Exhibit 10.1
CONFIDENTIAL TREATMENT HAS BEEN GRANTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***].
AIRCRAFT PURCHASE AGREEMENT
BETWEEN
A I R B U S
S.A.S.
as Seller
AND
AER VENTURE
LIMITED
as Buyer
CONTENTS
CLAUSES |
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0 |
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DEFINITIONS AND INTERPRETATION |
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SALE AND PURCHASE |
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SPECIFICATION |
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PRICES |
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PRICE REVISION |
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PAYMENTS |
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6 |
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MANUFACTURE PROCEDURE - INSPECTION |
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CERTIFICATION |
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BUYER'S TECHNICAL ACCEPTANCE |
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DELIVERY |
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EXCUSABLE DELAY |
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NON-EXCUSABLE DELAY |
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12 |
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WARRANTIES AND SERVICE LIFE POLICY |
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13 |
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PATENT AND COPYRIGHT INDEMNITY |
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14 |
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TECHNICAL DATA AND SOFTWARE SERVICES |
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15 |
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SELLER'S REPRESENTATIVES |
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16 |
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TRAINING AND TRAINING AIDS |
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17 |
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EQUIPMENT SUPPLIER PRODUCT SUPPORT |
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18 |
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BUYER FURNISHED EQUIPMENT |
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19 |
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INDEMNIFICATION AND INSURANCE |
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20 |
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TERMINATION |
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21 |
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ASSIGNMENTS AND TRANSFERS |
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22 |
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MISCELLANEOUS PROVISIONS |
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EXHIBITS |
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TITLES |
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Exhibit A |
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SPECIFICATION |
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Exhibit B |
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FORM OF SPECIFICATION CHANGE NOTICE |
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Exhibit C |
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PART 1 AIRFRAME PRICE REVISION FORMULA |
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PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA |
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Exhibit D |
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FORM OF CERTIFICATE OF ACCEPTANCE |
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Exhibit E |
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FORM OF BILL OF SALE |
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Exhibit F |
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SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE |
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Exhibit G |
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TECHNICAL DATA INDEX |
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Exhibit H |
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MATERIAL SUPPLY AND SERVICES |
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Exhibit I |
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FORM OF ASSIGNMENT OF AIRFRAME WARRANTY AND SUPPORT RIGHTS AND PARTICIPATION AGREEMENT |
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AIRCRAFT PURCHASE AGREEMENT
This Aircraft Purchase Agreement (the "Agreement") is made as of December 30, 2005
BETWEEN:
AIRBUS S.A.S., a société par actions simplifiée, legal successor of Airbus S.N.C., formerly known as Airbus G.I.E. and Airbus Industrie G.I.E. created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the "Seller"),
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AerVenture Limited a company organised under the laws of the Republic of Ireland having its principal place of business located at debis AirFinance House, Shannon, County Clare, Ireland (the "Buyer").
WHEREAS subject to the terms and conditions of this Agreement, the Seller desires to sell the Aircraft to the Buyer and the Buyer desires to purchase the Aircraft from the Seller.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
4
0 DEFINITIONS AND INTERPRETATION
In addition to words and terms elsewhere defined in this Agreement, the initially capitalised words and terms used in this Agreement shall have the meaning set out below.
Affiliate |
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means with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such person or entity. |
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Affiliated Training Centers |
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has the meaning set out in Clause 16.3.1. |
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Agreement |
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this Aircraft Purchase Agreement, including all exhibits, appendixes and letter agreements attached hereto, as the same may be amended or modified in writing by the parties and in effect from time to time. |
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Aircraft |
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any or all of the seventy (70) Airbus A320 family aircraft to be sold by the Seller to the Buyer pursuant to this Agreement comprising twenty five (25) A319-100 model aircraft and forty five (45) A320-200 model aircraft, subject to any subsequently agreed conversion together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon Delivery. |
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Aircraft Training Services |
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means all training courses, flight training, line training, flight assistance, line assistance, maintenance support, maintenance training (including Practical Training) or training support performed on aircraft and provided to the Buyer pursuant to this Agreement, whether or not provided in the Seller's or Seller's Affiliate facilities. |
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Airframe |
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means the Aircraft excluding the Propulsion Systems. |
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Airframe Basic Price |
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has the meaning set out in Clause 3.2. |
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Airframe Price Revision |
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Formula |
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is set out in Part 1 of Exhibit C. |
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Assignment of Airframe |
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Warranty and Support |
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Rights |
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with respect to an Aircraft, means the assignment of airframe warranty and support rights entered into or to be entered into between the Buyer and its Operator in the form or substantially in the form of Exhibit I (and as consented to by the Seller). |
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Approved List |
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has the meaning set out in Clause 18.5.2. |
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Approved Suppliers |
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has the meaning set out in Clause 18.5.2. |
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Aviation Authority |
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means when used in respect of any jurisdiction the government entity, which under the laws of such jurisdiction has control over civil aviation or the registration, airworthiness or operation of aircraft in such jurisdiction. |
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Balance of Final Price |
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has the meaning set out in Clause 5.4.1 |
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Basic Price |
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means the sum of the Airframe Basic Price and the Propulsion Systems Basic Price. |
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Bill of Sale |
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with respect to a Aircraft, means a bill of sale in the form of Exhibit E. |
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Buyer Furnished |
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Equipment |
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has the meaning set out in Clause 18.1.1. |
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Certificate of Acceptance |
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with respect to an Aircraft, means a certificate of acceptance in the form of Exhibit D. |
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Default Rate |
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means the default rate of interest as defined in Clause 5.7. |
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Delivery |
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with respect to an Aircraft, means the transfer of title to the Aircraft from the Seller to the Buyer in accordance with Clause 9. |
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Delivery Date |
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with respect to an Aircraft, means the date on which Delivery shall occur. |
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Delivery Location |
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with respect to an Aircraft, means the facilities of the Seller at the location of final assembly of the |
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Aircraft which depending on the Aircraft model is either in France or in Germany. |
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Delivery Period |
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has the meaning ascribed thereto in Clause 9.2.1. |
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Deposit |
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has the meaning set out in Clause 5.2. |
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Designated AirworthinessAuthority |
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has the meaning set out in Clause 7.2.6. |
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Development Changes |
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as defined in sub-Clause 2.1.3 of this Agreement |
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Excusable Delay |
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has the meaning set out in Clause 10.1. |
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Export Airworthiness |
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Certificate |
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with respect to an Aircraft, means an export certificate of airworthiness issued by the Aviation Authority of the Delivery Location. |
Failure |
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has the meaning set out in Clause 12.2.1. |
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Final Price |
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has the meaning set out in Clause 3.4 |
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Gross Negligence |
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means any act or omission done with either (i) intent to cause damage or (ii) recklessly and with knowledge that damage would probably result or (iii) where the risk of damage resulting from such act omission would be obvious to a person acting reasonably and in knowledge of the same facts as the offending party but the offending party has not considered the possible existence of such risk. |
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Ground Training Services |
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means all training courses performed in classrooms (classical or Airbus CBT courses), full flight simulator sessions, fixed base simulator sessions, field trips and any other services provided to the Buyer on the ground pursuant to this Agreement and which are not Aircraft Training Services. |
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Initial Operator |
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with respect to an Aircraft, means the first operator of such Aircraft in commercial revenue service following its Delivery by the Seller to the Buyer. |
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Item |
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has the meaning set out in Clause 12.2.1. |
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Manufacture Facilities |
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means the various manufacture facilities of the Seller, its Affiliates or any sub-contractor, where the Airframe or its pads are manufactured or assembled. |
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Material |
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has the meaning set out in Clause 1.1 of Exhibit H. |
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Operator |
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with respect to an Aircraft, means any operator of such Aircraft following Delivery hereunder. |
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Non-Excusable Delay |
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has the meaning set out in Clause 11.1. |
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Participation Agreement |
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with respect to an Aircraft means the participation agreement relating to such Aircraft entered into or to be entered into between the Buyer and the relevant Operator in the form or substantially in the form of Exhibit I (and as consented to by the Seller). |
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Predelivery Payment |
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means the payment(s) determined in accordance with Clause 5.3. |
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Predelivery Payment |
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Reference Price |
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with respect to an Aircraft, means the predelivery reference price for such Aircraft determined in accordance with Clause 5.3.1. |
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Propulsion Systems |
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with respect to an Aircraft, means either (i) the two (2) IAE propulsion systems selected as per sub-Clause 3.3.6 hereof and installed on such Aircraft on Delivery, each composed of the powerplant (as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to the equipment, components, parts and accessories included in the powerplant, as so defined), and including nacelles and thrust reversers, that have been sold to the Seller by International Aero Engines; or (ii) the two (2) CFM International CFM propulsion systems selected as per sub-Clause 3.3.6 hereof and installed on such Aircraft on Delivery, each composed of the powerplant (as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to the equipment, |
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components, parts and accessories included in the powerplant, as so defined) that have been sold to the Seller by CFM international |
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Propulsion Systems BasicPrice |
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with respect to a set of Propulsion Systems, means the price of such set of Propulsion Systems as set out in Clause 3.3. |
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Propulsion SystemsReference Price |
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with respect to a set of Propulsion Systems, means the reference price for such set of Propulsion Systems as set out in Part 2 of Exhibit C. |
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Propulsion SystemsManufacturer |
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with respect to an Aircraft, means the manufacturer of the Propulsion Systems selected by the Buyer pursuant to sub-Clause 3.3.6 for that Aircraft. |
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Propulsion Systems PriceRevision Formula |
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is set out in Part 2 of Exhibit C |
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Ready for Delivery |
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with respect to an Aircraft, means the time when (i) the Technical Acceptance Process has been successfully completed and (ii) the Export Airworthiness Certificate has been issued for that Aircraft. |
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Scheduled Delivery Month |
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has the meaning set out in Clause 9.1. |
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Seller's Representatives |
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means the representatives of the Seller referred to in Clause 15.2. |
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Seller RepresentativesServices |
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means the services provided by the Seller to the Buyer pursuant to Clause 15. |
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Seller Service Life Policy |
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has the meaning set out in Clause 12.2. |
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Seller's Training Course |
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Catalog |
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has the meaning set out in Clause 16.4.1. |
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Seller's Training Center |
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has the meaning set out in Clause 16.3.1. |
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Spare Parts |
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means the items of equipment and material which may be provided pursuant to Exhibit H. |
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Specification Change |
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Notice or SCN |
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means an agreement in writing between the parties to amend the Specification pursuant to Clause 2. |
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Specification |
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with respect to an Aircraft, means either (a) the Standard Specification if no SCNs are applicable or (b) if SCNs are issued in this Agreement, the Standard Specification as amended by all applicable SCNs for that Aircraft. |
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SSBFE |
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has the meaning set out in Clause 18.5.1. |
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Standard Specification |
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with respect to an Aircraft, means the Seller's relevant standard specification document number, issue and issue date, as well as the relevant design weights relating to the aircraft purchased and sold in this Agreement a copy of which has been annexed as an Exhibit A to this Agreement. |
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Supplier |
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has the meaning set out in Clause 12.3.1.1. |
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Supplier Part |
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has the meaning set out in Clause 12.3.1.2. |
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Supplier Product |
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Support Agreement |
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has the meaning set out in Clause 12.3.1.3. |
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Technical AcceptanceProcess |
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with respect to an Aircraft, means the technical acceptance process for such Aircraft to be performed pursuant to Clause 8 including without limitation the acceptance tests performed on the Aircraft in order to demonstrate the satisfactory functioning of the Aircraft and compliance with the Specification. |
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Technical Data |
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has the meaning set out in Clause 14 |
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Total Loss |
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has the meaning set out in Clause 10.4. |
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Training Conference |
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has the meaning set out in Clause 16.4.1 |
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Type Certificate |
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has the meaning set out in Clause 7.1. |
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Warranty Part |
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has the meaning set out in Clause 12.1.1. |
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Warranted Period |
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has the meaning set out in Clause 12.1.3 |
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Working Day |
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with respect to (i) any action to be taken hereunder, a day other than a Saturday, Sunday or other day designated as a holiday in the jurisdiction in which such action is required to be taken or (ii) any payment to be made hereunder, any day other than a Saturday, Sunday or a day that is a legal holiday or a day on which banking institutions are authorised to close in the City of New York, USA, the Republic of Ireland, Amsterdam, The Netherlands, Hamburg, Germany or Paris, France. |
0.2 Clause headings and the Index are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.
0.3 In this Agreement unless the context otherwise requires:
(a) references to Clauses, paragraphs, Appendices, Schedules and Exhibits are to be construed as references to the Clauses of, paragraphs of and Appendices, Schedules and Exhibits to this Agreement and references to this Agreement include its Schedules, Exhibits and Appendices;
(b) words importing the plural shall include the singular and vice versa; and
(c) references to a person shall be construed as including, without limitation, references to an individual, firm, company, corporation, unincorporated body of persons and any state or agency of a state.
11
1 SALE AND PURCHASE
The Seller will cause to be manufactured and will sell and deliver, and the Buyer will buy and take delivery of each of the Aircraft subject to the terms and conditions contained in this Agreement.
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2 SPECIFICATION
2.1 Airframe Specification
2.1.1 Specification
The A319-100 aircraft (the "A319 Aircraft") will be manufactured in accordance with the Standard Specification, Document J.000.01000, Issue 5 dated January 31, 2005, as amended to reflect 70t MTOW, 61t MLW, 57t MZFW (as so amended, the "Standard Specification", a copy of which is annexed hereto as Exhibit A-1).
The A320-200 aircraft (the "A320 Aircraft") will be manufactured in accordance with the Standard Specification, Document D.000.02000, Issue 6 dated January 31, 2005, as amended to reflect 77t MTOW, 64.5t MLW, 61t MZFW (as so amended, the "Standard Specification", a copy of which is annexed hereto as Exhibit A-2).
2.1.2 Specification Change Notice (SCN)
The Specification may be amended by written agreement between the parties in a Specification Change Notice. Each Specification Change Notice shall be substantially in the form set out in Exhibit B and shall set out in detail the particular change to be made to the Specification and the effect, if any, of such change on design, performance, weight, time of Delivery of the relevant Aircraft, and on the text of the Specification. Such SCN may result in an adjustment of the Basic Price.
2.1.3 Development Changes
The Specification may also be revised by the Seller without the Buyer's consent in order to incorporate development changes if such changes do not adversely affect price, time of delivery, weight or performance of the Aircraft, interchangeability or replaceability requirements under the Specification. In any other case the Seller shall issue to the Buyer a Manufacturer Specification Change Notice. Development changes are changes deemed necessary by the Seller to improve the Aircraft, prevent delay or ensure compliance with this Agreement (the "Development Changes").
2.1.4 Specification Change Notices for Certification
The provisions relating to Specification Change Notices for certification are set out in Clauses 7.2. and 7.3.
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2.1.5 Buyer Import Requirements
The provisions relating to Specification Change Notices for Buyer import requirements are set out in Clause 7.4.
2.1.6 Inconsistency
In the event of any inconsistency between the Specification and any other part of this Agreement, this Agreement shall prevail to the extent of such inconsistency.
2.2 Propulsion Systems
Each of the Aircraft shall be equipped with either a set of IAE or CFMI Propulsion Systems as may be selected by the Buyer pursuant to sub-Clause 3.3.6 below.
2.3 Customisation Milestones Chart
As part of the Agreement, the Seller is I providing the Buyer with an agreed Customisation Milestones Chart setting out the minimum lead times prior to the Scheduled Delivery Month of the Aircraft, when a mutual agreement shall be reached (execution of a SCN) in order to integrate into the Specification, any items requested by the Buyer from the Specification Changes Catalogues made available by the Seller.
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3 PRICES
3.1 Basic Price of the Aircraft
3.1.1 The "Basic Price" of each Aircraft is the sum of:
(i) the Basic Price of the Airframe, and
(ii) the Basic Price of the Propulsion Systems.
3.2 Airframe Basic Price
3.2.1 The A319-100 Airframe Basic Price is the sum of:
(i) the basic price of the A319-100 Airframe as defined in the Standard Specification (excluding Buyer Furnished Equipment, but including specifically nacelles and thrust reversers), which is:
US$ [***]
([***])
(ii) the sum of the basic prices of all SCNs as set forth in Exhibit B-1 to the Agreement, which is:
US$ [***]
(US Dollars [***])
3.2.2 The A320-200 Airframe Basic Price is the sum of:
(iii) the basic price of the A320-200 Airframe as defined in the Standard Specification (excluding Buyer Furnished Equipment, but including specifically nacelles and thrust reversers), which is:
US$ [***]
([***])
(iv) the sum of the basic prices of all SCNs as set forth in Exhibit B-1 to the Agreement, which is:
US$ [***]
(US Dollars [***])
3.2.3 The Airframe Basic Price has been established in accordance with the average economic conditions prevailing in December 2003, January 2004
[***] Confidential treatment requested by AerCap Holdings N.V.
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and February 2004 and corresponding to a theoretical delivery in January 2005 - (the Base Period).
3.3 Propulsion Systems Basic Price
3.3.1 The A319 IAE Propulsion Systems
The Basic Price of the IAE V2524-A5 Propulsion System (excluding specifically nacelles and thrust reversers) for the A319 Aircraft, at delivery conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.2 The A319 CFMI Propulsion Systems
The Basic Price of the CFMI CFM56-5B6/P Propulsion System for the A319 Aircraft, at delivery conditions prevailing in January 2005 is:
US $ [***]
(US dollars [***]).
3.3.3 The A320 IAE Propulsion Systems
The Basic Price of a IAE V2527-A5 Propulsion System (excluding specifically nacelles and thrust reversers) for the A320 Aircraft, at delivery conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.4 The A320 CFMI Propulsion Systems
The Basic Price of a CFMI CFM56-5B4/P Propulsion System for the A320 Aircraft, at delivery conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.5 Propulsion Systems Reference Period
The Propulsion Systems Basic Price has been established in January 2005 delivery conditions and has been calculated from the Propulsion Systems Reference Price. The Propulsion Systems Reference Price is set forth in the [***] in Exhibit C2 and C3 for [***] respectively.
[***] Confidential treatment requested by AerCap Holdings N.V.
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3.3.6 Selection of Propulsion Systems
The Buyer shall notify the Seller in writing within six months from the date hereof of its initial selection of the Propulsion Systems to be installed on the Aircraft at Delivery. The Buyer shall then have the flexibility up to the first day of the [***] month prior to the Scheduled Delivery Month of each Aircraft to change its initial Propulsion Systems selection, by giving written notice of any such change to the Seller.
