1. AGREEMENT. This Aircraft Maintenance Quote, including documents incorporated by reference, (the “Agreement” identifies the services and materials (the “Work”) to be provided by Metrojet Limited., its employees, agents, representatives, affiliates, or contractors, (collectively “Metrojet”) to the aircraft identified on the first page of this Agreement (the “Aircraft”) plus the associated terms and conditions of the Agreement. “Customer” means collectively the customer identified on the first page hereof, and all owners, operators, lessors, lessees and insurers of the Aircraft.
THIS AGREEMENT SHALL GOVERN THE RELATIONSHIP BETWEEN METROJET AND THE CUSTOMER TO THE EXCLUSION OF ANY OTHER TERMS AND CONDITIONS WHICH APPEAR IN THE CUSTOMER’S ORDER OR DOCUMENTATION.
This Agreement is the parties’ entire agreement concerning the Work and replaces prior verbal or written agreements with respect thereto. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of this Agreement except as expressly stated in this Agreement. The Customer shall have no remedy in respect of any untrue statement made by Metrojet upon which the Customer relied in entering into this Agreement (unless such untrue statement was made fraudulently) and the Customer’s only remedies shall be for breach of contract as provided for in this Agreement. This Agreement’s terms and conditions (but excluding changes in the scope of the Work and overtime authorizations) may not be altered except by a writing that expressly references this Agreement and is signed by authorized representatives of both parties.
2. WORK CHANGES. Customer authorizes Metrojet to expend labour and materials reasonably appropriate to the mutually agreed Work. Work changes (including requests for overtime) require agreement of the parties. Customer’s oral changes increasing the scope of the Work or approving overtime are binding (unless otherwise provided by law). Customer payment of the invoice for any additional Work item is customer acknowledgment that the additional item was mutually agreed upon as part of the Work.
3. PRICING. Except as otherwise specifically agreed between the parties in writing, all Work (including engineering services) performed under this Agreement is on a TIME AND MATERIALS BASIS unless expressly subject to a formal fixed-price quote signed by both Metrojet and Customer.
CUSTOMER ACKNOWLEDGES THAT ESTIMATES OF EXPECTED HOURS/MATERIAL COSTS ARE NOT QUOTES AND ARE BILLED SOLELY ON A TIME AND MATERIALS BASIS.
For time and materials Work: (a) labour (including engineering services) is billed according to the rates set forth in the Metrojet Rates in effect as of the date the Work is performed; and (b) materials are billed according to Metrojet’s standard prices in effect on the date the material is used. Any incremental charge under Metrojet’s Component Exchange will be billed by supplementary invoice. All costs and fees are, unless otherwise stated, exclusive of VAT and all the other applicable taxes and duties, which shall be payable by the Customer.
4. PAYMENT TERMS. Except as set forth below, payment terms are due upon presentation of invoice. For Work estimated to exceed US$10,000, Customer agrees to make progress payments on the following schedule: Fifty percent (50%) of the estimated amount prior to commencement of Work on the Aircraft, and final payment due on date of final invoice. Additional deposits may be required for long-lead or special purchased parts, which are not refundable should the visit be cancelled, or work scope changed to eliminate those items. If any portion of an invoice is disputed, then Customer shall nevertheless pay all undisputed amounts per this schedule. If, before completing the Work scope, or at any time thereafter, Customer is unable or unwilling to make due payment of any invoice, Customer’s total outstanding fees, or Customer becomes insolvent or makes an assignment for the benefit of creditors, Metrojet may (at its option), without prejudice to any other right or remedy that may be available, (a) retain Customer’s Aircraft in the possession of Metrojet until Metrojet receives all payments due from the Customer, and/or (b) suspend performance of the Work until payment is made in full, or (c) terminate the Agreement immediately by written notice. All sums past due shall bear interest at the rate of 2% per month until payment in full is made.
