requests, demands and other communications required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given and made if (i) sent by registered or certified mail, courier, return receipt or other acknowledgement of delivery obtained or (ii) sent by electronic mail without any receipt of a delivery failure notice by the sender, duly addressed to the Parties as follows:
IF TO CV
Maintenance Sales Department
CARGOLUX AIRLINES INT. S.A.
Grand Duchy of Luxembourg
Attn. Maintenance Sales Department
Phone: (352) 4211 -3284 or -3330
IF TO CUSTOMER: such address and addressees mentioned in the Agreement.
Article 12 - applicable law and jurisdiction
The Agreement shall be governed by the laws of the Grand Duchy of Luxembourg.
Any disputes arising under the Agreement shall be submitted to the non-exclusive jurisdiction of the competent courts of the Grand Duchy of Luxembourg.
Article 13 - end user compliance
CUSTOMER certify and hereby agrees that it shall comply with the below undertakings in relation to any and all parts, spare parts or any goods of any kind ordered, purchased by CUSTOMER to CV or installed by CV on CUSTOMER aircraft in connection with this Agreement (the “Goods”):
CUSTOMER certify that the Goods will not be re-sold or re-exported contrary to the rules and regulations applicable to controls of exports, dual-use goods and/or any sanctions and embargoes issued by United Nations, United States, the European Union (in particular, but not limited to, Regulation 428/2009) and any other country or territory which could claim jurisdiction on this matter.
In particular, CUSTOMER will not knowingly supply, sell, export, transfer the ownership or the operational control of the Goods directly or indirectly to any entity or person registered in Iran, Syria, Sudan, North Korea, Yemen, Sudan, Somalia or Libya or to any entity listed, or owned or otherwise controlled by such entity, on any US, EU, UN (or any other country or territory which could claim jurisdiction on this matter) denied party lists, including but not limited to United States Department of Treasury; Office of Foreign Assets Control (OFAC) list of Specially Designated Nationals (SDN) and the US Bureau of Industry and Security’s (BIS).
CUSTOMER further certify that the Goods will be used by us and/or our customers in the frame of our operations and will not be used for any other purpose, in particular connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be re-exported or otherwise re-sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; and that the Goods, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle activity.
CUSTOMER further confirm that the Goods will not be sold, exported, transferred or diverted to any military end-user in Crimea, China or Russia.
Article 14 - taxes
CUSTOMER shall hold CV harmless from any and all liability for taxes, duties, fees or other assessments (including the amount of interest and penalties in connection thereto), imposed by any government or other authority relating to this Agreement, except for taxes levied or assessed by the Luxembourg government on CV within the scope of this Agreement, including taxes on CV’s income and capital gains.
Article 15 - miscellaneous
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Rights and remedies under this Agreement are cumulative and do not exclude any rights or remedies provided by law or otherwise.
In the event of a conflict, the rights and remedies provided by this Agreement prevail.
No provision of this Agreement shall be deemed unenforceable if it is subject to an interpretation that would render it enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is unenforceable, in whole or in part, (a) such a finding will not disturb the validity and enforceability of the remaining provisions of this Agreement, and (b) the court shall have the authority to modify and/or "blue pencil" this Agreement in order to render it enforceable and to effect the original intent of the Parties to the fullest extent permitted by law.
A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
CV reserves the right to change these terms and conditions at any time without prior notice.