General terms & conditions of business for the servicing and maintenance of aeronautical equipment
ATS Aviation Technik Saar GmbH – DE.145.0391
1. General terms and conditions
1.1 Orders placed with us for the performance of works to aeronautical equipment shall be subject exclusively to our terms and conditions. Such pre-printed terms of business as may be submitted to us by the client shall be regarded as accepted by us only when confirmed by us in writing. An express repudiation of such terms by us shall not be necessary.
1.2 Agreements between the client and the contractor shall be binding on the said parties only where the order has been confirmed by us in writing. Orders placed telegraphically, telephonically or verbally shall however be accepted and interpreted at the client’s risk and on the client’s account. The issue of an order confirmation shall serve as the client’s acceptance.
1.3 Orders shall without further special approval by the client include authority for test flights, engine tests or other works necessary to investigate the subject of the order. The client declares himself to be in agreement for additional works which prove necessary during the processing of the order to be carried out without special approval by the client. Furthermore, any overtime working may be billed separately insofar as no binding estimate of costs shall have been given pursuant to Section 2.1.
1.4 We are entitled to have works for which orders have been placed with us carried out by other companies deemed by us to be suitable without notifying the client thereof.
2. Estimates of costs:
2.1 Estimates of costs shall be binding only when given in writing and when expressly defined as binding in the written text. On principle, however, they shall be valid for 3 months only from date of issue. Should we consider it necessary for additional works to be carried out, the final binding estimate total may be exceeded by up to 15% without consultation. Particular works and supplies required for the submission of an estimate of costs, e.g. fault detection, etc., may be billed to the client even where the works proposed in the estimate of costs are not executed, or are executed only in modified form.
3.1 Prices for labour, individual parts used, materials and extras shall be specified separately both in the estimate of costs and in the invoice.
3.2 Where a fixed price is agreed at the time of order, this alone will be billed.
3.3 Where parts or equipment are replaced, an exchange price will be billed subject to the proviso that the part or equipment item is complete and exhibits no damage attributable to force.
3.4 The right is reserved to correct charges even after these have been invoiced. Any correction, and likewise any objection to the invoice on the part of the client, must be made in writing within a maximum of 10 days following the date of issue of the invoice.
4. Terms of payment:
4.1 Payment for performances shall be due upon receipt of the performance or subject of the order, however no later than within 2 weeks of the date of issue of an interim or final invoice and must on principle be made without discount or deductions. In the event of default, interest shall be payable at a rate at least 2.5% above the respective discount rate of the “Deutsche Bundesbank”. Any set-off against counterclaims is expressly excluded.
4.2 We are entitled to demand an advance payment of at least 50%, but extending also up to the full amount of the anticipated invoice value. No interest shall be payable.
5.1 We are obliged to comply with agreed binding delivery deadlines, but only where these have been expressly designated as binding by us in writing. Nevertheless even in such cases, should the extent of the works increase in comparison with the original order, the delivery deadline shall be extended accordingly.
5.2 We shall endeavour wherever possible to comply with completion dates, even where these are not binding. Nevertheless, should the extent of the works increase in comparison with the original order, the delivery deadline shall be extended accordingly.
5.3 Where delivery deadlines have been accepted by us as binding, in the event of non-compliance with the same we shall be obliged to compensate the client for loss or damage resulting from the said non-compliance only where we or our employees have negligently failed to comply with the deadline. We shall be under no obligation to make compensation in cases in which we have been unable to comply with the completion date as a result of force majeure, non-arrival of supplies, non-issuance of official approvals or similar. In the event of appreciable delay we shall notify the client.
6.1 The subject of the order shall be regarded as accepted upon handover and receipt without objection or complaint. The handover shall on principle take place either at our works or at a works designated by us.
6.2 Should the client desire delivery of the subject of the order, this shall take place on the client’s account and at the client’s risk.
6.3 Should the client default in accepting the subject of the order, we may charge the usual parking and storage fees. Any necessary insurance cover arranged in the client’s interest shall be at the client’s expense. The client shall be deemed to be in default of acceptance if the client does not within one week following notification of completion or the issuance of an interim or final invoice collect the subject of the order and settle the invoice.
6.4 Should the subject of the order be an aircraft, the usual parking or storage fees may be charged from the point in time of parking or storage onwards, at the respectively applicable airport prices.
6.5 Should the client default on acceptance, we shall have no liability for loss or damage of whatever kind, including such as may occur due to our own negligence or the negligence of our personnel.
7.1 Following acceptance of the subject of the order, all guarantee claims shall be excluded in respect of both evident and concealed defects.
7.2 Insofar as a guarantee shall be expressly recognised by us and moreover to the extent that any guarantee shall be contemplated, Figure 7.1 notwithstanding, the following shall apply:
7.3 Likewise in respect of 7.2, guarantee cover shall be expressly and in all cases excluded where defect reports have not been received by us after 20 flying hours, but within a maximum of 4 weeks following acceptance.
7.4 The guarantee obligation shall likewise lapse if defects are not reported to us forthwith following detection, with a precise written description.
7.5 Furthermore, the guarantee obligation shall lapse in the event that the works or items which are the subject of the claim have meanwhile been modified or repaired by another works, on the client’s own account or on account of a third party.
7.6 Our guarantee shall be limited to an obligation to eliminate the defect at our works only. No more extensive guarantee shall apply, nor any obligation to make compensation.
