METROJET LIMITED GENERAL TERMS AND CONDITIONS FOR MAINTENANCE
These General Terms and Conditions (“Terms and Conditions”) will apply to all Maintenance Services provided by Metrojet Limited or its subsidiaries (together “Metrojet”) unless otherwise agreed, notwithstanding any other terms proposed by Customer to the contrary.
1. MAINTENANCE SERVICES
1.1 All line and base maintenance services (“Maintenance Services”) on the Customer’s aircraft (the “Aircraft”) shall be subject to a work order (the “Work Order”). The Work Order shall identify the Aircraft and describe the exact nature of the Maintenance Services to be performed, and shall include a Cost Estimate as described in Clause 2.1 below.
1.2 Changes to the Work Order (including requests for overtime) require the agreement of the Parties. Customer’s oral changes increasing the scope of the work or approving overtime are binding (unless otherwise provided by law). Any defects found on the Aircraft during the performance of the Maintenance Services shall be referred to Customer for approval, and payment shall be made in respect of any additional work in accordance with Clause 3.3 below.
1.3 Subject to Clause 3.3, the work schedule for the Maintenance Services shall be agreed between the Parties and recorded in the relevant Work Order.
1.4 Metrojet may at its sole discretion subcontract to third parties (“Metrojet’s Sub-Contractors”) the whole or part of the Maintenance Services, and will include any such sub-contracted work in the Work Order for Customer’s approval. Metrojet may however subcontract the whole or part of the Maintenance Services to its subsidiaries or associated companies without prior consent from Customer. If any warranty is provided to Metrojet in respect of any Maintenance Services undertaken by Metrojet’s Sub-Contractors, Metrojet will pass on that warranty to Customer in accordance with Clause 6.2 below.
1.5 Metrojet will use reasonable efforts to complete the Maintenance Services in a timely manner. Reasonable efforts do not include overtime unless the Customer agrees to bear overtime charges in accordance with Clause 1.2 above. Metrojet shall not under any circumstances be liable for damages or any late delivery penalty or fees should it fail to perform the Maintenance Services within any period of time specified by the Parties.
1.6 Metrojet will tender the Aircraft to Customer for delivery at the facility where the Maintenance Services are performed, unless otherwise agreed in writing. Customer shall promptly inspect the work and, upon correction or Customer-approved deferral of any discrepancies in the work, Customer shall accept the Aircraft.
1.7 Title to all materials installed in the Aircraft under these Terms and Conditions does not pass until acceptance of the Maintenance Services by Customer, through delivery of the Aircraft or as otherwise mutually agreed in writing.
2. CHARGES
2.1 The Work Order issued by Metrojet to Customer shall include an estimate of the charges in respect of the Maintenance Services set out in the Work Order, including the cost of parts, materials and labour (the “Cost Estimate”). Where applicable, charges in respect of Metrojet’s Sub-Contractors shall be included in the Cost Estimate.
2.2 Unless otherwise agreed between the Parties in writing, should Customer’s Aircraft remain at Metrojet’s facility following completion of the Maintenance Services for more than five (5) days for whatever reason (including a failure to pay for Maintenance Services performed), Metrojet is authorised by Customer to charge the prevailing rate for day storage of aircraft as then charged for aircraft of similar size at 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 these Terms and Conditions, 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.
3. PAYMENT
3.1 Metrojet shall commence the provision of the Maintenance Services in accordance with the Work Order upon Customer accepting and settling one hundred percent (100%) of the Cost Estimate.
3.2 In the event the Work Order is cancelled by Customer within the prescribed time periods prior to the scheduled commencement of Maintenance Services (“Scheduled Commencement Date”), Metrojet reserves the right to charge the following amounts to Customer:
(a) 10% of total Work Order value within twenty-one (21) days of Scheduled Commencement Date;
(b) 30% of total Work Order value within seven (7) days of Scheduled Commencement Date;
(c) 50% of total Work Order value within three (3) days (seventy-two (72) hours) of Scheduled Commencement Date.