3.4 Final Price
With respect to each Aircraft, the Final Price of such Aircraft shall be the sum of:
(i) the Airframe Basic Price as revised as of the Delivery Date in accordance with Clause 4.1; plus
(ii) the aggregate of all increases or decreases to the Airframe Basic Price as agreed in any Specification Change Notice or part thereof applicable to the Airframe subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.1; plus
(iii) the Propulsion Systems Reference Price as revised as of the Delivery Date in accordance with Clause 4.2; plus
(iv) the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; plus
(v) any further amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller, in each case, relating to the Aircraft and specifically making reference to the Final Price of an Aircraft.
[***] Confidential treatment requested by AerCap Holdings N.V.
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4 PRICE REVISION
4.1 Revision of Airframe Basic Price
The Airframe Basic Price is subject to revision in accordance with the relevant Airframe Price Revision Formula up to and including the Delivery Date as set forth in the relevant attachment to this Agreement.
4.2 Revision of Propulsion Systems Reference Price
4.2.1 The Propulsion Systems Reference Price is subject to revision in accordance with the relevant Propulsion Systems Price Revision Formula up to and including the Delivery Date, as set forth in Part 2 of Exhibit C.
4.2.2 Modification of Propulsion Systems Reference Price and Propulsion Systems Price Revision Formula
The Propulsion Systems Reference Price, the prices of the related equipment and the Propulsion Systems Price Revision Formula are based on information received from the Propulsions Systems Manufacturer and are subject to amendment by the Propulsion Systems Manufacturer at any time prior to the Delivery Date. If the Propulsion Systems Manufacturer makes any such amendment, the amendment shall be automatically incorporated into this Agreement, and the Propulsion Systems Reference Price, the prices of the related equipment and the Propulsion Systems Price Revision Formula shall be adjusted accordingly. The Seller agrees to notify the Buyer as soon as it receives notice of any such amendment from the Propulsion Systems Manufacturer.
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5 PAYMENTS
5.1 Seller's Account
The Buyer shall pay the Predelivery Payments, the Balance of Final Price and/or any other amount due by the Buyer to the Seller, to the Seller's account:
Beneficiary Name: AIRBUS
account identification: [***]
with:
[***]
SWIFT: [***]
ABA: [***]
[***]
or to such other account as may be designated by the Seller in writing no later than three (3) Working Days prior to the date on which such payment is due.
5.2 Deposit
An amount equal to [***] US dollars (US$[***]) (the Deposit) per Aircraft specified in this Agreement already paid by the Buyer to the Seller prior to the date of execution of this Agreement shall be deducted from the first Predelivery Payment due under this Agreement, with respect to such Aircraft.
5.3 Predelivery Payments
5.3.1 With respect to each Aircraft, the Buyer shall pay Predelivery Payments to the Seller calculated on the Predelivery Payment Reference Price of the relevant Aircraft. The Predelivery Payment Reference Price is determined by the following formula:
A = Pb (1 + [***])
Where
A : The Predelivery Payment Reference Price for Aircraft to be delivered in year T;
T : the year of Delivery of the relevant Aircraft
[***] Confidential treatment requested by AerCap Holdings N.V.
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Pb : the Basic Price;
N : (T- 2005)
5.3.2 Such Predelivery Payments shall be made in accordance with the following schedule:
DUE DATE OF PAYMENTS |
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Upon signature of this Agreement |
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US $ [***] (less the Deposit) |
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On the first day of each of the [***] |
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Total Payment prior to Delivery |
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5.3.3 Any Predelivery Payment received by the Seller shall constitute an instalment in respect of the Final Price of the relevant Aircraft. The Seller shall be entitled to hold and use any Predelivery Payment as absolute owner thereof, subject only to (i) the obligation to deduct any such Predelivery Payment from the Final Price when calculating the Balance of Final Price or (ii) the obligation to repay to the Buyer an amount equal to the Predelivery Payments pursuant to any other provision of this Agreement.
5.3.4 If any Predelivery Payment is not received on the relevant due date specified in Clause 5.3.2 then, and in addition to any other rights and remedies available to Seller, the Seller shall have the right to set back the Scheduled Delivery Month for the relevant Aircraft, by a period of one (1) month for each thirty (30) days such payment is delayed.
Furthermore, if such delay is greater than sixty (60) days, the Seller shall have no obligation to deliver the relevant Aircraft within the Scheduled Delivery Month for such Aircraft, as modified pursuant to the preceding paragraph. Upon receipt of the full amount of all delayed Predelivery Payments, together with Default Interest pursuant to Clause 5.7, the Seller shall inform the Buyer of a new Scheduled Delivery Month for such Aircraft consistent with the Seller's other commitments and production capabilities.
5.4 Balance of Final Price
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5.4.1 With respect to each Aircraft, the Balance of Final Price payable by the Buyer to the Seller on the Delivery Date shall be the Final Price of such Aircraft less the amount of Predelivery Payments received by the Seller on or before the Delivery Date with respect to such Aircraft.
5.4.2 Upon receipt of the Seller's invoice, and immediately prior to Delivery, the Buyer shall pay to the Seller the Balance of Final Price with respect to such Aircraft.
5.5 Other Charges
Unless expressly stipulated otherwise, any other charges due under this Agreement other than those set out in Clauses 5.2, 5.3 and 5.4 shall be paid by the Buyer at the same time as payment of the Balance of Final Price or, if invoiced after the Delivery Date, within [***] days after receipt of the invoice by the Buyer.
5.6 Method of Payment
5.6.1 All payments provided for in this Agreement shall be made in the United States Dollars (USD) in immediately available funds.
5.6.2 All payments due to the Seller hereunder shall be made in full, without deduction or withholding of any kind. Consequently, the Buyer shall procure that the sums received by the Seller under this Agreement shall be equal to the full amounts expressed to be due to the Seller hereunder, without deduction or withholding on account of and free from any and all taxes, levies, imposts, dues or charges of whatever nature. If the Buyer is compelled by law to make any such deduction or withholding the Buyer shall pay such additional amounts as may be necessary in order that the net amount received by the Seller after such deduction or withholding shall be equal to the amounts which would have been received in the absence of such deduction or withholding and pay to the relevant taxation or other authorities within the period for payment permitted by applicable law, the full amount of the deduction or withholding. If the Seller receives a refund of any amount with respect to which the Buyer has paid an additional amount as described above the Seller shall pay to the Buyer, as soon as practicable after the refund has been made (but not before the Buyer has made all payments to the Seller required under this Clause), an amount equal to such refund, provided that after such payment the Seller shall be in no worse position in respect of its overall tax position than it would have been if no such payment had been made.
5.7 Default Interest
If any payment due to the Seller under this Agreement including but not limited to any predelivery payment, or deposit for the Aircraft as well as any payment for any spare parts, data, documents, training and services
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due to the Seller is not received within three (3) Working Days of the due date, without prejudice to the Seller's other rights under this Agreement or at law, the Seller shall be entitled to interest for late payment calculated on the amount due from but excluding such date up to and including the date when the payment is received by the Seller at a rate equal to LIBOR for six (6) months deposits in US Dollars (as published in the Reuters screen or its successor screen on the due date) plus [***] per annum.
5.8 Taxes
5.8.1 The amounts stated in this Agreement to be payable by the Buyer are exclusive of value added tax chargeable under the laws of the Delivery Location (VAT) and accordingly the Buyer shall pay any VAT chargeable in respect of supplies to the Buyer as contemplated by this Agreement provided that the Seller shall reasonably cooperate with the Buyer to mitigate the imposition of any tax liability on the Buyer with respect to such circumstances.
5.8.2 The Seller shall, in respect of the Aircraft, services, parts, instructions or data delivered or furnished hereunder (i) pay all taxes, duties or similar charges of any nature whatsoever, whenever and wheresoever levied, assessed, charged, collected for in connection with the execution of this Agreement and the fabrication, manufacture and assembly of the Aircraft, or the sale or delivery to the Seller of any component of the Aircraft by a sub-contractor, a Supplier or an Affiliate of the Seller in connection with [***].
5.8.3 The Buyer shall bear the costs of and pay any and all taxes, duties or similar charges of any nature whatsoever not assumed by the Seller under Clause 5.8.2 including but not limited to any duties or taxes due upon or in relation to the importation or registration of the Aircraft in the Buyer's country and/or any withholdings or deductions levied or required in the Buyer's country in respect of the payment to the Seller of any amount due by the Buyer hereunder.
5.9 Proprietary Interest
The Buyer shall not, by virtue of anything contained in this Agreement (including, without limitation, any Predelivery Payments hereunder, or any designation or identification by the Seller of a particular aircraft as an Aircraft to which any of the provisions of this Agreement refer) acquire any proprietary, insurable or other interest whatsoever in any Aircraft before Delivery of such Aircraft, as provided in this Agreement.
5.10 Set-Off
The Seller may set-off any matured obligation owed by the Buyer to the Seller and/or its Affiliates against any obligation (whether or not matured)
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owed by the Seller to the Buyer, regardless of the place of payment or currency. The Seller will promptly notify the Buyer in writing following the exercise by it of such right of set-off.
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6 MANUFACTURE PROCEDURE INSPECTION
6.1 Manufacture Procedure
Each Airframe shall be manufactured in accordance with the relevant requirements of the laws of the jurisdiction of incorporation of the Seller or of its relevant Affiliate as enforced by the Aviation Authority of such jurisdiction.
6.2 Inspection
6.2.1 Subject to providing the Seller with certificates evidencing compliance with the insurance requirements set forth in Clause 19, the Buyer or its duly authorised representatives (which may include, without limitation, a reasonable number of representatives from the Initial Operator with respect to any Aircraft) (the Buyer's Inspector(s)) shall be entitled to inspect the manufacture of each Airframe and all materials and parts obtained by the Seller for the manufacture of such Airframe on the following terms and conditions;
(i) any inspection shall be made according to a procedure to be agreed upon with the Buyer but shall be conducted pursuant to the Seller's own system of inspection as developed under the supervision of the relevant Aviation Authority;
(ii) the Buyer's Inspector(s) shall have access to such relevant technical data as is reasonably necessary for the purpose of the inspection;
(iii) any inspection and any related discussions with the Seller and other relevant personnel by the Buyer's Inspector(s) shall be at reasonable times during business hours and shall take place in the presence of relevant inspection department personnel of the Seller;
(iv) the inspections shall be performed in a manner not to unduly delay or hinder the manufacture or assembly of the Aircraft or the performance of this Agreement by the Seller or any other work in progress at the Manufacture Facilities.
6.2.2 Location of Inspections
The Buyer's Inspector(s) shall be entitled to conduct any such inspection at the relevant Manufacture Facility of the Seller or its relevant Affiliate and where possible at the Manufacture Facilities of the sub-contractors provided that if access to any part of the Manufacture Facilities where the Airframe manufacture is in progress or materials or parts are stored are restricted for security or confidentiality reasons, the Seller shall be allowed reasonable time to make the relevant items available elsewhere.
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6.3 Seller's Service for Buyer's Inspector(s)
For the purpose of the inspections, and commencing with the date of this Agreement until the Delivery Date of the final Aircraft hereunder, the Seller shall furnish without additional charge suitable space and office equipment (including reasonable telephone communications) in or conveniently located with respect to the Delivery Location for the use of a reasonable number of Buyer's Inspector(s).
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7 CERTIFICATION
7.1 Type Certification
Each Aircraft is type certificated under European Aviation Safety Agency (EASA) procedures for joint certification in the transport category. The Seller has obtained the relevant type certificate (the Type Certificate) to allow the issuance of the Export Airworthiness Certificate.
The Seller confirms that it has obtained an FAA Type Certificate (transport category) for the Aircraft pursuant to Part 21 and in compliance with the applicable provisions of Part 25 of the US Federal Aviation Regulations.
7.2 Export Airworthiness Certificate
7.2.1 Each Aircraft will be delivered to the Buyer with the Export Airworthiness Certificate and shall have incorporated all means of compliance with all applicable EASA and FAA Airworthiness Directives, on a terminating basis if available, and in a condition enabling the Buyer (or an eligible person under then applicable law) to obtain at time of Delivery a standard airworthiness certificate issued pursuant to Part 21 of the US Federal Aviation Regulations.
7.2.2 If any law or regulation is promulgated or becomes effective or an interpretation of any law is issued before an Aircraft purchased under this Agreement is Ready for Delivery to the Buyer and which law, regulation or interpretation requires any change to the Specification as it may be modified pursuant to Clause 2 in order to obtain the Type Certificates and Export Airworthiness Certificate as hereinabove provided for such Aircraft, the Seller shall make the requisite variation or modification.
The effect on price of such a change shall be borne:
(i) by the Seller insofar as it results from laws, regulations or interpretations that are to be complied with by the Seller before the Delivery of the relevant Aircraft. In addition, the Seller will provide the Buyer with the kits and labor necessary to terminate any Airworthiness Directive or other mandatory continuing airworthiness information issued by the state of manufacture under Ch. 4.2 of Annex 8 to the international Convention on Civil Aviation that has been issued prior to the Delivery of the relevant Aircraft but which is not required to be terminated by the Seller, provided that such kits have been defined pursuant to the then applicable airworthiness requirement described above.
(ii) by the Buyer for any operational requirements to be complied with by any Operator or changes other than those set forth in sub-paragraph (i) above.
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If the Seller anticipates that the Scheduled Delivery Month of any Aircraft will be postponed by reason of such change it shall promptly notify the Buyer and the provisions of Clause 10 (Excusable Delay) will apply.
In the event of such a variation or modification being made pursuant to this sub-Clause, the parties hereto shall sign a SCN, in which the effects, if any, upon performances, weights, interchangeability and Delivery shall be specified and agreed between the Buyer and the Seller.
7.2.3 Notwithstanding the provisions of sub-Clause 7.2.2, if any such change is applicable to Propulsion Systems, engine accessories, quick engine change units or thrust reversers, or to Buyer Furnished Equipment, the costs of such change shall be borne in accordance with such arrangements as may be made separately between the Buyer and the Propulsion System and/or Buyer Furnished Equipment manufacturers.
7.2.4 The Seller shall as far as practicable take into account the information available to it concerning any proposed new regulations of the Seller's Aviation Authorities in order to minimize the costs of changes which may appear necessary to obtain the Export Airworthiness Certificate after such proposed new regulations have become mandatory.
7.2.5 In the event that type certification has not been previously undertaken by the Seller in a country where the Buyer intends to lease an Aircraft to an Initial Operator, then subject to due notice from the Buyer to the Seller at least nine months prior to the month of delivery of the relevant Aircraft (or such lesser period that the Seller acting reasonably agrees is practicable), the Seller shall use all reasonable efforts to obtain such type certification, and shall not charge the Buyer with its costs for the necessary documentation and justification work to demonstrate the aircraft specification compliance for such type certification purposes.
7.2.6 Upon the Buyer's request, to be provided to the Seller with adequate notice, the Seller shall identify the changes that may be required in order for an Aircraft to be eligible for a standard airworthiness certificate to be issued by the airworthiness authority designated by the Buyer for the registration of such Aircraft (the Designated Airworthiness Authority).
Where the Buyer's Designated Airworthiness Authority requires a modification to comply with additional import aviation requirements and/or supply of additional data, prior to the issuance of the Export Airworthiness Certificate, the Seller shall incorporate such modification and/or provide such data at costs to be borne by the Buyer, provided that the Buyer's request is made at a time reasonably in advance of the Scheduled Delivery Month for such Aircraft and in accordance with the Seller's lead times for specification changes.
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Such changes shall be made the subject of an SCN to be agreed between the parties, which shall specify the corresponding effect, if any, on the price and time of Delivery of the relevant Aircraft.
If the Seller anticipates that the Scheduled Delivery Month of the relevant Aircraft will be postponed by reason of such change it shall promptly notify the Buyer and the Scheduled Delivery Month of such Aircraft as provided in sub-Clause 9.1 will be extended to the extent of such postponement.
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8 BUYER'S TECHNICAL ACCEPTANCE
8.1 Technical Acceptance Process
Prior to Delivery each Aircraft shall undergo the Technical Acceptance Process. The Seller will give to the Buyer not less than [***] days written notice of the proposed time when the Technical Acceptance Process will commence. Completion of the Technical Acceptance Process shall demonstrate the satisfactory functioning of the relevant Aircraft and shall be deemed to demonstrate compliance with the Specification. Should it be established that the relevant Aircraft does not comply with the Technical Acceptance Process requirements, the Seller shall without hindrance from the Buyer be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the relevant Aircraft to such further Technical Acceptance Process as is necessary to demonstrate the elimination of the non-compliance . The Seller will keep the Buyer informed as to progress with such changes and, as soon as practicable thereafter, will be entitled to resubmit the relevant Aircraft for new acceptance tests to demonstrate the elimination of such non-compliance or defect, such tests to be held and carried out in accordance with this Clause 8.
The Technical Acceptance Process shall, without limitation, include a technical acceptance flight which shall not exceed three (3) hours duration (save as may be extended by agreement between the Buyer and the Seller).
8.2 Buyer's Attendance
8.2.1 The Buyer shall be entitled to elect to attend the Technical Acceptance Process.
8.2.2 If the Buyer elects to attend the Technical Acceptance Process, the Buyer;
(i) shall co-operate in complying with the reasonable requirements of the Seller with the intention of completing the Technical Acceptance Process within [***] Working Days after its commencement;
(ii) may have a maximum of four (4) of the Buyer's representatives (with no more than three (3) such representatives having access to the cockpit at any one time) accompany the Seller's representatives on a technical acceptance flight and during such flight the Buyer's representatives shall comply with the instructions of the Seller's representatives.
8.2.3 If the Buyer does not attend and/or fails to co-operate in the Technical Acceptance Process, the Seller shall be entitled to complete the Technical Acceptance Process and the Buyer shall be deemed to have accepted the
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Technical Acceptance Process as satisfactory in all respects and the Seller will furnish such data with respect to such tests as the Buyer may reasonably request, [***]
8.3 Certificate of Acceptance
Once the relevant Aircraft is Ready for Delivery, the Buyer shall, on or before the Delivery Date, sign and deliver to the Seller a Certificate of Acceptance in respect of such Aircraft.