5. TAXES. Customer is responsible for all local and foreign taxes, levies, penalties and tariffs applicable to the Work performed hereunder, the materials used or transportation (other than taxes on income of Metrojet) and Customer shall indemnify and hold Metrojet harmless with respect thereto.
6.1 GENERAL. Metrojet warrants that the Work conforms to the pertinent specifications prescribed by the applicable aircraft/component manufacturer, and that any components or other items supplied hereunder (but excluding Customer-furnished items) are free from defects in material and workmanship. This warranty extends to defects discovered within three (3) months, or one hundred fifty (150) flight hours, whichever comes first, after completion of the Work: except that the warranty period for any Work performed as warranty work is equal to the pre-existing unexpired warranty period. Parts qualifying for the “Exclusive Metrojet Parts Warranty Extension” Program, or other extended published Metrojet warranty programs. If any, are entitled to an extended warranty period pursuant to the terms of such Programs as they exist on the date this Agreement is executed.
6.2 REMEDY. Metrojet’s sole obligation for breach of warranty for Work other than inspection activities, and Customer’s sole remedy, is limited to the repair, replacement or correction (at Metrojet’s reasonable discretion) of the defective Work. All parts and labour required for disassembly, removal, installation and reassembly of the defective item are Metrojet’s expense, but only if the Work is performed at a Metrojet’s facility. Metrojet’s sole obligation for negligent or otherwise defective inspection activities, including any damage to an Aircraft that results from any alleged negligent inspection, and customer’s sole remedy, is limited to refund of any payments made by Customer for that portion of such inspection that was defective.
6.3 ADDITIONAL REMEDY FOR COLLATERAL AIRCRAFT DAMAGE.
6.3.1 GENERAL. Metrojet warrants that the Work conforms to the pertinent specifications prescribed by the applicable aircraft/component manufacturer, and that any components or other items supplied hereunder (but excluding Customer-furnished items) are free from defects in material and workmanship. This warranty extends to defects discovered within three (3) months, or one hundred fifty (150) flight hours, whichever comes first, after completion of the Work: except that the warranty period for any Work performed as warranty work is equal to the pre-existing unexpired warranty period. Parts qualifying for the “Exclusive Metrojet Parts Warranty Extension” Program, or other extended published Metrojet warranty programs. If any, are entitled to an extended warranty period pursuant to the terms of such Programs as they exist on the date this Agreement is executed.
6.3.2 Notwithstanding anything else in this Agreement, Metrojet’s remedy obligations under this Agreement shall not include Aircraft damage that either (a) allegedly is caused by a negligent inspection where the damage occurs after completion of the Work or (b) is caused by a Flight Operations Accident (as defined below). “Flight Operations Accident” means an accident or incident occurring between ramp movement for flight through take off, flight, landing, taxi and parking in which the Aircraft suffers damage from contact with the earth or other objects.
6.4 TERMINATION OF WARRANTY. The warranties and Metrojet’s obligations for the repair of Aircraft Damage set forth above in Section 6 are void if either the Aircraft or warranted item have been subjected to maintenance, overhaul, installation, storage, operation, or use which is improper or not in accordance with the aircraft/component manufacturer’s instructions (including failure to comply with approved operating and maintenance manuals, instructions or bulletins, or customary maintenance or airmanship practices), or to any accident or casualty that proximately causes or contributes to the failure or substandard performance of the warranted item or further damage to the Aircraft.
6.5 CUSTOMER’S OBLIGATIONS. Metrojet’s warranty obligations hereunder are expressly conditioned upon compliance with all of the following: Customer must provide Metrojet with written notice within 30 days after the defect becomes apparent; Customer must return or otherwise dispose of the item at issue as directed by Metrojet within 30 days after receipt of Metrojet’s instructions; and Customer shall maintain and make available to Metrojet all records (including FDR, CVR and other aircraft recorded data) reasonably related to the maintenance, use and condition of the item at issue.