Notwithstanding anything to the contrary in this Clause 3.2, Customer shall be liable for any actual fees, charges and expenses incurred by Metrojet in relation to the Work Order in the event of Work Order cancellation by the Customer before the performance of Maintenance Services.
3.3 During the performance of the Maintenance Services:
(a) if Metrojet discovers defects requiring additional Maintenance Services and/or the use of materials not included in the Cost Estimate, or
(b) if Metrojet needs to procure any materials (including, but without limitation, spare parts and tools) exceeding US$10,000 for the provision of the Maintenance Services (and if not included in the Cost Estimate and already paid in accordance with Clause 3.1),
Metrojet shall be entitled to issue a payment request to Customer setting out details for which the payment is required, and Customer shall pay this amount within seven (7) days of the relevant request rendered to Customer by Metrojet. If payment is not received by Metrojet within that period, Metrojet shall be entitled to stop providing Maintenance Services until the relevant payment has been made.
3.4 Customer hereby acknowledges that the actual fees, charges and expenses incurred in connection with the Maintenance Services may not be fully reflected in the Cost Estimate and some fees, charges and expenses may only be realised after the release to service of the Aircraft (“Discrepancy”). Metrojet shall issue to Customer a debit or credit note in respect of any Discrepancy, as the case may be, together with the details of the actual costs incurred for Maintenance Services, and Customer shall settle such Discrepancy within seven (7) days of the debit or credit note. For services provided by third parties, to the extent that the cost of these services is not included in Metrojet’s Work Order, Customer shall settle all relevant invoices with such third parties directly without delay.
3.5 Customer is responsible for all local and foreign taxes, levies, penalties and tariffs applicable to the Maintenance Services 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.
3.6 IF CUSTOMER IS UNABLE OR UNWILLING TO MAKE DUE PAYMENT OF ANY INVOICE PURSUANT TO THESE TERMS AND CONDITIONS, OR CUSTOMER DEFAULTS UNDER ANY OTHER AGREEMENT WITH METROJET OR ITS PARENT OR ASSOCIATED COMPANIES, 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) EXERCISE A LIEN OVER ANY OF CUSTOMER’S AIRCRAFT IN THE POSSESSION OF METROJET UNTIL METROJET RECEIVES ALL PAYMENTS DUE FROM THE CUSTOMER, AND/OR (B) SUSPEND PERFORMANCE OF THE MAINTENANCE SERVICES UNTIL PAYMENT IS MADE IN FULL, AND/OR (C) TERMINATE THE WORK ORDER IMMEDIATELY BY WRITTEN NOTICE. CUSTOMER SHALL PAY ALL COSTS OF ENFORCEMENT AND COLLECTION OF THE OUTSTANDING FEES.
3.7 In relation to the lien which may be exercised under Clause 3.6, should the payment of any overdue amounts not be made to Metrojet within 14 days after a letter demanding payment has been sent to the registered owner of the Aircraft at any place where he carries on business, then in addition to any rights which Metrojet may have at law, Metrojet may in such manner as it thinks fit in its absolute discretion sell the Aircraft or any other aircraft over which the lien is exercised in order to satisfy any overdue amounts.
3.8 IN ADDITION TO THE RIGHTS AND REMEDIES SET OUT IN CLAUSES 3.6 AND 3.7, ALL OVERDUE PAYMENTS SHALL BEAR INTEREST AT THE RATE OF TWO PERCENT (2%) PER MONTH UNTIL PAYMENT IN FULL IS MADE, UNLESS OTHERWISE AGREED BY METROJET.
4. SAFETY AND SECURITY
Customer’s employees, agents, subcontractors and representatives shall abide by all applicable Metrojet operating manuals, policies, procedures and safety protocols when present on Metrojet’s premises.
5. INTELLECTUAL PROPERTY RIGHTS
Any intellectual property rights in, or relating to, the Maintenance Services (including any parts supplied therewith) remain with Metrojet (or where relevant, third parties) unless otherwise agreed by Metrojet. For the avoidance of doubt, this Clause does not derogate from any existing intellectual property right which the Customer may have prior to the commencement of the Maintenance Services.