8.4 Finality of Acceptance
Delivery by the Buyer of a signed and dated Certificate of Acceptance with respect to the relevant Aircraft will be irrevocable and the Buyer shall have no right to revoke such acceptance for any reason, whether known or unknown to the Buyer at the time of acceptance.
8.5 Seller's Use of Aircraft
The Seller will be entitled to use, without compensation to the Buyer or other liability, each Aircraft prior to its Delivery as may be necessary to obtain the certificates required under Clause 6 hereof, and such use will not affect the Buyer's obligation to accept Delivery of any Aircraft hereunder. [***]
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9 DELIVERY
9.1 Delivery Schedule
9.1.1 Subject to the provisions of this Agreement, the Seller shall have each Aircraft Ready for Delivery at the Delivery Location within the months specified hereto.
Each such month shall be, with respect to the corresponding Aircraft, the Scheduled Delivery Month for such Aircraft.
Year |
|
A319 |
|
A320 |
|
Total |
|
2007 |
|
[***] |
|
[***] |
|
[***] |
|
2008 |
|
[***] |
|
[***] |
|
[***] |
|
2009 |
|
[***] |
|
[***] |
|
[***] |
|
2010 |
|
[***] |
|
[***] |
|
[***] |
|
TOTAL |
|
25 |
|
45 |
|
70 |
|
9.1.2 The Seller shall give the Buyer at least [***]. Thereafter the Seller shall notify the Buyer of any change in such date necessitated by the conditions of manufacture or flight. In addition, the Seller shall give the Buyer at least [***] days prior written notice of the anticipated week during which the relevant Aircraft shall be Ready for Delivery.
9.2 Delivery
9.2.1 The Buyer shall send its representatives to the Delivery Location to take Delivery of, and collect, the relevant Aircraft within seven (7) days after the date on which such Aircraft is Ready for Delivery (the Delivery Period) and shall pay the Balance of the Final Price on or before the Delivery Date.
9.2.2 Title to and risk of loss of or damage to the relevant Aircraft will pass to the Buyer upon Delivery following the execution and delivery of the Certificate of Acceptance by the Buyer and upon payment of the Final Price for such Aircraft. The Seller shall deliver and transfer title to the relevant Aircraft free and clear of all encumbrances and will provide the Buyer with such appropriate documents of title (such as a full warranty Bill of Sale (except for warranties in respect of any Buyer Furnished Equipment converted to Seller Furnished Equipment and other Buyer Furnished Equipment, which shall be as received by the Seller from the suppliers of such Buyer Furnished Equipment), certificate of transfer, or other documents) as the Buyer may reasonably request.
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9.2.3 Should the Buyer fail to:
(i) deliver the signed Certificate of Acceptance to the Seller, when required to do so pursuant to Clause 8.3, within the Delivery Period; or
(ii) pay the Balance of the Final Price for the relevant Aircraft to the Seller on or before the Delivery Date;
(iii) within two (2) Working Days after Delivery of the relevant Aircraft, remove such Aircraft from the Delivery Location for whatever reason (except for reasons directly attributable to the Seller),
then the Buyer will on demand reimburse the Seller for all reasonable costs and expenses (including, without limitation, costs and expenses attributable to storage, preservation and protection, insurance and taxes) sustained by the Seller and resulting from any such delay or failure. Such reimbursement will be in addition to any other rights that the Seller may have as a result of any such delay or failure.
9.3 Fly Away
9.3.1 The Buyer and the Seller shall co-operate to obtain any licenses which may be required by the Aviation Authority of the Delivery Location for the purpose of exporting the Aircraft. The Seller shall not charge the Buyer for such assistance.
9.3.2 Except for expenses to be borne by the Seller as provided in Clause 5.8.2 of this Agreement, all expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery shall be borne by the Buyer. The Buyer shall make direct arrangements with the supplying companies for the fuel required for all post-Delivery flights [***]. In addition, it is understood between the parties that at delivery the Aircraft should be serviced with all lubricating and hydraulic fluid levels full to the normal operating levels.
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10 EXCUSABLE DELAY
10.1 The Buyer acknowledges that the Aircraft are to be manufactured by Seller in performance of this Agreement and that the Scheduled Delivery Months are based on the assumption that there shall be no delay due to causes beyond the control of the Seller. Accordingly, Seller shall not be responsible for any delay in the Delivery of the Aircraft or delay or interruption in the performance of the other obligations of the Seller hereunder due to causes beyond its control, and not occasioned by its fault or negligence including (but without limitation) acts of God or the public enemy, war, civil war, warlike operations, terrorism, insurrections or riots, fires, explosions, natural disasters, compliance with any applicable foreign or domestic governmental regulation or order, labour disputes causing cessation, slowdown or interruption of work, inability after due and timely diligence to procure materials, equipment or parts, general hindrance in transportation or failure of a sub-contractor or Supplier to furnish materials, components, accessories, equipment or parts, for any of the reasons referred to above. Any delay or interruption resulting from any of the foregoing causes (including any delay pursuant to Clause 7.2.2) is referred to as an Excusable Delay.
10.2 If an Excusable Delay occurs:
(i) the Seller shall notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; [***]
(ii) the Seller shall not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer;
(iii) the Seller shall not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; and
(iv) the Seller shall as soon as practicable after the removal of the cause of the delay resume performance of its obligations under this Agreement and in particular shall promptly notify to the Buyer the revised Scheduled Delivery Month for the relevant Aircraft, which shall be determined in a non discriminatory manner compared with other customers of the Seller similarly affected.
10.3 Termination on Excusable Delay
10.3.1 If the Delivery of any Aircraft is delayed as a result of an Excusable Delay for a period of more than [***] after the last day of the Scheduled Delivery Month of such Aircraft as at the commencement of such Excusable Delay, the Buyer will be entitled to terminate this Agreement with respect only to
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the Aircraft so affected by giving written notice to the Seller within thirty (30) days after the expiry of such [***] period.
In the event that such delay will continue for an additional [***] month period after the expiration of such [***] months period, either party will have the option to terminate this Agreement with respect only to the Aircraft so affected by giving written notice to the other party within [***] days after the expiry of such additional [***] month period.
The Buyer shall not be entitled to terminate this Agreement pursuant to this Clause if the Excusable Delay results from a cause within its control.
Such termination will discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft, except that the Seller will repay to the Buyer an amount equal to the entire amount of any Predelivery Payments received from the Buyer hereunder with respect to such affected Aircraft, [***].
10.3.2 If, in respect of any Aircraft, the Seller concludes that the Delivery of such Aircraft shall be delayed for more than [***] months after the last day of the Scheduled Delivery Month of such Aircraft as at the commencement of such Excusable Delay, due to an Excusable Delay and as a result thereof reschedules Delivery of such Aircraft to a date or month reflecting such delay then the Seller shall promptly notify the Buyer in writing to this effect and shall include in such notification the new Scheduled Delivery Month. Either party may thereupon terminate this Agreement with respect to such Aircraft by giving written notice to the other party within [***] days after receipt by the Buyer of the notice of anticipated delay.
Such termination will discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft, except that the Seller will repay to the Buyer an amount equal to the entire amount of any Predelivery Payments received from the Buyer hereunder with respect to such affected Aircraft, [***].
10.3.3 If this Agreement shall not have been terminated with respect to the delayed Aircraft during the [***] day period referred to in either Clause 10.3.1 or 10.3.2 above, then the Seller shall be entitled to reschedule Delivery and the new Scheduled Delivery Month shall be notified to the Buyer and shall be binding on the parties.
10.4 Total Loss, Destruction or Damage
If prior to Delivery, any Aircraft is lost, destroyed or in the reasonable opinion of the Seller is damaged beyond repair (Total Loss Aircraft), the Seller shall notify the Buyer to this effect, as soon as practicable, but in any event, within one (1) month of such occurrence. The Seller shall include in said notification (or as soon after the issue of the notice as such
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information becomes available to the Seller) the earliest date consistent with the Sellers other commitments and production capabilities that an aircraft to replace the Aircraft may be delivered to the Buyer and the Scheduled Delivery Month shall be extended as specified in the Sellers notice to accommodate the delivery of the replacement aircraft; provided, however, that in the event the specified extension of the Scheduled Delivery Month is to a month exceeding [***] months after the last day of the original Scheduled Delivery Month then this Agreement shall terminate with respect to said Aircraft unless:
(i) the Buyer notifies the Seller within one (1) month of the date of receipt of the Sellers notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Sellers notice; and
(ii) the parties execute an amendment to this Agreement recording the variation in the Scheduled Delivery Month;
provided, however, that nothing herein shall require the Seller to manufacture and deliver a replacement aircraft if such manufacture would require the reactivation of its production line for the model or series of aircraft which includes the Aircraft purchased hereunder.
In the event that the Agreement with respect to such Total Loss Aircraft is terminated pursuant to this sub-Clause 10.4, the obligations and liabilities of the parties hereunder with respect to such Aircraft will be discharged. The Seller will repay to the Buyer an amount equal to the entire amount of any Predelivery Payments received from the Buyer hereunder with respect to any such Total Loss Aircraft, [***].
10.5 Termination Rights Exclusive
In the event that this Agreement shall be terminated as provided for under the terms of Clauses 10.3 or 10.4, such termination shall discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft and undelivered material, services, data or other items applicable thereto and to be furnished hereunder and neither party shall have any claim against the other for any loss resulting from such non-delivery. The Seller shall in no circumstances have any liability whatsoever for Excusable Delay other than as set forth in this Clause 10.
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11 NON-EXCUSABLE DELAY
11.1 Liquidated Damages
Should any of the Aircraft not be Ready for Delivery to the Buyer [***] and such delay is not as a result of an Excusable Delay or Total Loss (a Non-Excusable Delay), then the Buyer shall have the right to claim, and the Seller shall pay upon demand by way of liquidated damages to the Buyer, the following amounts:
(a) In the event that the Seller has notified the Buyer of the anticipated delay at the latest three (3) months prior to the first day of the Scheduled Delivery Month (as it may have been amended by mutual agreement): US Dollars [***] (US$ [***]) for each day of delay commencing on the [***] day following the last day of the Scheduled Delivery Month and ending on the day of Delivery of the relevant Aircraft;
(b) In the event that the Seller has notified the Buyer of the anticipated delay less than three (3) months prior to the first day of the Scheduled Delivery Month (as it may have been amended by mutual agreement) but prior to the date on which the Seller informs the Buyer of the Notified Delivery Date: US Dollars [***] (US$ [***]) for each day of delay commencing on the [***] day following the last day of the Scheduled Delivery Month and ending on the day of Delivery of the relevant Aircraft;
(c) In the event that the Seller has notified the Buyer of the anticipated delay on or after the date on which the Seller informs the Buyer of the Notified Delivery Date : US Dollars [***] (US$ [***]) for each day of delay which falls within the Scheduled Delivery Month, commencing on the [***] day following the Notified Delivery Date and increasing to US Dollars [***] (US$ [***]) for each such day of delay which continues beyond the last day of the Scheduled Delivery Month;
The amount of such liquidated damages shall in no event exceed the total of US Dollars [***] (US$[***]) in respect of any one Aircraft.
11.2 [***]
In the event that such delay in Delivery exceeds [***] months, the Buyer will have the further right, exercisable by written notice to the Seller given no more than one (1) month after such [***] month period, to terminate this Agreement in respect only of the Aircraft that is the subject of such delay, whereupon the Seller will pay the Buyer, within ten (10) Working Days after receipt of such notice, an amount equal to [***], together with interest in an amount equal to LIBOR for six month deposits of a similar amount
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plus [***]% per cent over the period from date of receipt of the relevant Predelivery Payment to date of reimbursement hereunder. Such payment will be in addition to any amount due pursuant to sub Clause 11.1 above.
11.3 Termination
In the event that (i) the Buyer has not exercised its right to terminate under Clause 11.2 hereof and (ii) such subsequent delay in Delivery exceeds twelve (12) months, either party will have the right, exercisable by written notice to the other party given no more than one (1) month after such twelve (12) month period, to terminate this Agreement in respect only of the Aircraft that is subject to such delay, whereupon the Seller will pay the Buyer, within ten (10) Working Days after such notice, an amount equal to all Predelivery Payments made by the Buyer to the Seller in relation to such Aircraft, together with interest in an amount equal to LIBOR for six month deposits of a similar amount plus [***]% per cent over the period from date of receipt of the relevant Predelivery Payment to date of reimbursement hereunder. Such payment will be in addition to any amount due pursuant to sub-Clause 11.1 above.
11.4 [***].
11.5 Limitation of Damages
The Buyer and the Seller agree that payment by the Seller of the amounts due pursuant to Clause 11.1 shall be considered to be liquidated damages and have been calculated to compensate the Buyer for its entire damages for all losses of any kind due to Non-Excusable Delay. The Seller shall not in any circumstances have any liability whatsoever for Non-Excusable Delay other than as set forth in this Clause 11.
11.6 Remedies
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 11 WHERE THE DELAY REFERRED TO IN THIS CLAUSE 11 IS CAUSED BY THE NEGLIGENCE OR WILFULL MISCONDUCT OF THE BUYER OR ITS REPRESENTATIVES.
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12 WARRANTIES AND SERVICE LIFE POLICY
This Clause covers the terms and conditions of the warranty and service life policy.
12.1 Standard Warranty
12.1.1 Nature of Warranty
Subject to the conditions and limitations as hereinafter provided for and except as provided for in Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and all Warranted Parts as defined hereinafter shall at Delivery to the Buyer:
(i) be free from defects in material;
(ii) be free from defects in workmanship, including without limitation processes of manufacture;
(iii) be free from defects in design (including without limitation the selection of materials) having regard to the state of the art at the date of such design; and
(iv) be free from defects arising from failure to conform to the Specification, except to those portions of the Specification relating to performance or where it is expressly stated that they are estimates, approximations or design aims.
For the purpose of this Agreement the term Warranted Part shall mean any Seller proprietary component, equipment, accessory or part as installed on an Aircraft at Delivery of such Aircraft and
(a) which is manufactured to the detailed design of the Seller or a subcontractor of the Seller and
(b) which bears a part number of the Seller at the time of such delivery.
12.1.2 Exclusions
The warranties set forth in Clause 12.1.1 shall not apply to Buyer Furnished Equipment, nor to the Propulsion Systems (in the case of CFM Propulsion System, excluding nacelles and thrust reversers), nor to any component, equipment, accessory or part purchased by the Seller that is not a Warranted Part except that:
(i) any defect in the Sellers workmanship incorporated in the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturer
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of such item that invalidates any applicable warranty from such manufacturer, shall constitute a defect in workmanship for the purpose of this Clause and be covered by the warranty set forth in sub-Clause 12.1.1(ii); and
(ii) any defect inherent in the Sellers design of the installation, in view of the state of the art at the date of such design, which impair the use of such item shall constitute a defect in design for the purpose of this Clause and be covered by the warranty set forth in sub-Clause 12.1.1(iii).
12.1.3 Warranty Period
The warranties contained in Clauses 12.1.1 and 12.1.2 shall be limited to those defects which become apparent within thirty six (36) months after Delivery of the affected Aircraft (Warranty Period).
12.1.4 Buyers Remedy and Sellers Obligation
12.1.4.1 The Buyers remedy and the Sellers obligation and liability under Clauses 12.1.1 and 12.1.2 are limited to the [***], repair, replacement or correction of any Warranted Part which is defective [***] or to the supply of modification kits rectifying the defect, at the Sellers expense and option.
The Seller may equally at its option furnish a credit to the Buyer equal to the price at which the Buyer is entitled to purchase a replacement for the defective Warranted Part.
12.1.4.2 In the event of a defect covered by sub-Clauses 12.1.1(iii), 12.1.1(iv) and 12.1.2(ii) becoming apparent within the Warranty Period and the Seller being obliged to correct such defect, the Seller shall also, if so requested by the Buyer, make such correction in any Aircraft which has not yet been delivered to the Buyer; provided, however,
(i) that the Seller shall not be responsible nor deemed to be in default on account of any delay in Delivery of any Aircraft or otherwise, in respect of the performance of this Agreement due to the Sellers undertaking to make such correction and provided further
(ii) that, rather than accept a delay in the Delivery of any such Aircraft, the Buyer and the Seller may agree to deliver such Aircraft with subsequent correction of the defect by the Buyer at the Sellers expense, or the Buyer may elect to accept Delivery and thereafter file a warranty claim as though the defect had become apparent immediately after Delivery of such Aircraft.
12.1.4.3 In addition to the remedies setforth in Clauses 12.1.4.1 and 12.1.4.2, the Seller shall reimburse the direct labor costs spent by the Buyer in
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performing inspections of the Aircraft to determine whether or not a defect exists in any Warranted Part within the Warranty Period or until the corrective technical solution removing the need for the inspection is provided by the Seller.
The above commitment is subject to the following conditions:
(i) such inspections are recommended by a Seller Service Bulletin to be performed within the Warranty Period;
(ii) the inspection is performed outside of a scheduled maintenance check as recommended by the Sellers Maintenance Planning Document;
(iii) the reimbursement shall not apply for any inspections performed as an alternative to accomplishing corrective action when such corrective action has been made available at no charge to the Buyer and such corrective action could have reasonably been accomplished by the Buyer at the time such inspections are performed or earlier,
(iv) the labor rate to be used for the reimbursement shall be labor rate defined in Clause 12.1.7, and
(v) the manhours used to determine such reimbursement shall not exceed the Sellers reasonable estimate of the manhours required by the Buyer for such inspections unless reasonably proven that more man-hours than the Sellers reasonable estimate were required.
12.1.5 Warranty Claim Requirements
Each Buyers warranty claim (Warranty Claim) shall be considered by the Seller only if the following conditions are first fulfilled:
(i) the defect having become apparent within the Warranty Period;
(ii) the Buyer having submitted to the Seller evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter embraced within this Clause 12.1, and that such defect has not resulted from any act or omission of the Buyer, including but not limited to, any failure to operate and maintain the affected Aircraft or part thereof in accordance with the standards set forth or any matter covered in Clause 12.1.10;
(iii) the Buyer having returned as soon as practicable the Warranted Part claimed to be defective to the repair facilities as may be designated by the Seller, except when the Buyer elects to repair a
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defective Warranted Part in accordance with the provisions of Clause 12.1.7;
(iv) the Seller having received a Warranty Claim as set forth in Clause 12.1.6.