7. DISCLAIMERS. THE EXPRESS WARRANTIES IN SECTION 6 OF THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (EXCEPT FOR THE WARRANTY OF TITLE) AND REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS (INCLUDING FITNESS FOR A PARTICULAR PURPOSE) (COLLECTIVELY “EXCLUDED WARRANTIES”). Except as expressly set forth in this Agreement, Customer on behalf of itself and all owners, operators, lessors, lessees, and insurers of the Aircraft, hereby waives and releases all rights, claims, and remedies (through subrogation or otherwise) with respect to any and all Excluded Warranties, duties, obligations, and liabilities in tort or contract arising or implied by statute, common law or otherwise from this Agreement or the Work, including: (1) liability for Metrojet’s own negligence or (2) strict liability or product liability.
8. EXCLUSION OF ALL OTHER DAMAGES. Notwithstanding anything else in this Agreement. Metrojet shall not be liable for punitive, special, incidental or consequential damages that arise from or relate in any way to this Agreement, or the Aircraft’s presence on its facility as a result of this Agreement, whether arising out of contract, warranty, tort or by statute or otherwise. Such excluded damages include damages for loss of use, loss of time, inconvenience, diminution in value or commercial loss.
THE EXCLUSION OF SUCH DAMAGES AS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SHALL BE DEEMED INDEPENDENT OF ALL WARRANTIES, AND OTHER PROVISIONS OF THIS AGREEMENT, AND SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR LIMITED REMEDY UNDER THE TERMS OF THIS AGREEMENT.
Nothing in this Clause 8 or otherwise in this Agreement shall exclude or in any way limit Metrojet’s liability to Customer for (i) fraud, (ii) death or personal injury caused by its negligence or (iii) any liability to the extent the same may not be excluded or limited as a matter of law. To the extent that any limitation of liability or remedy in this Agreement is found to be unenforceable, then in that case Metrojet’s maximum aggregate liability to Customer under or in connection with the Agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise shall in no circumstances exceed the fees payable hereunder in respect of any claim or series of related claims made.
9. LIABILITY TO THIRD PARTIES. The disclaimer clause set out in these terms and conditions will not be interpreted to affect in any way Metrojet’s obligations, if any, for third party personal injury, wrongful death or property damage to other than the Aircraft or its contents. Any disclaimer or indemnity clause that is intended to release or otherwise decrease Metrojet’s obligations to third parties shall be specifically set out in a separate writing executed by the customer.
10. NO BAILMENT. No bailment is created by this Agreement, and Metrojet shall not act as insurer of the Aircraft while the Aircraft is present at Metrojet’s facility or otherwise in Metrojet’s custody or control.
11. NO DELAY PENALTY. Metrojet will use reasonable efforts to complete the Work in a timely manner. Reasonable efforts do not include overtime unless the Customer agrees to bears overtime charges. Notwithstanding such obligation, Metrojet shall not under any circumstances be liable for damages, late delivery penalty, fee or the like should it fail to perform the Work within any period of time specified by the Parties.
12. ACCEPTANCE OF DELIVERY. Metrojet will tender the Aircraft to Customer for delivery at the facility where the Work was performed, unless otherwise agreed in writing. Customer shall promptly inspect the Work, and, upon correction or customer approved deferral of any discrepancies in such Work, Customer shall accept the Aircraft.
13. TITLE. Title to all materials installed in the Aircraft under this Agreement does not pass until acceptance of the Work by Customer, through delivery of the Aircraft or as otherwise mutually agreed in writing.
14. EXCESS STORAGE CHANGE. Unless otherwise agreed between the parties in writing, should Customer’s Aircraft remain at Metrojet’s facility following completion of the Work for more than five (5) days, or whatever reason (but including a failure to pay for Work performed), Metrojet is authorized by Customer to change the prevailing rate for day storage of aircraft as then charged by Fixed Base Operators for aircraft of similar size on the airport where the Aircraft is stored (but not less than US$1,000 per day). Unless otherwise expressly agreed in writing as part of this Agreement, Metrojet is under no obligation to provide any maintenance services whatsoever to the Aircraft while being stored under this provision and any dilapidation of the Aircraft during such storage period shall be Customer’s sole responsibility.