6. WARRANTIES
Due Skill and Care
6.1 Metrojet warrants to Customer that the Maintenance Services shall be carried out by duly qualified, certified, licensed and competent personnel in a professional and workmanlike manner which shall at all times conform to the generally accepted industry standards and practice. This warranty is provided by Metrojet for the Warranty Period. Work performed by Metrojet’s Sub-Contractors is not warranted by Metrojet except to the extent that sub-contractor warranties are passed on to Customer pursuant to Clause 6.2 below.
Pass-Through Warranty
6.2 In the event Metrojet purchases or procures any third-party products or services (including from Metrojet’s Sub-Contractors) for Customer in connection with the provision of Maintenance Services, Metrojet shall pass-through or assign to Customer the rights Metrojet obtains from the manufacturers, vendors and/or sub-contractors in relation to such products and services (including warranty and indemnification rights), all to the extent that such rights are assignable.
Remedy
6.3 If any Maintenance Services undertaken by Metrojet are proven to be defective (fair wear and tear excepted) within three (3) months or one hundred and fifty (150) flight hours, whichever comes first, after completion of Maintenance Services (the “Warranty Period”), subject to Clause 6.6 Metrojet’s sole obligation and Customer’s sole remedy in relation to the warranty provided in Clause 6.1 above is limited to repair, replacement or correction (at Metrojet’s reasonable discretion) of the defective work, limited to the value of the Work Order of the relevant Maintenance Services. Where discrepancies are found on Customer’s inspection of the Aircraft after completion of Maintenance Services, the Warranty Period in respect of those discrepancies only shall commence once the relevant discrepancies have been corrected.
6.4 Any work performed by Metrojet as warranty work is itself warranted for the remainder of the pre-existing Warranty Period but no further.
6.5 Except to the extent covered by any third party warranty passed on to Customer under Clause 6.2, 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 facility.
6.6 Notwithstanding anything else in these Terms and Conditions, 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 the inspection that was defective.
6.7 Metrojet’s warranty obligations hereunder are expressly conditioned upon compliance with all of the following: within the Warranty Period, Customer must provide Metrojet with written notice within thirty (30) days after the defect becomes apparent; Customer must return or otherwise dispose of the item at issue as directed by Metrojet within thirty (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.
Termination of Warranty
6.8 The warranties set forth above in this Clause 6 are void if either the Aircraft or warranted item have been subjected to either (i) 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 (ii) any accident or incident that proximately causes or contributes to the failure or substandard performance of the warranted item or further damage to the Aircraft.
7. LIABILITY AND INDEMNITY
7.1 Customer’s remedy for failure by Metrojet to perform, or breach (including repudiatory breach) by Metrojet of, any obligation with respect to the provision of Maintenance Services is as set out in these Terms and Conditions and not otherwise.
7.2 CUSTOMER’S ENTITLEMENT TO THE WARRANTIES AND ALL OTHER RIGHTS AND PRIVILEGES GRANTED BY THESE TERMS AND CONDITIONS ARE IN LIEU OF AND TO THE EXCLUSION OF ALL OTHER WARRANTIES (EXCEPT WARRANTY OF TITLE), TERMS AND CONDITIONS (WHETHER EXPRESS, IMPLIED BY STATUTE OR OTHERWISE) AND ANY OTHER RIGHT OR CAUSE OF 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, WHETHER ARISING UNDER THESE TERMS AND CONDITIONS OR OTHERWISE, SAVE THAT CUSTOMER MAY BRING AN ACTION IN CONTRACT IN ORDER TO ENFORCE ANY OBLIGATIONS EXPRESSLY UNDERTAKEN BY METROJET IN THESE TERMS AND CONDITIONS.
7.3 Notwithstanding anything else in these Terms and Conditions, Metrojet shall not be liable to Customer for indirect, incidental, consequential, special or exemplary losses or damages that arise from or relate in any way to these Terms and Conditions, or the Aircraft’s presence on its facility as a result of these Terms and Conditions, 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 other commercial loss.