12.1.6 Warranty Administration
The warranties set forth in Clause 12.1 shall be administered as hereinafter provided for:
(i) Claim Determination
Warranty Claim determination by the Seller shall be reasonably based upon the claim details, reports from the Sellers local representative, historical data logs, inspection, tests, findings during repair, defect analysis and other suitable documents.
(ii) Transportation Costs
Transportation costs for sending a defective Warranted Part to the facilities designated by the Seller and for the return therefrom of a repaired or replaced Warranted Part shall be borne by the Buyer.
(iii) Return of an Aircraft
In the event of the Buyer desiring to return an Aircraft to the Seller for consideration of a Warranty Claim, the Buyer shall notify the Seller of its intention to do so and the Seller shall, prior to such return, have the right to inspect such Aircraft and thereafter, without prejudice to its rights hereunder, to repair such Aircraft, at its sole option, either at the Buyers facilities or at another place acceptable to the Seller. Return of any Aircraft by the Buyer to the Seller and return of such Aircraft to the Buyers facilities shall be at the Buyers expense.
(iv) On-Aircraft Work by the Seller
In the event that a defect subject to this Clause 12.1 may justify the dispatch by the Seller of a working team to repair or correct such defect through the embodiment of one or several Sellers Service Bulletins at the Buyers facilities, or in the event of the Seller accepting the return of an Aircraft to perform or have performed such repair or correction, then the labor costs for such on-Aircraft work are to be borne by the [***].
All related expenses, including but not limited to reasonable travel and living expenses, in excess of the labour costs as defined
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above, incurred in performing such repair or correction shall be borne by the Buyer, unless otherwise mutually agreed.
The condition which has to be fulfilled for on-Aircraft work by the Seller is that in the opinion of the Seller, the work necessitates the technical expertise of the Seller as manufacturer of the Aircraft.
If said condition is fulfilled and if the Seller is requested to perform the work, the Seller and the Buyer shall agree on a schedule and place for the work to be performed.
(v) Warranty Claim Substantiation
In connection with each claim by the Buyer made under this Clause 12.1, the Buyer shall file a warranty claim on the Buyers form within sixty (60) days after a defect became apparent. Such form must contain at least the following data:
a) description of defect and action taken, if any,
b) date of incident and/or removal date,
c) description of the defective part,
d) part number,
e) serial number (if applicable),
f) position on Aircraft,
g) total flying hours or calendar time, as applicable at the date of defect appearance,
h) time since last shop visit at the date of defect appearance,
i) manufacturer serial number (Manufacturers Serial Number) of the Aircraft and/or its registration,
j) Aircraft total flying hours and/or number of landings at the date of defect appearance,
k) Warranty Claim number,
l) date of Warranty Claim,
m) delivery date of Aircraft or part to the Buyer, Warranty Claims are to be addressed as follows:
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AIRBUS
CUSTOMER SERVICE DIRECTORATE
WARRANTY ADMINISTRATION
Rond-Point Maurice Bellonte
B.P. 33
F-31707 BLAGNAC CEDEX
FRANCE
(vi) Replacements
Components, equipment, accessories or parts, which the Seller has replaced pursuant to this Clause, shall become the Sellers property. The replacement components, equipment, accessories or parts provided by the Seller to the Buyer pursuant to this Clause shall become the Buyers property.
(vii) Sellers Reply and/or Rejection
The Seller shall use all reasonable endeavours to reply to any Warranty Claim within fourteen (14) days of receipt. In case of rejection of any Warranty Claim, the Seller shall in addition provide reasonable written substantiation thereof In the event that such Warranty Claim is reasonably shown to be unjustified, the Buyer shall refund to the Seller reasonable inspection and test charges incurred in connection therewith.
(viii) Sellers Inspection
The Seller shall have the right to inspect the affected Aircraft and documents and other records relating thereto in the event of any Warranty Claim under this Clause 12.1.
(ix) Turn-Around Time
The Seller will endeavor to repair defective Warranted Parts within fifteen (15) days of receipt of such item(s) at the repair facilities designated by the Seller, and if such repair is not effected within such fifteen (15) day period, the Seller will supply a free forward exchange of the items in question.
12.1.7 lnhouse Warranty
(i) Sellers Authorization
The Seller hereby authorizes the Buyer to perform the repair of Warranted Parts (Inhouse Warranty) subject to the terms of this Clause 12.1.7.
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(ii) Conditions for Sellers Authorization
The Buyer shall be entitled to repair such Warranted Parts only:
if the Buyer notifies the Sellers Representative of its intention to perform Inhouse Warranty repairs before any such repairs are started where the estimated cost of such repair is in excess of US Dollars [***] (US$ [***]). The Buyers notification shall include sufficient detail regarding the defect, estimated labor hours and material to allow the Seller to ascertain the reasonableness of the estimate. The Seller agrees to use all reasonable efforts to ensure a prompt response and shall not unreasonably withhold authorization;
if adequate facilities and qualified personnel are available to the Buyer;
in accordance with the Sellers written instructions set forth in the applicable Sellers technical documentation;
to the extent specified by the Seller, or, in the absence of such specification, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause 12.1.10.
(iii) Sellers Rights
The Seller shall have the right to have any Warranted Part, or any part removed therefrom, claimed to be defective, returned to the Seller, as set forth in sub-Clause 12.1.6(ii) if, in the judgement of the Seller, the nature of the defect requires technical investigation. The Seller shall further have the right to have a representative present during the disassembly, inspection and testing of any Warranted Part claimed to be defective, subject to its presence being practical and not unduly delaying the repair.
(iv) In house Warranty Claim Substantiation
Claims for In house Warranty credit shall contain the same information as that required for Warranty Claims under sub-Clause 12.1.6(v) and in addition shall include:
a) a report of technical findings with respect to the defect,
b) for parts required to remedy the defect:
part numbers,
serial numbers (if applicable),
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parts description,
quantity of parts,
unit price of parts,
related Sellers or third partys invoices (if applicable),
total price of parts,
c) detailed number of labor hours,
d) Inhouse Warranty Labor Rate,
e) total claim value.
(v) Credit
The Buyers account shall be credited with an amount equal to the mutually agreed direct labor costs expended in performing the repair of a Warranted Part and to the direct costs of materials incorporated in said repair.
For the determination of direct labor costs only manhours spent on removal from the Aircraft, disassembly, inspection, repair, reassembly, and final inspection and test of the Warranted Part and reinstallation thereof on the Aircraft are permissible. Any man hour required for maintenance work concurrently being carried out on the Aircraft or Warranted Part is not included.
The manhours permissible above shall be multiplied by an agreed labor rate, (Inhouse Warranty Labour Rate) and representing the Buyers composite labor rate meaning the average hourly rate (excluding all fringe benefits, premium time allowances, social charges, business taxes and the like) paid to the Buyers employees whose jobs are directly related to the performance of the repair.
Direct material costs are determined by the prices at which the Buyer acquired such material, excluding any parts and materials used for overhaul and as may be furnished by the Seller at no charge.
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(vi) Limitation
The Buyer shall in no event be credited for repair costs (including labor and material) in excess of [***] per cent ([***]%) of the current catalogue price for a replacement of the defective Warranted Part,
or
where the repair cost (including labor and material) is in excess of US Dollars [***] (US$ [***]) unless previously approved by the Seller in accordance with sub-Clause 12.1.7(ii).
(vii) Scrapped Material
The Buyer shall retain any defective Warranted Part beyond economic repair and any defective part removed from a Warranted Part during repair for a period of either [***] days after the date of completion of repair or [***] days after submission of a claim for Inhouse Warranty credit relating thereto, whichever is longer. Such parts shall be returned to the Seller within [***] days of receipt of the Sellers request to that effect.
Notwithstanding the foregoing, the Buyer may scrap any such defective parts which are beyond economic repair and not required for technical evaluation locally with the agreement of the Sellers local representative. Scrapped Warranted Parts shall be evidenced by a record of scrapped material certified by an authorized representative of the Buyer.
12.1.8 Standard Warranty Transferability
The warranties provided for in this Clause 12.1 for any Warranted Part shall accrue to the benefit of any airline in revenue service, other than the Buyer, if the Warranted Part enters into the possession of any such airline as a result of a pooling or leasing agreement between such airlines and the Buyer, in accordance with the terms and subject to the limitations and exclusions of the foregoing warranties, and to the extent permitted by any applicable law or regulations.
12.1.9 Warranty for Corrected, Replaced or Repaired Warranted Parts
Whenever any Warranted Part which contains a defect for which the Seller is liable under Clause 12.1 has been corrected, replaced or repaired pursuant to the terms of this Clause 12.1, the period of the Sellers warranty with respect to such corrected, replaced or repaired Warranted Part whichever may be the case, shall be the remaining portion of the original Warranty Period of the repaired or replaced Warranted Part, or twelve months, whichever is last to expire.
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12.1.10 Accepted Industry Standard Practices - Normal Wear and Tear
The Buyers rights under this Clause 12.1 are subject to the Aircraft and each component, equipment, accessory and part thereof being maintained, overhauled, repaired, and operated in accordance with accepted industry standard practices, all technical documentation and any other instructions issued by the Seller and the Suppliers and the Propulsion Systems Manufacturer and all applicable rules, regulations and directives of relevant Aviation Authorities.
12.1.10.1 The Sellers liability under this Clause 12.1 shall not extend to normal wear and tear nor to:
(i) any Aircraft or component, equipment, accessory or part thereof which has been repaired, altered or modified after Delivery except by the Seller or in a manner approved by the Seller;
(ii) any Aircraft or component, equipment, accessory or part thereof which has been operated in a damaged state;
(iii) any component, equipment, accessory and part from which the trademark, name, part or serial number or other identification marks have been removed;
unless in any such case (except in the case of (iii) above) the Buyer submits reasonable evidence to the Seller that the defect did not arise from nor was contributed to by any one or more of the said causes.
12.2 Seller Service Life Policy
12.2.1 In addition to the warranties set forth in Clause 12.1, the Seller further agrees that should any item listed in Exhibit F (Item) sustain any breakage or defect which can reasonably be expected to occur on a fleetwide basis, and which materially impairs the utility of the Item (Failure), and subject to the general conditions and limitations set forth in Clause 12.2.4, then the provisions of this Clause 12.2 (Seller Service Life Policy) shall apply.
12.2.2 Periods and Sellers Undertakings
The Seller agrees that if a Failure occurs in an Item before the Aircraft in which such Item has been originally installed has completed [***] flying hours, or has completed [***] flight cycles, or within [***] years after the Delivery of said Aircraft to the Buyer, whichever shall first occur, the Seller shall at its own discretion and as promptly as practicable and with the Sellers financial participation as hereinafter provided either
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12.2.2.1 design and furnish to the Buyer a correction for such Item with a Failure and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or,
12.2.2.2 replace such Item.
12.2.3 Sellers Participation in the Costs
Any part or Item which the Seller is required to furnish to the Buyer under this Service Life Policy in connection with the correction or replacement of an Item shall be furnished to the Buyer with the Sellers financial participation determined in accordance with the following formula:
P= C(N -T) IN
where:
P: financial participation of the Seller,
C: Sellers then current sales prices for the required Item or
Seller designed parts,
(i) T: total flying time in hours of the Aircraft in which the Item subject to a Failure has been originally
installed,
and,
N: [***] hours,
or,
(ii) T: total number of flight cycles which have been accumulated by the Aircraft in which the Item
subject to a Failure has been originally installed,
and,
N: [***] flight cycles,
or,
(iii) T: total time in months since Delivery of the
Aircraft in which the Item subject to a Failure has been originally installed,
and,
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N: (***) months,
[***]
12.2.4 General Conditions and Limitations
12.2.4.1 The undertakings given in this Clause 12.2 shall be valid after the period of the Sellers warranty applicable to an Item under Clause 12.1.
12.2.4.2 The Buyers remedy and the Sellers obligation and liability under this Service Life Policy are subject to the prior compliance by the Buyer with the following conditions:
(i) the Buyer shall maintain log books and other historical records with respect to each Item adequate to enable determination of whether the alleged Failure is covered by this Service Life Policy and if so to define the costs to be borne by the Seller in accordance with Clause 12,2.3;
(ii) the Buyer shall keep the Seller informed of any significant incidents relating to an Aircraft howsoever occurring or recorded;
(iii) the Buyer shall comply with the conditions of Clause 12.1.10;
(iv) the Buyer shall carry out specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs shall be as compatible as possible with the Buyers operational requirements and shall be carried out at the Buyers expense. Reports relating thereto shall be regularly furnished to the Seller;
(v) in the case of any breakage or defect, the Buyer must have reported the same in writing to the Seller within [***] days after any breakage or defect in an Item becomes apparent whether or not said breakage or defect can reasonably be expected to occur in any other aircraft, and the Buyer shall have informed the Seller of the breakage or defect in sufficient detail to enable the Seller to determine whether said breakage or defect is subject to this Service Life Policy.
12.2.4.3 Except as otherwise provided for in this Clause 12.2, any claim under this Service Life Policy shall be administered as provided for in and shall be subject to the terms and conditions of Clause 12.1.6.
12.2.4.4 In the event that the Seller shall have issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary modification kit free of charge or under a pro rata formula. If such a kit is so offered to the Buyer, then, to the extent of such
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Failure and any Failures that could ensue therefrom, the validity of the Sellers commitment under this Clause 12.2 shall be subject to the Buyers incorporating such modification in the relevant Aircraft, as promulgated by the Seller and in accordance with the Sellers instructions, within a reasonable time.
12.2.4.5 This Service Life Policy is neither a warranty, performance guarantee, nor an agreement to modify any Aircraft or airframe components to conform to new developments occurring in the state of airframe design and manufacturing art.
The Sellers obligation herein is to furnish only those corrections to the Items or provide replacement therefor as provided for in Clause 12.2.2.
The Buyers sole remedy and relief for the non-performance of any obligation or liability of the Seller arising under or by virtue of this Service Life Policy shall be in monetary damages, limited to the amount the Buyer reasonably expends in procuring a correction or replacement for any Item which is the subject of a Failure covered by this Service Life Policy and to which such non-performance is related.
The Buyer hereby waives, releases and renounces all claims to any further damages, direct, incidental or consequential, including loss of profits and all other rights, claims and remedies, arising under or by virtue of this Service Life Policy.
12.2.5 Transferability
The Buyers rights under this Clause 12.2 shall not be assigned, sold, leased, transferred or otherwise alienated by operation of law or otherwise, without the Sellers prior consent thereto, which shall not be unreasonably withheld and given in writing.
Any unauthorized assignment, sale, lease, transfer or other alienation of the Buyers rights under this Service Life Policy shall, as to the particular Aircraft involved, immediately void this Service Life Policy in its entirety.
12.3 Supplier Product Support Agreements
Prior to the Delivery of the first Aircraft, the Seller shall provide the Buyer with all enforceable and transferable warranties and service life policies with respect to Supplier Parts that the Seller has obtained pursuant to each Supplier Product Support Agreement.
12.3.1 Definitions
12.3.1.1 Supplier means any supplier of Supplier Parts.
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12.3.1.2 Supplier Part means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof as to which there exists a Supplier Product Support Agreement. The Propulsion Systems and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by Suppliers with whom the Seller has no Supplier Product Support Agreement are not Supplier Parts.
12.3.1.3 Supplier Product Support Agreement means an agreement between the Seller and a Supplier containing enforceable and transferable warranties and in the case of landing gear suppliers, service life policies for selected structural landing gear elements.
12.3.2 Suppliers Default
12.3.2.1 In the event of any Supplier, under any standard warranty obtained by the Seller pursuant to Clause 12.3, defaulting in the performance of any material obligation with respect thereto and the Buyer submitting in reasonable time to the Seller reasonable proof that such default has occurred, then Clause 12.1 shall apply to the extent the same would have been applicable had such Supplier Part been a Warranted Part, except that the Suppliers warranty period as indicated in the Supplier Product Support Agreement shall apply.
12.3.2.2 In the event of any Supplier, under any Supplier service life policy obtained by the Seller pursuant to Clause 12.3, defaulting in the performance of any material obligation with respect thereto and the Buyer submitting in reasonable time to the Seller reasonable proof that such default has occurred, then Clause 12.2 shall apply to the extent the same would have been applicable had such Supplier Item been listed in Exhibit F, Seller Service Life Policy, except that the Suppliers service life policy period as indicated in the Supplier Product Support Agreement shall apply.
12.3.2.3 At the Sellers request, the Buyer shall assign to the Seller, and the Seller shall be subrogated to, all of the Buyers rights against the relevant Supplier with respect to and arising by reason of such default and shall provide reasonable assistance to enable the Seller to enforce the rights so assigned.
12.4 Interface Commitment
12.4.1 Interface Problem
If the Buyer experiences any technical problem in the operation of an Aircraft or its systems due to a malfunction, the cause of which, after due and reasonable investigation, is not readily identifiable by the Buyer, but which the Buyer reasonably believes to be attributable to the design characteristics of one or more components of the relevant Aircraft
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(Interface Problem), the Seller shall, if so requested by the Buyer, and without additional charge to the Buyer (except for transportation of the Sellers personnel to the Buyers facilities, the cost of which shall be mutually agreed between the Buyer and the Seller), promptly conduct or have conducted an investigation and analysis of such problem to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible. The Buyer shall furnish to the Seller all data and information in the Buyers possession relevant to the Interface Problem, and shall cooperate with the Seller in the conduct of the Sellers investigations and such tests as may be required.
At the conclusion of such investigation the Seller shall promptly advise the Buyer in writing of the Sellers opinion as to the cause or causes of the Interface Problem and the Sellers recommendations as to corrective action.
12.4.2 Sellers Responsibility
If the Seller determines that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller shall, if so requested by the Buyer and pursuant to the terms and conditions of Clause 12.1, correct the design of such Warranted Part to the extent of the Sellers obligation as defined in Clause 12.1.
12.4.3 Suppliers Responsibility
If the Seller determines that the Interface Problem is primarily attributable to the design of any Supplier Part, the Seller shall, if so requested by the Buyer, reasonably assist the Buyer (at no additional charge to the Buyer) in processing any warranty claim the Buyer may have against the Supplier.
12.4.4 Joint Responsibility
If the Seller determines that the Interface Problem is attributable partially to the design of a Warranted Part and partially to the design of any Supplier Part, the Seller shall, if so requested by the Buyer, seek a solution within a reasonable time to the Interface Problem through cooperative efforts of the Seller and any Supplier involved.