15. SAFETY AND SECURITY. Customer’s employees, agents, subcontractors and representatives shall abide by all applicable Metrojet policies, procedures and safety protocols when present on Metrojet’s premises.
16. INDEMNITY BY CUSTOMER ENTERING METROJET’S PREMISES FOR PERSONAL INJURY AND DAMAGE TO OTHER PROPERTY. Customer assumes the risk of and agrees to indemnify and hold harmless Metrojet, its officers, agents and employees from and against any and all liability, damage, loss, cost and expense, including attorney’s fees, on account of any claim, suit or action made or brought against Metrojet, its officers, agents of employees (including claims brought against Metrojet because of Metrojet’s own negligence) for the death of or injury to employees, agent, representatives and subcontractors of Customer, or damage or destruction of property of Customer, its employees, agents, representatives or subcontractors, (other than damage or destruction of the Aircraft upon which Work is performed which is addressed elsewhere under this Agreement) sustained in connection Customer’s presence on Metrojet’s facilities (including its hangars and ramps but excluding Metrojet’s customer lobby and customer briefing rooms) during the course of the Agreement, except for the wilful misconduct of Metrojet or its employees acting within the scope of their employment.
17.1 This Agreement and any non-contractual obligations arising out of or in relation to this Agreement are governed by the Laws of Hong Kong.
17.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the Laws of Hong Kong, which Rules are deemed to be incorporated by reference into this clause. The dispute shall be settled by one (1) arbitrator (except if the amount (if any) claimed in the Request for Arbitration is in excess of US$1 Million, in which case the dispute shall be settled by three (3) arbitrators). The place of arbitration shall be Hong Kong. The parties hereby agree that any restriction in the Rules upon the nomination or appointment of an arbitrator by reason of nationality shall not apply to any arbitration commences pursuant to this clause. Where the dispute is to be resolved by one arbitrator, the parties shall use their best efforts to agree upon an arbitrator within thirty (30) days after the Request for Arbitration is filed, and if agreement is not reached by such date then either party may request the Laws of Hong Kong to appoint an arbitrator in accordance with its Rules. Where the dispute is to be resolved by three arbitrators, the parties shall each be entitled to nominate one arbitrator, the third arbitrator being appointed by the two-party-nominated arbitrators. The Arbitrator(s) shall endeavour to deliver the Award to the Laws of Hong Kong within 30 days of the conclusion of the final hearing, in the case of a sole arbitrator, or 60 days, in the case of a tribunal of three arbitrators. The language of the arbitration shall be English.
18. MISCELLANEOUS. If any provision of this Agreement is held invalid under applicable law, such provision will be ineffective only to the extent of such invalidity without invalidating the remainder of this Agreement. If there is any conflict between these terms and conditions hereof and any document incorporated herein by reference, then these terms and conditions shall control unless such document expressly states the contrary. The words “include”, “including” and variations thereof are not terms of limitation and shall be deemed followed by “without limitation.” Exports or re-exports of commodities, technology and software provided as part of the Work are subject to the Laws of Hong Kong and the U.S. Export Administration Regulations and diversion contrary to U.S. law is prohibited. Customer shall comply with all applicable U.S. export laws and regulations.
19. SEVERABILITY. If any provision or part of a provision of this Agreement shall be or shall be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of Agreement, all of which such remain in full force and effect.
20. AUTHORISATION OF AIRCRAFT OWNER/LESSOR/LESSEE. The person signing this Agreement on behalf of Customer represents, warrants and affirms that he is an AUTHORISED AGENT OF THE AIRCRAFT OWNER(S), and, if applicable, lessor(s) and/or lessee(s) with full authority to enter into this Agreement and bind such owner(s), lessor(s), or lessee(s), with respect to all Work contemplated herein and on behalf of himself and his employer agrees to indemnify Metrojet for all losses arising from any breach of this representation and warranty.