7.7 Guarantees in respect of parts and equipment can be accepted only insofar as they comply with the terms and conditions of the respective suppliers. Any guarantee or warranty benefits granted by suppliers will be passed on to the client without mark-up. However, the transport risk, the costs thereof and the costs of installation and dismantling as well as processing shall be borne by the client.
7.8 A guarantee in respect of temporary repairs carried out at the request of the client and in respect of third-party performances is in all cases excluded.
8. Right of retention and lien:
8.1 In consequence of our claims arising from the order, we have a right of retention in respect of all performances, also a contractual right of lien over property which has come into our possession as a result of the order. The right of retention and the contractual right of lien may also be asserted in respect of claims arising from previous performances or other claims. It is likewise agreed that a right of retention and a contractual right of lien shall exist in the event that other items which are the property of the client are brought to us at a later time whilst claims arising from the business relationship are still outstanding.
8.2 Should we make use of our right to dispose of property over which we have a lien, a written notification sent to the last known address of the client shall be regarded as sufficient warning of the impending sale. Furthermore, we shall be entitled to freely sell the property in our possession at any time and at any place deemed by us to be suitable either on one occasion or gradually to our satisfaction, without the need to acquire executable title, to observe the regulations governing execution or to comply with a period of notice. In particular §§ 1237, Sentence 2 and 1238 BGB [German Civil Code] shall not apply. There shall be no requirement to give prior warning.
9. Reservation of title:
9.1 We reserve title to the goods supplied by us and to such new products as may be created through the processing of the supplied goods until such time as the monies due to us are paid in full and any balance on the client’s account resulting from the transaction has been settled.
9.2 Should our property through combination, amalgamation or processing have been joined with other items, we shall become co-owner of the said other items with which it has been joined in the ratio of the respective values.
9.3 The client may dispose of the goods supplied and the items created through the processing thereof only by way of a due and proper business transaction. The client hereby assigns to us as security all claims accruing from the said disposal or on other legal grounds. The client shall be entitled to collect the assigned receivables provided that payment commitments due to us are fulfilled in accordance with contract. Should this not be the case, we shall be entitled to advise the third-party purchaser of the assignment and to ourselves collect the receivables. Attachments by third parties of goods to which title is reserved or of assigned claims must be notified to us immediately. As soon as and to the extent that claims due to us are payable, the client must remit to us the sums collected in respect of the claims assigned to us. Insofar as the client fails to fulfil this obligation, the sums collected shall nevertheless be due to us and must be kept separately.
9.4 Unless otherwise agreed at the time of order, parts which have been replaced shall become our property.
10.1 We accept no liability for damage to or loss of property or parts thereof handed over to us for processing, unless occasioned by a wilful act or gross negligence on the part of our personnel.
10.2 Unless otherwise specified in these terms and conditions, our liability for damage to the property which is the subject of an order or to parts thereof shall be restricted to the repair thereof. Should a repair in our opinion or in the opinion of an expert recognised by both parties be impossible or entail unreasonably high costs, our liability shall be restricted to compensation for the value of the property or damaged parts on the day the damage was suffered. This provision shall similarly apply in the event of the total loss of the property which is the subject of the order, or of the total loss of parts thereof.
10.3 We shall have failed to exercise our duty of care only in the event that an unsuitable person shall have been charged with carrying out test flights, engine tests or other works necessary to investigate the subject of the order.
10.4 Test flights, engine tests or other works necessary to investigate the subject of the order shall be at the client’s risk where such activities are undertaken by the client or the client’s appointed agent.
10.5 Whilst the client is in default of acceptance, we shall be liable for wilful intent only.
10.6 We shall in no case be liable for any additional aircraft contents not handed over to us separately for safekeeping in return for a receipt.
10.7 Should we pass on an order placed with us either in whole or in part to another company pursuant to Section 1.4 of these terms and conditions, liability shall in each case be restricted to the assignment of the claims accruing to us against the subcontractor.
10.8 The client declares his willingness to indemnify us against any liability towards third parties and all third-party claims made against us which may arise through the client or in connection with the order placed by the client, unless we shall have acted with wilful intent. Likewise no compensation shall be conceded by us for any direct or indirect loss, irrespective of the legal grounds therefor (even including a positive breach of contract or impermissible act). Compensation will in no case be made for loss of profit. Likewise we shall have no liability for the client’s costs in the event that incorrect completion of works shall cause the client to incur additional travel or flight costs or other costs.
10.9 The client shall be liable for all losses occasioned by him or by his appointed agents.
11.1 We do not insure, or only partially insure, the property handed over to us by the client. The insurance risk in respect of the property which is the subject of the order is borne by the client.
11.2 Where items which are the subject of an order are insured by us and a claim arises, possible costs incurred by us shall be satisfied first out of the insurance proceeds, and thereafter those incurred by the client.
11.3 Unless correspondingly agreed in writing, we are under no obligation to arrange insurance cover for loss or damage of any kind in respect of the property entrusted to us.
12. Other provisions:
12.1 The place of jurisdiction for both parties shall be Saarbruecken, or another venue in the Federal Republic of Germany, at our choice.
12.2 The legal relationship between the parties shall be governed exclusively by German law.
12.3 Claims on the part of the client arising from contracts entered into with us are in no case transferable without our express approval.
12.4 Agreements or assurances which deviate from or supplement the above terms and conditions shall be valid only when agreed in writing and signed by both parties.
12.5 Should any of the above individual provisions be inapplicable, either for legal reasons or because other terms have been agreed, this shall not affect the validity of the remaining terms and conditions.