The Seller shall promptly advise the Buyer of such corrective action as may be proposed by the Seller and any such Supplier. Such proposal shall be consistent with any then existing obligations of the Seller hereunder and of any such Supplier to the Buyer. Such corrective action when accepted by the Buyer shall constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Supplier with respect to such Interface Problem.
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12.4.5 General
12.4.5.1 All requests under this Clause 12.4 shall be directed to both the Seller and the Supplier.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause shall not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Clause 12.
12.4.5.3 All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 shall be deemed to be delivered under this Agreement and shall be subject to the terms, covenants and conditions set forth in this Clause 12.
12.5 Waiver, Release and Renunciation
12.5.1 SUBJECT TO CLAUSE 12.5.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 12 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, AND/OR ITS SUPPLIERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLERS AND/OR ITS SUPPLIERS NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT.
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THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 12.5, THE SELLER SHALL INCLUDE THE SELLER AND ITS AFFILIATES.
12.5.2 NOTHING IN THIS CLAUSE 12.5 SHALL CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF THE BUYER OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER TO THE BUYER OR ANY AFFILIATE OF THE BUYER PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER OR SUCH AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
THE PROVISIONS OF THIS CLAUSE 12.5 SHALL BE WITHOUT PREJUDICE TO THE PROVISIONS OF CLAUSES 14.9 AND 14.11 OF THIS AGREEMENT, CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THIS AGREEMENT, CLAUSE 11 OF ANY SOFTWARE LICENCE AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
12.6 Duplicate Remedies
The Seller shall not be obliged to provide any remedy which duplicates any other remedy already provided to the Buyer in respect of the same defect under any part of this Clause 12 as such Clause may be amended, complemented or supplemented by other contractual agreements or by other Clauses of this Agreement.
12.7 Negotiated Agreement
The Buyer and the Seller agree that this Clause 12 has been the subject of discussion and negotiation and is fully understood by the parties and that the price of the Aircraft and the other mutual agreements of the parties set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the Exclusivity of Warranties and General Limitations of Liability provisions and the Duplicate Remedies provisions set forth in Clause 12.6.
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13 PATENT AND COPYRIGHT INDEMNITY
13.1 Indemnity
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller shall indemnify the Buyer from and against any damages, costs or expenses including, without limitation legal costs and any costs incurred by the Buyer in obtaining the release of any Aircraft pursuant to clause 13.2.1(iii) (but excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement or claim of infringement by any Airframe (or any part or software installed therein at Delivery) of:
(i) any British, French, German, Spanish or U.S. patent;
and
(ii) any patent issued under the laws of any other country in which the Buyer may lawfully operate the relevant Aircraft, provided that:
(1) at the time of such infringement or claim, such country and the flag country of the relevant Aircraft are each a party to the Chicago Convention on International Civil Aviation of December 7, 1944, and are each fully entitled to all benefits of Article 27 thereof,
or in the alternative,
(2) at the time of such infringement or claim, such country and the flag country of the relevant Aircraft are each a party to the International Convention for the Protection of Industrial Property of March 20, 1883 (Paris Convention);
and
(iii) in respect of computer software installed on the relevant Aircraft, any copyright, provided that the Sellers obligation to indemnify shall be limited to infringements in countries which, at the time of infringement, are members of The Berne Union and recognise computer software as a work under the Berne Convention.
13.1.2 Clause 13.1.1 shall not apply to
(i) Buyer Furnished Equipment or Propulsion Systems; or
(ii) parts not supplied pursuant to a Supplier Product Support Agreement; or
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(iii) software not created by the Seller.
13.1.3 In the event that the Buyer is prevented from using the Aircraft (or any of them) (whether by a valid judgement of a court of competent jurisdiction or by a settlement arrived at between claimant, Seller and Buyer), the Seller shall at its expense either:
(i) procure for the Buyer the right to use the same free of charge to the Buyer; or
(ii) replace the infringing part of the relevant Aircraft as soon as possible with a non-infringing substitute complying in all other respects with the requirements of this Agreement.
13.2 Administration of Patent and Copyright Indemnity Claims
13.2.1 If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer shall:
(i) forthwith notify the Seller giving particulars thereof;
(ii) in so far as permitted by law and the regulatory authorities having jurisdiction over the Buyer, furnish to the Seller all data, papers and records within the Buyers control or possession relating to such patent or claim;
(iii) refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) shall prevent the Buyer from paying such sums as may be required in order to obtain the release of the relevant Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice;
(iv) [***] fully co-operate with, and render all such assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim;
(v) [***] mitigate damages and / or to reduce the amount of royalties which may be payable as well as to minimise costs and expenses.
13.2.2 The Seller shall be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Sellers opinion, it deems proper.
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13.2.3 The Sellers liability hereunder shall be conditional upon the strict and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright.
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14 TECHNICAL DATA AND SOFTWARE SERVICES
This Clause covers the terms and conditions for the supply of technical data and software services (hereinafter Technical Data) to support the Aircraft operation.
14.1 Scope
The Technical Data shall be supplied in the English language using the aeronautical terminology in common use.
Range, form, type, format, Air Transport Association (ATA) I Non ATA compliance, quantity and delivery schedule of the Technical Data to be provided under this Agreement are covered in Exhibit G.
Not used or only partially used Technical Data provided pursuant to this Clause shall not be compensated or credited to the Buyer.
14.2 Aircraft Identification for Technical Data
14.2.1 For the customized Technical Data the Buyer agrees to the allocation of fleet serial numbers (Fleet Serial Numbers) in the form of block of numbers selected in the range from 001 to 999.
14.2.2 The sequence shall not be interrupted except if two (2) different Propulsion Systems or two (2) different Aircraft models are selected.
14.2.3 The Buyer shall indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the Aircraft rank in the Delivery schedule set forth in Clause 9.1.1 hereof within [***] days or as soon as is reasonably practicable after execution of this Agreement. The subsequent allocation of such Fleet Serial Numbers to Manufacturers Serial Numbers for the purpose of producing customized Technical Data shall not constitute any property, insurable or other interest of the Buyer whatsoever in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement.
The affected customized Technical Data are:
Aircraft Maintenance Manual,
Illustrated Parts Catalog,
Trouble Shooting Manual,
Aircraft Wiring Manual,
Aircraft Schematics Manual,
[***] Confidential treatment requested by AerCap Holdings N.V.
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Aircraft Wiring Lists.
14.3 Integration of Equipment Data
14.3.1 Supplier Equipment
Information relating to Supplier equipment which is installed on the Aircraft by the Seller shall be introduced into the customized Technical Data to the extent necessary for the comprehension of the systems concerned, at no additional charge to the Buyer for the Technical Data basic issue.
14.3.2 Buyer Furnished Equipment
14.3.2.1 The Seller shall introduce Buyer Furnished Equipment data, for equipment which is installed on the Aircraft by the Seller, into the customized Technical Data at no additional charge to the Buyer for the Technical Data basic issue, provided such data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.5 hereunder.
14.3.2.2 The Buyer shall supply the data related to Buyer Furnished Equipment to the Seller at least six (6) months before the scheduled delivery of the customized Technical Data. The Buyer Furnished Equipment data supplied to the Buyer by the Seller shall be in English Language.
14.3.2.3 The supplied Buyer Furnished Equipment data shall be established in compliance with ATA 2200 standard Specification, in the Revision applicable to the corresponding Aircraft type.
Subsequent revisions of the ATA Specification shall be considered as applicable.
14.3.2.4 The Buyer and the Seller shall agree on the requirements for the provision to the Seller of BFE data for on-aircraft maintenance, such as but not limited to timeframe, media and format, for integration of such data into Technical Data, with the aim of managing the BFE data integration process in an efficient, expedite and economic manner.
14.3.2.5 The Buyer Furnished Equipment data shall be delivered in digital format (SGML) and/or in Portable Document Format (PDF), as shall have been agreed between the Buyer and the Seller.
14.3.2.6 All costs related to the delivery to the Seller of the applicable Buyer Furnished Equipment data shall be borne by the Buyer.
14.3.2.7 In the event of the Seller providing directly certain items, which are considered as Buyer Furnished Equipment according to the Specification pursuant to and in accordance with Clause 18.1.4, this Clause 14.3.2 shall
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remain fully applicable to the data related to such Buyer Furnished Equipment.
14.4 Delivery
14.4.1 The Technical Data are delivered on-line and/or off-line, as set forth in Exhibit G hereto.
14.4.2 For Technical Data not delivered on-line, the Technical Data and corresponding revisions to be supplied by the Seller shall be sent to one address only as advised by the Buyer.
14.4.3 Packing and shipment of the Technical Data and their revisions shall be carried out in consideration of the quickest transportation methods. The shipment shall be Free Carrier (FCA) TOULOUSE, FRANCE and/or Free Carrier (FCA) HAMBURG, FEDERAL REPUBLIC OF GERMANY, as the term Free Carrier (FCA) is defined by publication n° 560 of the International Chamber of Commerce, published in January 2000.
14.4.4 The delivery schedule of the Technical Data shall be phased as mutually agreed to correspond with each of the Aircraft Deliveries. The Buyer agrees to provide forty (40) days notice when requesting a change to the delivery schedule.
14.4.5 It shall be the responsibility of the Buyer, in conjunction with any Operator to coordinate and satisfy local Aviation Authorities needs for Technical Data. Reasonable quantities of such Technical Data shall be supplied by the Seller at no charge to the Duty Unpaid (DDU) TOULOUSE, FRANCE and/or Duty Unpaid (DDU) HAMBURG, FEDERAL REPUBLIC OF GERMANY.
14.5 Revision Service
Unless otherwise specifically stated, revision service shall be provided on a free of charge basis for a period of [***] after Delivery of the last firmly ordered Aircraft covered under this Agreement, as such Delivery is scheduled under Clause 9 of the Agreement (and as such schedule may be subsequently amended).Thereafter revision service shall be provided at the standard conditions set forth in the then current Sellers Customer Services Catalog.
Mandatory changes shall be incorporated into the Technical Data [***].
14.6 Service Bulletins (SB) Incorporation
Upon the Buyers request for incorporation, which shall be made within [***] after issuance of a Service Bulletin or if later, within [***] from Delivery of the last firmly ordered aircraft covered under this Agreement, Sellers
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Service Bulletin information shall be incorporated into the Technical Data for the Buyers Aircraft after formal notification by the Buyer of its intention to accomplish a Service Bulletin. The split effectivity for the corresponding Service Bulletin shall remain in the Technical Data until notification from the Buyer that embodiment has been completed on all the Buyers Aircraft. The above is applicable for Technical Data relating to maintenance. For the operational Data only the pre or post Service Bulletin status shall be shown.
14.7 Future Developments
The Seller shall continuously monitor technological developments and apply them to data and document production and methods of transmission where beneficial and economical. The Buyer accepts to consider any new development proposed by the Seller for possible implementation.
14.8 Technical Data Familiarization
Upon request by the Buyer, the Seller is ready to provide per Operator a one (1) week Technical Data familiarization training at the Sellers or at the Buyers or its designated Operators facilities. If such familiarization is conducted at the Buyers or such Operators facilities, the Buyer or the relevant Operator (as applicable) shall reimburse the Seller for all air travel (business class) and reasonable expenses (including but not limited to lodging, food and local transportation to and from the place of lodging and the training course location) of the representatives of the Seller conducting such familiarization. For the purposes of this Clause 14.8 in the event that such training is conducted at the Operators facilities or for the benefit of any Operator the Sellers representatives conducting such training shall fly business class with the relevant Operator subject to this being feasible and practical.
14.9 Customer Originated Changes (COC)
14.9.1 Buyer (or its Operator if approved in writing by the Buyer) originated data may be introduced as COC into the following customized Technical Data:
Aircraft Maintenance Manual,
Illustrated Parts Catalog,
Trouble Shooting Manual,
Aircraft Wiring Manual,
Aircraft Schematics Manual,
Aircraft Wiring Lists,
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Flight Crew Operating Manual,
Quick Reference Handbook.
14.9.2 COC data shall be established by the Buyer (or its Operator, if approved in writing by the Buyer) according to the Customer Guide for Customer Originated Changes, as issued by the Seller. The Buyer or its Operator (as applicable) shall ensure that any such data is in compliance with the requirements of its local Aviation Authorities.
COC data shall be incorporated within two (2) revisions by the Seller into all affected customized Technical Data unless the Buyer specifies in writing the documents of its choice into which the COC data shall be incorporated. The customized Technical Data into which the COC data are incorporated shall only show the Aircraft configuration reflecting the COC data and not the configuration before such COC datas incorporation.
14.9.3.1 The Buyer hereby acknowledges and accepts that the incorporation of any COC into the Technical Data issued by the Seller shall be entirely at the Buyers risk and that the Seller shall not be required to check any COC data submitted for incorporation save that the Seller shall incorporate accurately the COC as legibly supplied, within two (2) revisions.
Further, the Buyer acknowledges full liability for the effects, including all related costs, which any COC may have on any subsequent Service Bulletins and/or modifications.
14.9.3.2 THE SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR LIABILITIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW, COURSE OF DEALING OR OTHERWISE, AND WITHOUT LIMITATION ALL WARRANTIES AS TO QUALITY, OPERATION, MERCHANTABILITY, FITNESS FOR ANY INTENDED PURPOSE, AND ALL OTHER CHARACTERISTICS WHATSOEVER, INCLUDING ANY OMISSIONS OR INACCURACIES THEREIN, IN RESPECT OF ANY CUSTOMER ORIGINATED CHANGES INCORPORATED INTO THE TECHNICAL DATA ISSUED BY THE SELLER SAVE THAT THIS CLAUSE 14.9.3.2 SHALL BE WITHOUT PREJUDICE TO ANY EXPRESS OBLIGATION ASSUMED BY THE SELLER IN THIS CLAUSE 14.9.
THE FOREGOING DISCLAIMER SHALL ALSO APPLY TO ANY OTHER PORTION OF THE SELLERS TECHNICAL DATA TO THE EXTENT (BUT ONLY TO THE EXTENT) THAT SUCH SELLERS TECHNICAL DATA IS ADVERSELY AFFECTED BY ANY SUCH CUSTOMER ORIGINATED CHANGES.
14.9.3.3 In the event of the Seller being required under any court order or settlement to indemnify any third party for injury, loss or damage incurred
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directly or indirectly as a result of incorporation of any COC into the Technical Data issued by the Seller, the Buyer agrees to reimburse the Seller for all payments or settlements made in respect of such injury, loss or damage including any expenses incurred by the Seller in defending such claims.
14.9.3.4 In the event of the Buyer selling, leasing or otherwise transferring any Aircraft to which the COC data applies, the Buyer hereby agrees that, unless the COC data is removed from the Technical Data at the Buyers request and expense prior to such transfer:
(i) the Buyer shall remain fully liable for the COC data and any and all effects of its incorporation, as set forth in this Clause 14.9;
(ii) the Seller may disclose the COC data to the subsequent owner(s) or Operator(s) of the transferred Aircraft;
(iii) it shall be the sole responsibility of the Buyer to notify, or cause to be notified, the subsequent owner(s) or Operator(s) of the existence of the such COC data in the Technical Data applicable to the corresponding Aircraft.
The Seller hereby disclaims any and all liabilities whatsoever for the COC data in the event of transfer, sale or lease as set forth in clause 14.9.3.2.
14.9.4 The incorporation of any COC as aforesaid shall be performed under the conditions specified in the Sellers then current Customer Services Catalog.
14.10 Software Services
14.10.1 Performance Engineers Programs
14.10.1.1 In addition to the standard operational manuals, the Seller shall provide to the Buyer software components and databases composing the Performance Engineers Programs (PEP) for the Aircraft type covered under this Agreement under licence conditions as defined in Appendix A to this Clause.
14.10.1.2 Use of the PEP shall be limited to one (1) copy to be used on one (1) computer. The PEP is intended for use on ground only and shall not be embarked on board of the Aircraft.
14.10.1.3 The licence to use the PEP shall be granted free of charge for as long as the revisions of the PEP are free of charge in accordance with Clause 14.5. At the end of such period, the yearly revision service for the PEP shall be provided to the Buyer at the standard commercial conditions set forth in the then current Sellers Customer Services Catalog.
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14.10.2 AirN@v and/or ADOC N@vigator Based Consultation
Certain Technical Data are provided on DVD and/or on line under licence conditions as defined in Appendix A to this Clause.
The affected Technical Data under AirN@v are the following:
Trouble Shooting Manual,
Aircraft Maintenance Manual,
Illustrated Parts Catalog (Airframe),
Aircraft Schematics Manual,
Aircraft Wiring Lists,
Aircraft Wiring Manual,
Electrical Standard Practices Manual,
Consumable Material List,
Standards Manual.
The affected Technical Data covered under an Advanced Consultation Tool based on ADOC N@vigator browser are:
Engineering Documentation Combined Index
Engineering Drawings Parts Usage
Engineering Drawings Parts List
The licence to use AirN@v and/or ADOC N@vigator based products shall be granted free of charge for each Aircraft for as long as the revisions of such Technical Data are free of charge in accordance with Clause 14.5. At the end of such period, the yearly revision service for AirN@v and/or ADOC N@vigator based products shall be provided to the Buyer at the standard commercial conditions set forth in the then current Sellers Customer Services Catalog.
14.10.3 Airbus|World Customer Portal
14.10.3.1 The Buyer (and its Operators) shall be entitled to obtain access to a wide range of information and services, including Technical Data, available in the secure zone of Airbus Customer Portal Airbus|World (Airbus|World).
Access to the secure zone of Airbus|World, which is reserved to Airbus owners and operators (the Secure Zone), shall be subject to the prior signature by the Buyer or its Operators (as applicable) of the General Terms and Conditions of Access to and Use of Airbus Secure Area of Customer Portal (hereinafter the GTC.).
A description of the Basic Services, which are available to the Buyer and its Operators in the Secure Zone and are provided to the Buyer and its Operators free of charge after signature of the GTC with respect to each
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Aircraft, for as long as the Buyer owns or such Operator operates the relevant Aircraft, is set forth in Appendix B to this Clause 14.
Furthermore, although part of the data available on Airbus|World is neither sensitive nor confidential and is also available to the general internet public in the public zone of the portal (the Public Zone), it is however recommended that for simplicity of access the Buyer find this information in the Secure Zone.
14.10.3.2 On-Line Technical Data
14.10.3.2.1 The Technical Data defined in Exhibit G as being provided on-line shall be made available to the Buyer and its Operators through the Secure Zone.