7.4 Under no circumstances shall Metrojet be liable nor deemed to be in default under these Terms and Conditions or any Work Orders for delays caused by delays of Customer in the payment of any Charges.
7.5 Customer assumes the risk of and agrees to indemnify and hold harmless Metrojet (including its subsidiaries, affiliates and parent company) and its officers, directors, agents, contractors, sub-contractors and employees from and against any and all liability, damage, loss, cost and expense, including legal fees, on account of any claim, suit or action made or brought against Metrojet, its officers, agents or employees (including claims brought against Metrojet because of Metrojet’s own negligence) for (i) the death of or injury to employees, crew, agents, representatives, contractors or subcontractors of Customer, or (ii) damage to or destruction of property of Customer (other than damage or destruction of the Aircraft upon which Maintenance Services are performed), sustained as a result of Customer’s presence on Metrojet’s facilities in connection with these Terms and Conditions, unless caused by deliberate or reckless acts or omissions by Metrojet or its employees acting within the scope of their employment.
8. INSURANCE
8.1 No bailment is created by these Terms and Conditions, 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.
8.2 Customer shall at its own cost and expense maintain and on demand provide satisfactory evidence to Metrojet that it has, in full force and effect, insurance with reputable insurers in amounts and on terms acceptable to Metrojet in respect of the Aircraft. Such insurance must include hull all risks insurance and aviation third party liability insurance in relation to the Aircraft.
9. FORCE MAJEURE
Metrojet shall not be held responsible nor deemed to be in default under these Terms and Conditions or any Work Order for any non-performance, partial performance or delay resulting wholly or partly from any force majeure or occurrence of any event or any circumstances whatsoever beyond Metrojet’s reasonable control, including but without limitation, the acts or omissions of governments or other authorities, blockades or embargoes, strikes or labour disputes, civil disturbances, epidemics, pandemics,acts of God, acts of terrorism, riot, war, severe weather conditions including typhoons, volcanic eruption, or natural disaster (together comprising “Force Majeure”).
10. CONFIDENTIALITY
All information which is made available to or obtained by Customer from or in connection with the Work Order and which is not a matter of public knowledge or lawfully available from any other source will be and will remain confidential and will not, without the prior written consent of Metrojet, be disclosed to any third person other than as may be required by law or regulatory authority.
11. NOTICES
11.1 Any notice given under these Terms and Conditions shall be in writing in the English language and shall be delivered or sent by post to the other party at its registered office. In addition, in the case of Metrojet, notices may be sent by email to the address below. The relevant addresses for notices to Metrojet are as follows:
Address: Metrojet Limited, Suite 1303-1306, One Citygate, 20 Tat Tung Road, Tung Chung, Hong Kong
Email: [email protected]
11.2 Any notice so addressed to the relevant party shall be deemed to have been delivered (a) if given or made by letter or email, when actually delivered to the relevant address; and (b) if given or made by post, three (3) business days after posting.
12. GENERAL
12.1 The person requesting Maintenance Services on behalf of Customer represents and warrants that he is an authorised agent of the Aircraft owner(s) and, if applicable, lessor(s) and/or lessee(s) with full authority to bind such owner(s), lessor(s), or lessee(s) with respect to all Maintenance Services 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.
12.2 Metrojet assumes no contractual obligation with respect to the Maintenance Services other than as expressly set out in these Terms and Conditions, whether arising under any condition, warranty or term express or implied by law or otherwise.
12.3 Time shall be of the essence of these Terms and Conditions. References to “days” in these Terms and Conditions are to calendar days, unless stated otherwise.
13. GOVERNING LAW AND JURISDICTION
13.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of Hong Kong SAR.
13.2 Any dispute or claim arising out of or relating to these Terms and Conditions shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Arbitration Rules in force at the relevant time. The seat of arbitration shall be Hong Kong, and the arbitration proceedings shall be conducted by a single arbitrator in English.
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