Such provision shall be at no cost as long as revision service for such Technical Data is free of charge in accordance with Clause 14.5
14.10.3.2.2 The list of the Technical Data available on-line may be extended from time to time.
For any Technical Data which is or becomes available on-line, the Seller reserves the right to suppress other formats for the concerned Technical Data.
14.10.3.3 Access to the Secure Zone shall be granted free of charge for a maximum of [***] of the Buyers or its Operators users per Operator (including one Buyer Administrator) (or more as the Buyer and the Seller may agree, at the Buyers request) for the Technical Data related to the Aircraft
14.10.3.4 For the sake of clarification, it is hereby specified that Technical Data accessed through the Secure Zone - which access shall be covered by terms and conditions set forth in the GTC shall remain subject to the conditions of this Clause 14.
In addition, should the Secure Zone provide access to Technical Data in software format, the use of such software shall be further subject to the conditions of Appendix A hereto.
14.11 Warranties
14.11.1 The Seller warrants that the Technical Data are prepared in accordance with the state of art at the date of their conception. Should any Technical Data prepared by the Seller contain non-conformity or defect, the sole and exclusive liability of the Seller shall be to take all reasonable and proper steps to, at its option, correct or replace such Technical Data. Notwithstanding the above, no warranties of any kind are given for the Customer Originated Changes, as set forth in Clause 14.9.
[***] Confidential treatment requested by AerCap Holdings N.V.
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14.11.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 14 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER AND/OR ITS SUPPLIERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLERS AND/OR ITS SUPPLIERS NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR ANY TECHNICAL DATA DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 14.11.2, THE SELLER SHALL INCLUDE THE SELLER AND ITS AFFILIATES NOTHING IN THIS CLAUSE 14.11 SHALL CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF THE BUYER OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER TO THE BUYER OR ANY OF ITS AFFILIATES PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER OR ANY AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
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THE PROVISIONS OF THIS CLAUSE 14.11 SHALL BE WITHOUT PREJUDICE TO THE PROVISIONS OF CLAUSES 12.5 AND 14.9 OF THIS AGREEMENT, CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THIS AGREEMENT, CLAUSE 11 OF ANY SOFTWARE LICENCE AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
14.12 Proprietary Rights
14.12.1 All proprietary rights, including but not limited to patent, design and copyrights, relating to Technical Data shall remain with the Seller and/or its Affiliates as the case may be.
These proprietary rights shall also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.
14.12.2 Whenever this Agreement provide for manufacturing by the Buyer, the consent given by the Seller shall not be construed as express or implicit approval howsoever neither of the Buyer nor of the manufactured products. The supply of the Technical Data shall not be construed as any further right for the Buyer to design or manufacture any Aircraft or part thereof or spare part.
14.13 Confidentiality
14.13.1 The Technical Data and their content are designated as confidential. All such Technical Data are supplied to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller save as permitted therein or otherwise pursuant to any government or legal requirement imposed upon the Buyer.
14.13.2 In the case of the Seller having authorized the disclosure to third parties either under this Agreement, or by an express prior written authorization, the Buyer shall undertake that such third party agrees to be bound by the same conditions and restrictions as the Buyer with respect to the disclosed Technical Data.
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APPENDIX A TO CLAUSE 14
LICENCE FOR USE
OF
SOFTWARE
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LICENCE FOR USE OF SOFTWARE
1. Definitions
For the purposes of this licence the following definitions shall apply:
Agreement means the aircraft purchase agreement dated December , 2005 and entered in between the Licensor as Seller and the Licensee as Buyer with respect to up to seventy (70) Airbus A320 family aircraft including all exhibits, appendices and letter agreements attached thereto and as the same may be modified in writing by the parties thereto from time to time.
Licensor means the Seller.
Licensee means the Buyer.
Software means the set of programs, configurations, processes, rules and, if applicable, documentation related to the operation of the data processing.
Freeware means the Software furnished free of charge to the Licensee.
Composite Work means the work composed of various elements, such as database, software or data, and which necessitates the use of the Software.
User Guide means the documentation, which may be in electronic format, designed to assist the Licensee to use the Software, Freeware or Composite Work, as applicable.
Capitalized terms used herein and not otherwise defined in this Software Licence shall have the meaning assigned thereto in this Agreement.
2. Grant
The Licensor grants the Licensee the right to use the Software under the conditions set forth below (the Software Licence). The Software Licence shall also apply to any Freeware and/or Composite Work delivered by the Licensor.
3. Personal Licence
The sole right granted to the Licensee under this Software Licence is the right to use the Software. The Software Licence is personal to the Licensee, for its own internal use, and subject to Clause 15.1, is non-transferable and non-exclusive.
4. Copies
Use of the Software is limited to the number of copies delivered by the Licensor to the Licensee and to the medium on which the Software is delivered. No reproduction shall be made without the written consent of the Licensor. It is however agreed that the Licensee is authorized to copy the Software for back-up
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and archiving purposes. Any copy authorized by the Licensor to be made by the Licensee shall be performed under the sole responsibility of the Licensee. The Licensee agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Licensee makes of the Software.
5. Term
Subject to the Licensee having complied with the terms of this Software Licence, the rights under the Software Licence shall be granted by the Licensor to the Licensee from the date of first delivery of the Software to the Licensee for so long as the Licensee owns or leases the Aircraft (or any of them).
The Licensee may terminate the Software Licence by notifying in writing to the Licensor its desire to terminate the Software Licence. Such notification shall be received by the Licensor not later than November 30th of the current year.
For clarification purposes, it is hereby expressly stated that the Software may be offered for a limited period. In the event that the Licensor should offer a replacement product, the conditions for using such product shall be based on the general conditions agreed herein but shall be subject to a separate agreement.
6. Conditions of Use
Under the present Software Licence, the Licensee shall:
do its utmost to maintain the Software and the relating documentation in good working condition, in order to ensure the correct operation thereof;
use the Software in accordance with such documentation and the User Guide, and ensure that the staff using the Software has received the appropriate training;
use the Software exclusively in the technical environment defined in the applicable User Guide, except as otherwise agreed in writing between the parties (subject to said agreement, decompilation may be exceptionally agreed to by the Licensor in order for the Licensee to obtain the necessary information to enable the Software to function in another technical environment);
use the Software for its own internal needs and on its network only, when technically possible, and exclusively on the machine referenced and the site declared;
not alter, reverse engineer, modify or adapt the Software, nor integrate all or part of the Software in any manner whatsoever into another software product;
when the source code is provided to the Licensee, the Licensee shall have the right to study and test the Software, under conditions to be expressly specified by
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the Licensor, but in no event shall the Licensee have the right to correct, modify or translate the Software;
nor correct the Software, except that such correction right may exceptionally be granted to the Licensee by the Licensor in writing
not translate, disassemble or decompile the Software, nor create a software product derived from the Software;
not attempt to or authorize a third party to discover or re-write the Software source codes in any manner whatsoever;
not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights provided in the Software by the Licensor;
not pledge, sell, distribute, grant, sub-licence (without the prior written consent of the Licensor), lease, lend, whether on a free-of-charge basis or against payment, or permit access on a time-sharing basis or any other utilization of the Software, whether in whole or in part, for the benefit of a third party;
other than pursuant to an assignment or transfer of this Software Licence to which the Licensor has given its express consent, not permit any third party to use the Software in any manner, including but not limited to, any outsourcing, loan, commercialization of the Software or commercialization by merging the Software into another software or adapting the Software, without prior written consent from the Licensor.
The Licensor shall be entitled, subject to providing reasonable prior written notice thereof to the Licensee, and subject to such inspections not disturbing the Licensees work or operations to come and verify in the Licensees facilities whether the conditions specified in the present Software Licence are respected. This shall not however engage the responsibility of the Licensor in any way whatsoever.
7. Training
In addition to the User Guide provided with the Software, training and other assistance shall be provided upon the Licensees request on a non-chargeable basis.
8. Proprietary Rights
The Software is proprietary to the Licensor or the Licensor has acquired the intellectual property rights necessary to grant this Software Licence. The copyright and all other proprietary rights in the Software are and shall remain the property of the Licensor.
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The Licensor reserves the right to modify any Software at its sole discretion without prior notice to the Licensee.
9. Copyright Indemnity
The Licensor shall defend and indemnify the Licensee against any claim that the Software infringes the intellectual property rights of any third party, provided that the Licensee:
Immediately notifies the Licensor of any such claim;
Makes no decision or settlement of any claim without the prior written consent of the Licensor;
Allows the Licensor to have sole control over all negotiations for its settlement;
Gives the Licensor all reasonable assistance in connection therewith.
Should the Licensee be prevented from using the Software by any enforceable court decision, the Licensor shall at its own costs and at its choice either modify the Software to avoid infringement or obtain for the Licensee the right to use the Software.
10. Confidentiality
The Software and its contents are designated as confidential. The Licensee undertakes not to disclose the Software or parts thereof to any third party without the prior written consent of the Licensor. In so far as it is necessary to disclose aspects of the Software to the employees, such disclosure is permitted solely for the purpose for which the Software is supplied and only to those employees who need to know the same.
The obligations of the Licensee to maintain confidentiality shall survive the termination of the Software Licence grant for a period of five (5) years.
11. Warranty
The Licensor warrants that the Software is prepared in accordance with the state of art at the date of its conception and shall perform substantially in accordance with its functional and technical specification at the time of delivery. Should the Software be found to contain any non-conformity or defect, the Licensee shall notify the Licensor promptly thereof and the sole and exclusive liability of the Licensor under this Software Licence shall be to correct the same.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR AND/OR ITS SUPPLIERS AND REMEDIES OF THE LICENSEE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LICENSEE HEREBY
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WAIVES, RELEASE AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE LICENSEE AGAINST THE LICENSOR, AND/OR ITS SUPPLIERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY SOFTWARE DELIVERED UNDER THIS SOFTWARE LICENCE INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE LICENSORS AND/OR ITS SUPPLIERS NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR ANY SOFTWARE DELIVERED HEREUNDER.
THE LICENSOR AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY SOFTWARE DELIVERED UNDER THIS SOFTWARE LICENCE.
FOR THE PURPOSES OF THIS CLAUSE 11, THE LICENSOR SHALL INCLUDE THE LICENSOR AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 11 SHALL CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE LICENSEE OR ANY AFFILIATE OF THE LICENSEE OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE LICENSOR TO THE LICENSEE OR ANY AFFILIATE OF THE LICENSEE PURSUANT TO ANY AGREEMENT BETWEEN SUCH LICENSEE OR ITS AFFILIATE AND SUCH SUPPLIER OR ANY AFFILIATE OF THE LICENSOR.
THE PROVISIONS OF THIS CLAUSE 11 SHALL BE WITHOUT PREJUDICE TO THE PROVISIONS OF CLAUSES 12.5, 14.9, AND 14.11 OF THIS AGREEMENT, CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THE AGREEMENT AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE LICENSOR EXPRESSLY PRESERVED THEREUNDER;
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The Licensor shall have no liability for data that is entered into the Software by the Licensee and/or used for computation purposes.
12. Liability and Indemnity
The Software is supplied under the express condition that save as provided in this Software Licence, the Licensor shall have no liability in contract or in tort arising from or in connection with the use or possession by the Licensee of the Software and that the Licensee shall indemnify and hold the Licensor harmless from and against any liabilities and claims resulting from such use or possession save to the extent (but only to the extent) that such claim or liability does not relate to (i) an intellectual property infringement claim contemplated by Clause 9 nor (ii) any failure by the Licensor to comply with its obligations under Clause 11 or any other provision of this Software Licence.
13. Excusable Delays
13.1 The Licensor shall not be responsible nor be deemed to be in default on account of delays in delivery or otherwise in the performance of this Software Licence or any part thereof due to causes reasonably beyond Licensors or its subcontractors control and not occasioned by the fault or negligence of the Licensor or its subcontractors including but not limited to: natural disasters, fires, floods, explosions or earthquakes, epidemics or quarantine restrictions, serious accidents, total or constructive total loss, any act of the government of the country of the Licensee or the governments of the countries of Licensor or its subcontractors, war, insurrections or riots, failure of transportation, communications or services, strikes or labor troubles causing cessation, slow down or interruption of services, inability after due and timely diligence to procure materials, accessories, equipment or parts, failure of a subcontractor or vendor to furnish materials, accessories, equipment or parts due to causes reasonably beyond such subcontractors or vendors control or failure of the Licensee to comply with its obligations arising out of the present Software Licence. The Licensor shall use all reasonable endeavours to minimize such delays.
13.2 The Licensor shall, as soon as practicable after becoming aware of any delay falling within the provisions of this Clause, notify the Licensee of such delay and of the probable extent thereof and shall, subject to the conditions as hereinafter provided and as soon as practicable after the removal of the cause or causes for delay, resume performance under the Software Licence.
13.3 Should an event of force majeure last for a period extending beyond three (3) months, the Software Licence shall be automatically terminated, as a matter of right, unless otherwise agreed in writing, without compensation for either the Licensor or the Licensee.
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14. Termination
In the event of breach of an obligation set forth in this Software Licence by either the Licensor or the Licensee, which is not cured within 30 days from the date of receipt of a written notice notifying the breach, the non-breaching party shall be entitled to terminate this Software Licence.
In the event of termination for any cause, the Licensee shall no longer have any right to use the Software and shall return to the Licensor all copies of the Software and any relating documentation together with an affidavit to that effect. In case of breach by the Licensee, the Licensor shall be entitled to retain any amount paid for the ongoing year.
15. General Provisions
15.1 This Software Licence or part thereof shall not be assigned to a third party without the prior written consent of the other party except that the Licensor may assign this Licence to any of the Licensors Affiliates.
15.2 This Software Licence shall be governed by the laws of England. All disputes arising in connection with this Software Licence shall be submitted to the competent courts of England and the provisions of clause 22.4 of the Agreement shall be incorporated herein (with all necessary changes).
15.3 In the event that any provision of this Software Licence should for any reason be held ineffective, the remainder of this Software Licence shall remain in full force and effect.
The invalid provision shall be replaced by such valid one as the parties would have chosen had they been aware of such invalidity.
15.4 All notices and requests required or authorized hereunder shall be given in writing either by registered mail (return receipt requested) or by telefax. In the case of any such notice or request being given by registered mail, the date upon which the answerback is recorded by the addressee or, in case of a telefax, the date upon which the answerback is recorded by the senders telefax machine, shall be deemed to be the effective date of such notice or request.
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APPENDIX B TO CLAUSE 14
Airbus|World Customer Portal
SECURE ZONE
BASIC SERVICES
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1. General services
1.1 GCS General Information
Providing general information such as:
Airbus Abbreviations Dictionary (AAD)
Airbus Monitored Retrofit Campaign
Engineering and Technical Services (Contact List)
Events & Symposium
On-line Services General Information
Training Catalogues
Monthly Service Report
Tutorials
Spares Information
Fast Magazine
Upgrade Services
1.2 FTP Site
This service provides access on an ad-hoc basis to specific documents or data that first need to be downloaded onto the users local workstation for display and use, after prior arrangement with the corresponding Airbus technical counterpart.
1.3 What is New facility and E-mail notification
The What is New function allows a user to be informed of new information put On-Line within a specific date range (default value is between users last login and now).
This facility is applicable to following services:
AIDA (Drawings)
AOG RG
CAWA
ETDS
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General Information
SPSA
TPPO
VIM
As a complementary service to the What is New facility, a subscription to e-mail notification is available for some mainly used documents.
This function provides information of new data on-line, with direct access links, via e-mail, according to the users subscription.
2. Technical Data
2.1 ETDS (Engineering Technical Documentation) service
The service provides access via a document index to the contents of:
Service Bulletins all SB in PDF, but SB issued after July 1997 in PDF and SGML
Technical Follow-Up (TFU) - all
Modification Information Document (MID) - all
All Operators Telex (AOT) - all
Operators Information Telex (OIT) - all
Flight Operations Telex (FOT) - all
Service Information Letter (SIL) - all
Consignes de Navigabilité (CN) - all
Advisory Directives (AD) -all
In addition, links between such documents are available through the service.
Documents can be printed or downloaded, depending of their electronic format.
SBs available in SGML format can be downloaded in SGML.
Printing will be based on PDF format.
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2.2 STDO (Supplier Technical Manuals) service
The Supplier Technical Manuals service provides an on-line consultation of Suppliers component maintenance manuals (CMMv) available in PDF.
It allows access to Suppliers CMMs that are effective for the Buyers fleet.
Through the application interface, users are able to:
Search documents by Aircraft type, ATA references, document type, Supplier code and Part number;
Access, print and download via the PDF reader plug in (Acrobat Reader) the available release of the Suppliers technical documentation.
3. Spare Parts and Repair
3.1 ARG (AOG and Repair Guide) service
Access to vendor and repairs stations by P/N.
3.2.1 ASDS (Airbus Support Data for Supplier) service
This service offers for all Airbus aircraft:
Part number information such as price, lead-time, manufacturer code, stock status and location
Part number interchangeability
Single purchase order status
Useful information such as contact details, help function and e-mail
Internet parts ordering
Information link to selected in-house forwarders
Support guide and excess inventory list
3.3 VIM (Vendor Information Manual) service
The service offers:
List of Airbus vendors with location, fax, phones, addresses and contacts
List of repairs stations
List of equipment manufactured by the vendors
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3.4 SPSA (Supplier Product Support Agreements) service
Information relative to agreements negotiated between Airbus and Aircraft Equipment Suppliers.
DMC and MTBUR are available for the main Suppliers
3.5 Spares services
This service is already available in an autonomous mode through the Spares Portal (http://spares.airbus.com).
The service offers for all AIRBUS aircraft:
Part number information such as price, lead-time, manufacturer code, stock status and location
Part number interchangeability
Single purchase order status
Useful information such as contact details, help function and e-mail
Internet parts ordering
Information link to selected in-house forwarders
Support guide and excess inventory list
4. Warranty
4.1 CAWA (Contracts and Warranty Administration) service
The Warranty Claim Service proposes four main functions:
Warranty claims booking
Consultation of the warranty claims status
Consultation of statistics on response time regarding closed/open files
Consultation of warranty guide
5. Customize & Deliver
5.1 ACCL (A/C Comparison List) service
Aircraft configuration comparison list, 6 months and 1 month before Delivery.
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5.2 CDIS (Customization and Delivery Information) services
The following service provides access to:
RFC (Request For Change)
AIR (Aircraft Inspection Report)
SCN (Specification change Notices)
CCR (Customer Change Register)
Concessions
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15 SELLER REPRESENTATIVES
15.1 Customer Support Manager
The Seller shall assign one (1) customer support manager based at the Sellers main office to coordinate customer support matters between the Sellers main office and the Buyer following the signature of this Agreement for as long as [***] is operated by an Operator or is still owned by the Buyer.
15.2 Customer Services Representatives
15.2.1 The Seller shall provide free of charge the services of Seller customer services representatives (Sellers Representatives) acting in an advisory capacity in accordance with the allocation set forth in Appendix A of this Clause 15.
15.2.2 The Seller has set up a global technical services network available for the non-exclusive use by each Operator. The Buyer and each Operator will have free access to this global network at any time in the course of the Aircraft operation and, in particular in the event of a need for non-routine technical assistance, the Buyer and its Operators shall have non-exclusive access to the Sellers Representatives closest to the Buyers or relevant Operators (as applicable) main base after the end of the assignment of the Sellers Representatives referred to in Appendix A of this Clause 15. A list of the contacts for the Sellers Representatives closest to the Buyers or relevant Operators (as applicable) main base shall be provided to the Buyer and such Operator.
15.2.3 The Seller shall cause similar services to be provided by competent representatives of the Propulsion System Manufacturer and by Supplier representatives when necessary and applicable.
15.2.4 The Seller shall provide to the Buyer an annual written accounting of the consumed man-months and any remaining man-month balance. Such accounting shall be deemed as final and acceptable to the Buyer unless the Seller receives written objection from the Buyer within thirty (30) days of receipt of such accounting.
15.2.5 If requested by the Buyer, Seller Representative services exceeding the allocation specified in Appendix A of this Clause 15 may be provided by the Seller subject to terms and conditions to be mutually agreed.
15.3 Buyers Service
15.3.1 From the date of arrival of the first of the Sellers Representatives and for the duration of the assignment, the Buyer or its Operator (as applicable) shall provide free of charge a suitable lockable office, conveniently located
[***] Confidential treatment requested by AerCap Holdings N.V.
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with respect to the Buyers or Operators (as applicable) maintenance facilities, with complete office furniture and equipment for the sole use of the Sellers Representatives. The Buyer or its Operator (as applicable) shall provide or cause to be provided telecommunications facilities.
15.3.2 In accordance with the Operators regulations, the Buyer or its Operator (as applicable) shall provide at no cost to the Seller:
(a) airline tickets in business class confirmed and guaranteed between the locations mentioned in Clause 15.1 and 15.2 and the international airport nearest Toulouse, France that is on the relevant Operators network for the Sellers Representatives mentioned in Clause 15.1 or Clause 15.2. When the use of the relevant Operators route network is not feasible or practical, the relevant Operator shall reimburse the Seller for business class travel on other airlines; and
(b) when the Sellers Representatives are assigned away from the locations mentioned in Clause 15.1 or 15.2 at the relevant Operators or Buyers request, transportation between the said locations and the place of assignment.
15.3.4 The Buyer or its Operator (as applicable) shall assist the Seller to obtain from the civil authorities of the Buyers or Operators country those documents which are necessary to permit the Sellers Representatives to live and work in the Buyers or Operators (as applicable) country. Failure of the Seller to obtain the necessary documents shall relieve the Seller of any obligation to the Buyer or Operator under the provisions of Clause 15.2.
15.3.5 The Buyer or its Operator (as applicable) shall reimburse to the Seller charges, taxes, duties, imposts or levies of any kind whatsoever, imposed by authorities of the Buyers or its Operators (as applicable) country upon:
the entry into or exit from the Buyers or Operators country of the Sellers Representatives and their families,
the entry into or the exit from the Buyers or Operators country of the Sellers Representatives and their families personal property,
the entry into or the exit from the Buyers or Operators country of the Sellers property.
15.4 Withdrawal of the Sellers Representatives
The Seller shall have the right to withdraw its assigned Seller Representatives as it sees fit if conditions arise which are in the Sellers
[***] Confidential treatment requested by AerCap Holdings N.V.
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opinion dangerous to their safety or health or prevent them from fulfilling their contractual tasks.
15.5 Sellers Representatives Status
In providing the above technical services, the Sellers Representatives and other employees are deemed to be acting in an advisory capacity only and at no time shall they be deemed to act as Buyers employees or agents, either directly or indirectly.
15.6 Indemnities
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET FORTH IN CLAUSE 19.
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APPENDIX A
SELLER REPRESENTATIVE ALLOCATION
The Seller Representative allocation that is provided to the Buyer or its Operator (as applicable) pursuant to Clause 15.2 is set out below.
1 The Buyer shall be provided a total of [***] man-months of Seller Representative services per Aircraft at the Buyers main base or at other locations to be mutually agreed including, without limitation, the base of any Operator.
2 For clarification, such Seller Representatives services shall include initial Aircraft Entry Into Service (EIS) assistance and sustaining support services.
3 The number of the Sellers Representatives assigned to the Buyer or to its Operator at any one time shall be mutually agreed, but at no time shall it exceed [***] men per Operator.
4 Absence of an assigned Sellers Representative during normal statutory vacation periods are covered by the Sellers Representatives as defined in Clause 15.2.2 and as such are accounted against the total allocation provided in item 1 above.
[***] Confidential treatment requested by AerCap Holdings N.V.
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16 TRAINING AND TRAINING AIDS
16.1 General
This Clause 16 covers the terms and conditions for the supply of training and training aids for the Buyers and its Operators personnel to support the Aircraft operation.
16.2 Scope
16.2.1 The range and quantity of training and training aids to be provided free of charge under this Agreement are covered in Appendix A to this Clause 16.
16.2.2.1 With respect to Maintenance Training, training courses shall be provided up to one (1) year after Delivery of the last firm Aircraft ordered under this Agreement.
16.2.2.2 With respect to Flight Operations Training, the quantity of training allocated to each Aircraft shall be provided up to one (1) year after Delivery of each corresponding Aircraft.
16.3 Training Organisation I Location
16.3.1 The Seller shall provide training at its training center in Blagnac, France, or in Hamburg, Germany (each the Sellers Training Center) or one of its affiliated training centers in Miami, U.S.A., or Beijing, China (the Affiliated Training Centers).
16.3.2 In the event of the non-availability of facilities or scheduling imperatives making training by the Seller impractical, the Seller shall make arrangements for the provision to the Buyer or its Operator (as applicable) of such training support elsewhere. Provided that the Buyers or its Operators (as applicable) requirements have been indicated to the Seller ideally nine (9) months prior to Delivery of the relevant Aircraft but in any event as early as such Operator of the relevant Aircraft is known to the Buyer and in the event that the Seller is unable to accommodate the Buyers or its Operators (as applicable) requirements for training at a convenient location, [***].
16.3.3.1 Upon the Buyers request, the Seller may also provide certain training at a location other than the Sellers Training Centers or Affiliated Training Centers, including one of the Operators bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In this event, all additional charges listed in Clause 16.6.2 shall be borne by the Buyer or its relevant Operator (as applicable).
16.3.3.2 If the training as set forth in Clause 16.3.3.1 above is either an Airbus EASA Part 147 (for maintenance training) or a Type Rating Training
[***] Confidential treatment requested by AerCap Holdings N.V.
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Organisation (TRTO) (for flight operation training) approved course, the Buyer or its relevant Operator (as applicable) shall provide access to its training facilities to the Sellers and the relevant Aviation Authorities representatives for the necessary approval of such facilities for the training.
16.3.3.3 Training courses provided for the Buyers or Operators (as applicable) personnel shall be scheduled according to plans mutually agreed upon during a Training Conference to be held with the relevant Operator as soon as such Operator is known. The Seller shall use its best efforts to accommodate the Buyers or its Operators (as applicable) requirements provided that such are confirmed to the Seller at the latest nine (9) months prior to Delivery of the relevant Aircraft. In the event that such requirements are communicated to the Seller after such nine (9) months period, the Seller shall cooperate with the Buyer or its Operator (as applicable) to schedule the requested training so as to provide a training program as close as possible to the Buyers or Operators (as applicable) requirements, subject to the Sellers then prevailing constraints.
16.4 Training Courses
16.4.1 Training courses, as well as the minimum and maximum numbers of trainees per course provided for the Buyers or Operators (as applicable) personnel, are defined in the applicable brochure describing the various Sellers training courses (the Sellers Training Course Catalog) and shall be scheduled as mutually agreed upon during a training conference (the Training Conference) to be held between nine (9) and twelve (12) months prior to Delivery of the first Aircraft to each Operator.
16.4.2 When training is performed by the Seller:
(i) Training courses shall be the Sellers standard courses as described in the applicable Sellers Training Course Catalog valid at the time of the execution of the course. The Seller shall be responsible for all training course syllabi, training aids and training equipment necessary for the organisation of the training courses; however, for the purpose of performing training, training equipment does not include aircraft. The academic curricula and equipment used for the training of flight and maintenance personnel shall not be fully customized; however, they shall be configured in order to obtain the relevant approval and to support the Sellers teaching programs.
The equipment used for training of flight and maintenance personnel shall not be fully customised, however such equipment and the training curricula used for training of flight and/or maintenance personnel shall be configured in order to obtain the
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relevant Aviation Authorities approval and to support the Sellers training programs. Training data and documentation shall not be revised;
(ii) Training data and documentation for trainees receiving the training at the Sellers Training Centers or Affiliated Training Centers shall be free-of-charge. Training data and documentation shall be marked FOR TRAINING ONLY and as such are supplied for the sole and express purpose of training;
(iii) Upon the Buyers request, the Seller shall collect and pack for consolidated shipment to the Buyers facility, all training data and documentation of the Buyers trainees attending training at the Sellers Training Centers or Affiliated Training Centers at no charge to the Buyer;
The above shipment shall be delivered Free Carrier (FCA) to the airport closest to the location at which the training actually takes place, as the term Free Carrier (FCA) is defined by publication N°560 of the International Chamber of Commerce published in January 2000. Title to and risk of loss of said shipment shall pass to the Buyer upon delivery.
16.4.3 When the Sellers training courses are provided by the Sellers instructors, the Seller shall deliver a Certificate of Recognition, a Certificate of Course Completion or an Attestation, as applicable, at the end of any such training course. Any such certificate shall not represent authority or qualification by any Aviation Authorities but may be presented to such Aviation Authorities in order to obtain relevant formal qualification.
In the event of the training courses being provided by a training provider selected by the Seller, the Seller shall cause such training provider to deliver a Certificate of Recognition, a Certificate of Course Completion or an Attestation, as applicable, at the end of any such training course. Any such certificate shall not represent authority or qualification by any Aviation Authorities but may be presented to such Aviation Authorities in order to obtain relevant formal qualification.
16.5 Prerequisites and Conditions
16.5.1 Training shall be conducted in English and all training aids are written in English using common aeronautical terminology. Trainees shall have the prerequisite knowledge and experience defined in Appendix B to this Clause 16.
The Buyer hereby acknowledges that the Sellers training courses are Standard Transition Training Courses and not Ab lnitio Training Courses.
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The Buyer or its Operator (as applicable) shall be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees.
16.5.2.1 The Buyer or its Operator (as applicable) shall provide the Seller with an attendance list of the trainees for each course with the validated qualification of each trainee. The Seller reserves the right to check the trainees proficiency and previous professional experience. The Seller shall in no case warrant or otherwise be held liable for any trainees performance as a result of any training provided.
16.5.2.2 The Buyer or its Operator (as applicable) shall further return to the Seller the Airbus Pre-Training Survey or the Maintenance Training Survey, as applicable, detailing the trainees associated background at the latest two (2) months before the start of the training course.
16.5.2.3 In the event of the Buyer or its Operator (as applicable) having to make a change to the trainees attendance list within the two (2) month period stated in Clause 16.5.2.2, the Buyer or its Operator (as applicable) shall immediately inform the Seller thereof and send to the Seller an updated Airbus Pre-Training Survey or Maintenance Training Survey reflecting such change.
16.5.3 Upon the Buyers or its Operators (as applicable) request, the Seller may be consulted to direct the above mentioned trainee(s) through a relevant entry level training program, which shall be at the Buyers or its Operators (as applicable) charge, and, if necessary, to coordinate with competent outside organisations for this purpose. Such consultation shall be held during the Training Conference.
In the event of the Seller determining that a trainee lacks the required entry level, following consultation with the Buyer or its Operator (as applicable), such trainee shall be withdrawn from the program.
16.6 Logistics
16.6.1 Trainees
16.6.1.1 The Seller shall provide free local transportation by bus for the Buyers or Operators (as applicable) trainees to and from designated pick-up points and the Sellers Training Centers or Affiliated Training Centers.
16.6.1.2 Living and travel expenses for the Buyers or Operators (as applicable) trainees shall be borne by the Buyer or the Operator (as applicable).
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16.6.2 Training at External Location - Sellers Instructors
In the event of training being provided at an external location specifically at the Sellers request, the conditions relative to expenses shall be the same as those which would have been applicable if the training had been provided at the Sellers Training Centers or Affiliated Training Centers.
In the event of training being provided by the Sellers instructors at any location other than the Sellers Training Centers or Affiliated Training Centers at the Buyers or Operators (as applicable) request or as otherwise detailed in this Clause 16, the Buyer or Operator (as applicable) shall reimburse the Seller for all the expenses related to the assignment of such instructors and their performance of the duties as aforesaid.
16.6.2.1 Living Expenses
Such expenses, covering the entire period from day of departure from to day of return to the Sellers base, shall include but shall not be limited to lodging, food and local transportation to and from the place of lodging and the training course location. The Buyer shall reimburse the Seller for such expenses at the per diem rate currently used by the Seller for its personnel.
16.6.2.2 Air Travel
Airline reservations for travel between the Buyers or Operators (as applicable) designated training site and the Sellers Training Centers or Affiliated Training Centers shall be guaranteed and confirmed to the Sellers instructors in business class on the relevant Operators route network. When the use of such Operators route network is not feasible or practical, the Buyer or such Operator (as applicable) shall reimburse the Seller for business class travel for such journey on other airlines.
16.6.2.3 Training Material
The Buyer or its Operator (as applicable) shall reimburse the Seller the cost of shipment for the training material needed to conduct such courses.
16.6.2.4 Transportation
The Buyer shall be solely liable for any and all delay in the performance of the training outside of the Sellers or the Sellers Affiliated Training Centers associated with any transportation described in this Clause 16.6 same where such training is provided at such external location at the Sellers request.
16.6.3 Training Equipment Availability - Training at External Location
Training equipment necessary for course performance at any course location other than the Sellers Training Centers or Affiliated Training
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Centers or the facilities of the training provider selected by the Seller shall be provided by the Buyer or its Operator (as applicable) in accordance with the Sellers specifications.
16.7 Flight Operations Training
16.7.1 Flight Crew Training Course
16.7.1.1 The Seller shall perform a flight crew training course program (standard transition course or a cross crew qualification program as applicable) for [***] of each Operators flight crews, each of which shall consist of one (1) captain and one (1) first officer, as defined in Appendix A to this Clause 16. The training manual used shall be the Sellers Flight Crew Operating Manual (FCOM), except for base Flight training, for which such Operators customized FCOM shall be used.
16.7.1.2 Base Flight Training
16.7.1.2.1 Each Operator shall use its delivered Aircraft, or any other aircraft operated by such Operator, for any base flight training, which shall not exceed [***] per pilot, according to the related Airbus training course definition.
16.7.1.2.2 In the event of it being necessary to ferry the relevant Operators delivered Aircraft to the location where the base flight training shall take place, the additional flight time required for the ferry flight to and/or from the base training field shall not be deducted from the base flight training allowance.
However, if the base flight training is performed outside of the zone where the Seller usually performs such training, the ferry flight to the location where the base flight training shall take place shall be performed by a crew composed of the Sellers and/or the relevant Operators qualified pilots, in accordance with the Aviation Authorities regulations related to the place of performance of the base flight training.
16.7.2 Flight Crew Line Initial Operating Experience
16.7.2.1 To assist each Operator with initial operating experience after Delivery of the first Aircraft to such Operator, the Seller shall provide to the relevant Operator pilot instructor(s) as defined in Appendix A to this Clause 16.
16.7.2.2 The relevant Operator shall reimburse the expenses for [***]. Additional pilot instructors can be provided at such Operators expense and upon conditions to be mutually agreed upon.
[***] Confidential treatment requested by AerCap Holdings N.V.
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16.7.3 Instructor Cabin Attendants Familiarization Course
The Seller shall provide instructor cabin attendants course(s) to each Operators cabin attendants, as defined in Appendix A to this Clause 16, at one of the locations defined in Clause 16.3.1.
The instructor cabin attendants course, when incorporating the features of the relevant Operators Aircraft, can be given at the earliest two (2) weeks before the Delivery Date of such Operators first Aircraft.
16.7.4 Performance / Operations Course
The Seller shall provide performance/operations training for each Operators personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Sellers applicable Training Courses Catalog.
16.7.5 Transition Type Rating Instructor (TRI) Course
The Seller shall provide transition type rating instructor (TRI) training for each Operators flight crew instructors as defined in Appendix A to this Clause 16.
This course provides the Operators instructors with the training in flight instruction and synthetic instruction required to instruct on Airbus aircraft.
16.7.6 During any and all flights performed in accordance with this Clause 16.7, the relevant Operator shall bear full responsibility for the aircraft upon which the flight is performed, including but not limited to any required maintenance, all expenses such as fuel, oil or landing fees and the provision of insurance in line with Clause 16.12.
16.8 Maintenance Training
The Seller shall provide maintenance training for each Operators ground personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Sellers applicable Training Courses Catalog.
The relevant Operator shall provide the Seller with an attendance list of trainees at the latest one (1) month before the start of the training course.
The practical training provided in the frame of maintenance training is performed exclusively on the training devices in use in the Sellers Training Centers or Affiliated Training Centers.
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In the event of practical training on aircraft being requested by an Operator (as applicable), such practical training can be organized with the assistance of the Seller, in accordance with Clause 16.8.1 hereunder.
16.8.1 Practical Training on Aircraft
If the practical training does not need to be covered by an EASA Part 147 (or equivalent) certificate, the Seller may assist the Operator in organizing such practical training on aircraft, at the relevant Operators expense.
In the event of an Operator requiring a full EASA Part 147 certificate from the Seller, the practical training on aircraft shall be conducted by the Seller, at the relevant Operators expense, in a EASA Part 145 facility approved and selected by the Seller.
In the event of an Operator requiring such practical training to be conducted at the relevant Operators EASA Part 145 (or equivalent) approved facilities, such training shall be subject to prior approval by the Seller of the facilities at which the training is to be conducted.
The provision of an instructor by the Seller for the practical training shall be deducted from the trainee days allowance defined in Appendix A to this Clause 16, subject to the conditions detailed in Paragraph 3.2 thereof.
The relevant Operator shall reimburse the expenses for said instructor(s) in accordance with Clause 16.6.2.
16.8.2 Line Maintenance Initial Operating Experience Training
In order to assist the relevant Operator during the entry into service of the Aircraft, the Seller shall provide to each Operator maintenance instructor(s) at the relevant Operators base as defined in Appendix A to this Clause 16.
16.8.2.1 This line maintenance training shall cover training in handling and servicing of Aircraft, flight crew / maintenance coordination, use of Technical Data and any other activities that may be deemed necessary after Delivery of the first Aircraft to the relevant Operator.
16.8.2.2 The relevant Operator shall reimburse the expenses for said instructor(s) in accordance with Clause 16.6.2. Additional maintenance instructors can be provided at the Operators expense.
16.9 Supplier and Propulsion System Manufacturer Training
Upon the Buyers or its Operators request, the Seller shall provide to the Buyer or its Operator (as applicable) the list of the maintenance and
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overhaul training courses (the Supplier Training Catalog) provided by major Suppliers and the applicable Propulsion Systems Manufacturer on their products.
16.10 Training Aids for the Buyers or its Operators Training Organisation
16.10.1 With respect to each Aircraft, the Seller shall provide to the Buyer or its Operator (as applicable) training aids, including the Airbus Computer Based Training (Airbus CBT), as used in the Sellers Training Centers, and the Virtual Aircraft (Walk around and Component Location), free of charge as defined in Appendix A to this Clause 16.
The Airbus CBT and training aids supplied to the Buyer and its Operator (as applicable) shall be similar to those used in the Sellers Training Centers for the training provided for the Buyer or its Operators (as applicable). The Airbus CBT and Virtual Aircraft in use at the Sellers Training Centers are revised on a regular basis and with respect to each Aircraft, such revision shall be provided to the Buyer or its Operator (as applicable) during the period when training courses provided under Appendix A of this Clause 16 are performed for the Buyer or its relevant Operator or up to three (3) years after delivery of the Airbus CBT or the Virtual Aircraft to the Buyer or its relevant Operator (as applicable) under this Agreement, whichever first occurs.
16.10.2 Delivery
16.10.2.1 With respect to each Aircraft, the Seller shall deliver to the Buyer or its Operator (as applicable) the Airbus CBT and training aids, as defined in Appendix A to this Clause 16, at a date to be mutually agreed during the Training Conference.
16.10.2.2 The items supplied to the Buyer or its Operators (as applicable) pursuant to Clause 16.10.1 shall be delivered FCA Toulouse, Blagnac Airport. Title to and risk of loss of said items shall pass to the Buyer upon delivery.
16.10.2.3 All costs related to transportation and insurance of said items from the FCA point to the Buyers or its Operators (as applicable) facilities shall be at the Buyers or its Operators (as applicable) expense.
16.10.3 Installation of the Airbus CBT
16.10.3.1.1 With respect to each Aircraft, before the initial delivery of the Airbus CBT, as defined in Appendix A hereto, the Seller shall provide to up to six (6) trainees of the Buyer or its Operator, at the Buyers or its Operators facilities, the Airbus CBT Administrator Course, as defined in Appendix C hereto.
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To conduct the course, the workstations and/or Servers, as applicable, shall be ready for use and shall comply with the latest Airbus CBT Workstation Technical Specification or Airbus CBT Server Technical Specification, as applicable (collectively the Airbus CBT Technical Specification).
16.10.3.1.2 The Airbus CBT shall be installed by the Buyers or its Operators (as applicable) personnel, who shall have followed the Airbus CBT Administrator Course. The Seller shall be held harmless from any injury to person and/or damage to property caused by or in any way connected with the handling and/or installation of the Airbus CBT by the Buyers or its Operators (as applicable) personnel.
16.10.3.2 Upon the Buyers or its Operators (as applicable) request and subject to conditions to be quoted by the Seller, the Seller may assist the Buyer or its Operator (as applicable) with the initial installation of the Airbus CBT at the Buyers or its Operators (as applicable) facilities. Such assistance shall follow notification in writing that the various components, which shall be in accordance with the specifications defined in the Airbus CBT Technical Specification, are ready for installation and available at the Buyers or is Operators (as applicable) facilities.
16.10.3.3 The Buyer or its Operator (as applicable) shall reimburse the expenses in accordance with Clause 16.6.2, for the Sellers personnel required at the Buyers or its Operators (as applicable) facilities to conduct the Airbus CBT Administrator Course and/or provide installation assistance.
16.10.4 Licences
16.10.4.1 Airbus CBT License
16.10.4.1.1 The Seller shall grant the Buyer a Licence to use the Airbus CBT, under conditions defined in Appendix C to this Clause 16.
16.10.4.1.2 Supply of sets of CBT Courseware, as defined in Appendix C, and additional to those indicated in Appendix A, as well as any extension to the Licence of such CBT Courseware, shall be subject to terms and conditions to be mutually agreed.
16.10.4.2 Virtual Aircraft License
16.10.4.2.1 The Seller shall grant the Buyer a Licence to use the Virtual Aircraft, under conditions defined in Appendix C to this Clause 16. For the purpose of such Licence, the term Airbus CBT as used in such License shall mean the Virtual Aircraft.
16.10.4.2.2 Supply of sets of Virtual Aircraft Software, as defined in Appendix C, and additional to those indicated in Appendix A, as well as any extension to
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the Licence of such Virtual Aircraft Software, shall be subject to terms and conditions to be mutually agreed.
16.10.5 The Seller shall not be responsible for and hereby disclaims any and all liabilities resulting from or in connection with the use by the Buyer of the Airbus CBT, the Virtual Aircraft and any other training aids provided under this Clause 16.10.
16.11 Proprietary Rights
The Sellers training data and documentation, Airbus CBT, Virtual Aircraft and training aids are proprietary to the Seller and/or its Affiliates and/or its suppliers and the Buyer agrees not to disclose the content of the courseware or any information or documentation provided by the Seller in relation to training, in whole or in part, to any third party without the prior written consent of the Seller.
16.12 Indemnities and Insurance
INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE TO THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.
THE BUYER OR ITS OPERATOR (AS APPLICABLE) WILL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.
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APPENDIX A TO CLAUSE 16
TRAINING ALLOWANCE
For the avoidance of doubt, all quantities indicated below are the total quantities granted for the [whole of the Buyers fleet under this Agreement, unless otherwise specified.
1 FLIGHT OPERATIONS TRAINING
1.1 Flight Crew Training (standard transition course or cross crew qualification (CCQ) as applicable)
With respect to each Aircraft, the Seller shall provide flight crew training including LVO (standard transition course or CCQ as applicable) free of charge for [***] of the relevant Operators flight crews, which shall consist of [***] per firmly ordered Aircraft.
1.2 Flight Crew Line Initial Operating Experience
The Seller shall provide to the relevant Operator pilot instructor(s) free of charge for a period of [***] pilot instructor [***] per Aircraft.
1.2.1 The maximum number of pilot instructors present at any one time shall be limited to three (3) pilot instructors, unless otherwise mutually agreed.
1.2.2 The Seller shall provide to the Buyer 3 instructor cabin attendants familiarization courses per firmly ordered Aircraft.
1.3 Performance / Operations Course(s)
1.3.1 The Seller shall provide to the Buyer [***] trainee days of performance / operations training free of charge for each Initial Operator personnel per Initial Operator.
1.3.2 The above trainee days shall be used solely for the performance/operations training courses as defined in the Sellers applicable Training Course Catalog.
1.4 Transition Type Rating Instructor (TRI) course
The Seller shall provide to the Operator one (1) transition type rating instructor training (transition or CCQ, as applicable) free of charge per Aircraft.
[***] Confidential treatment requested by AerCap Holdings N.V.
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2 MAINTENANCE TRAINING
2.1 Maintenance Training Courses
2.1.1 The Seller shall provide to the Buyer [***] trainee days of maintenance training free of charge for each Operators personnel per Aircraft.
2.1.2 The above trainee days shall be used solely for the Maintenance training courses as defined in the Sellers applicable Training Courses Catalog.
2.1.3 Within the trainee days allowance in Paragraph 2.1.1 above, the number of Engine Run-up courses shall be limited to one (1) course for three (3) trainees per firmly ordered Aircraft and to a maximum of nine (9) courses in total.
3 TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
3.1 For instruction at the Sellers Training Centers or Affiliated Training Centers: one (1) day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees originally registered at the beginning of the course shall be counted as the number of trainees to have taken the course.
3.2 For instruction outside of the Sellers Training Centers or Affiliated Training Centers: one (1) day of instruction by one (1) Seller instructor equals the actual number of trainees attending the course or a minimum of twelve (12) trainee days.
3.3 For practical training, one (1) day of instruction by one (1) Seller instructor equals the actual number of trainees attending the course or a minimum of six (6) trainee days.
3.4 In the event of training being provided outside of the Sellers Training Centers or Affiliated Training Centers specifically at the Sellers request, Paragraph 3.1 hereabove shall be applicable to the trainee days accounting for such training.
4 TRAINING AIDS FOR BUYERS TRAINING ORGANISATION
The Seller shall provide to the Buyer free of charge:
one (1) Airbus CBT (flight and/or maintenance) related to the Aircraft type(s) as covered by this Agreement (including one (1) set of CBT Courseware and one (1) set of CBT Software for flight and one (1) set of CBT Courseware and one (1) set of CBT Software for maintenance, as
[***] Confidential treatment requested by AerCap Holdings N.V.
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applicable). The detailed description of the Airbus CBT shall be provided to the Buyer at the Training Conference;
one (1) Virtual Aircraft (Walk around and Component Location) related to the aircraft type (s) as covered in this Agreement;
one (1) set of training documentation on CD-ROM;
one (1) CD-ROM of cockpit panels for training.
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APPENDIX B TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
The prerequisites listed below are the minimum recommended requirements specified for Airbus training. If the appropriate Aviation Authorities or the specific airline policy of the trainee demand greater or additional requirements, they shall apply as prerequisites.
FLIGHT CREW Standard Transition Courses)
Captain prerequisites:
Previously qualified on JAR/FAR/CS 25 aircraft and commercial operations
Valid and Current Airline Transport Pilot License (ATPLY)
Previous command experience
Fluency in English (able to write, read and communicate at an adequately understandable level in English language)
Jet experience
Flight time:
1500 hours as pilot
1000 hours on JAR/FAR/CS 25 aircraft
200 hours experience as airline, corporate or military transport pilot
First Officer prerequisites:
Previously qualified on JAR/FAR/CS 25 aircraft and commercial operations
Aircraft and commercial operations valid and current CPL (Commercial pilot license) with Instrument rating,
Fluency in English (able to write, read and communicate at an adequately understandable level in English language)
Jet experience
Flight time:
100
500 hours as pilot
300 hours on JAR/FAR/CS 25 aircraft
200 hours experience as airline, corporate or military transport pilot
If the Trainee does not speak English or is not fluent enough to follow the Standard Transition course, he shall follow the Adapted language transition and provide a translator as indicated by the Seller.
If no Jet experience, both CAPTAIN and/or FIRST OFFICER must follow before entering the transition course, a dedicated Jet Familiarization entry level course. Such course(s), if required, shall be at the Buyers or the relevant Operators expense (as applicable).
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First type rating course
This course is designed for Ab initio pilots who do not hold an aircraft type rating on their pilot license
Pilot prerequisites
Valid and current CPL (commercial pilot license)
Valid and current Instrument Rating on multi engine aircraft
APTLY written examination
Fluency in English (able to write, read and communicate at an adequately understandable level in English language)
Flight experience:
220 hours as pilot
100 hours as pilot in command (PlC)
25 hours on multi engine aircraft (up to 10 hours can be completed in a simulator)
In addition to the above conditions and in accordance to the JAR Flight Crew Licensing (FCL) and the Airbus Training Policy, a pilot applying for a first type rating must have followed either an approved JAR Multi Crew Cooperation (MCC) program or regulatory equivalent or the Airbus Entry Level Training (ELT) program (combined MCC and Jet familiarization course). Such course, if required, shall be at the relevant Operators expense.
CCQ additional prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard Transition Course, both CAPTAIN and FIRST OFFICER must:
be qualified and current on the base aircraft type
have 150 hours minimum and 3 months minimum of operations on the base aircraft type.
TRI course additional prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard Transition Course, it is the responsibility of the relevant Operator to:
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select instructor candidate(s) with airmanship and behaviour corresponding to the role and responsibility of an airline instructor
designate instructor candidate(s) with the Airbus prerequisite, which corresponds to the JAR requirements (ref JAR FCL 1 Requirements/ Subparts H Instructor rating (Aeroplane)
Performance and Operations personnel prerequisites
The relevant Operators performance and operations personnel shall be fluent in English (able to write, read and communicate at an adequately understandable level in English language).
All further detailed prerequisites shall be provided by the Seller to the Buyer and its Operator during the Training Conference, depending on the type of training course(s) selected by the Buyer or its Operator as applicable.
Maintenance Personnel prerequisites
Fluency in English (understanding of English (able to write, read and communicate at an adequately understandable level in English language) adequate to be able to follow the training (If this is not the case, the Buyer or the relevant Operator (as applicable) shall assign a minimum of one (1) translator for eight (8) trainees).
Technical experience in the line or/and base maintenance activity of commercial jet aircraft
Additional prerequisites for Aircraft Rigging Course
Qualification as line or line and base mechanic on one type of Airbus aircraft family
Additional prerequisites for Maintenance Initial Operating Experience
Qualification as line or line and base mechanic on the concerned Airbus aircraft type (for Course)
Maintenance Training Difference Courses additional prerequisites
In addition to the prerequisites set forth for Maintenance Personnel, the personnel shall be current and operating on the base aircraft
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APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING
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LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING (AIRBUS CBT)
1 DEFINITIONS
1.1 For the purpose of this Airbus CBT Licence (the Airbus CBT Licence), the following definitions shall apply:
Agreement means the aircraft purchase agreement dated December_, 2005 and entered into between the Seller and the Buyer with respect to up to seventy (70) Airbus A320 formerly aircraft including all exhibit appendices and letter agreements attached thereto and as the same may be modified in writing by the parties thereto from time to time.
1.1.1 Airbus CBT means the combination of the Airbus CBT Software and the Airbus CBT Courseware.
1.1.2 Airbus CBT Courseware means the programmed instructions that provide flight crew and maintenance training.
1.1.3 Airbus CBT Software means the system software that permits the use of the Airbus CBT Courseware.
1.1.4 Student/Instructor Mode means the mode that allows the Buyer to run the Airbus CBT Courseware.
1.1.5 Airbus CBT Administrator Course means the training enabling the Buyer to load and use the Airbus CBT either on stand-alone workstations or in a Server mode.
1.1.6 Network means the group of the Buyers computers connected to each other through cables and allowing the transmission of data and instructions, which can be used by all of the Buyers computers so linked.
1.1.7 Server means the computer dedicated to the administration of a Network and on which the Airbus CBT is installed and can be reached through the Network.
1.1.8 Technical Specification means either the Airbus CBT Workstation Technical Specification or the Airbus CBT Server Technical Specification, as applicable.
1.1.9 Intranet means the Buyers private and local Network using the same technical protocols as internet but which is not open to public connection.
1.1.10 Extranet means the network constituted of an external lntranet, allowing communication between the Buyer and certain defined external entities.
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1.1.11 User Guide means the documentation, which may be in electronic format, designed to assist the Buyer to use the Airbus CBT.
1.1.12 Term has the meaning ascribed thereto in Clause 4 of this Airbus CBT Licence.
1.2 Capitalised terms used herein and not otherwise defined in this Airbus CBT Licence shall have the meaning assigned thereto in this Agreement.
1.3 Any and all hardware required for the operation of the Airbus CBT is not part of the Airbus CBT and shall be procured under the sole responsibility of the Buyer. The Seller shall not be responsible for any incompatibility of such hardware with the Airbus CBT.
2 GRANT
The Seller grants the Buyer the right, pursuant to the terms and conditions herein, to use the Airbus CBT for the Term of this Airbus CBT Licence.
3 COPIES
Use of the Airbus CBT is limited to the number of copies delivered by the Seller to the Buyer and to the medium on which the Airbus CBT is delivered. No reproduction shall be made without the prior written consent of the Seller. Notwithstanding the above, specific rights as detailed hereafter shall be granted for respectively the Airbus CBT Software and the Airbus CBT Courseware.
3.1 Airbus CBT Software
The Buyer shall be permitted to copy the Airbus CBT Software for back-up and archiving purposes and for loading of the Airbus CBT Software exclusively on the Buyers workstations or Server, as applicable. In such cases, the Buyer shall advise the Seller in writing of the number of any copies made. Any other copy for any other purpose is strictly prohibited.
3.2 Airbus CBT Courseware
The Buyer shall be permitted to copy the Airbus CBT Courseware for the sole purpose of internal training of the Buyers personnel, explicitly such copies shall be used by the Buyers employees only on their laptops for training purposes.
In such cases, the Buyer shall advise the Seller in writing of the number of copies made and shall cause its employees to strictly comply with the conditions of use and the confidentiality provisions of this Airbus CBT Licence. In particular, the Buyers employees shall agree to use such copy for training purposes only and to make no additional copy. The
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Buyer shall further ensure that any copy provided to an employee is returned to the Buyer either upon request by the Buyer or upon termination of the employment of the employee. Any other copy for any other purpose is strictly prohibited.
3.3 Any copy made by the Buyer shall be performed under the sole responsibility of the Buyer The Buyer agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Buyer makes of the Airbus CBT Software or the Airbus CBT Courseware. The Seller shall not provide revision service for any copies made.
4 TERM
The rights under this Airbus CBT Licence shall be granted to the Buyer for as long as the Buyer operates or owns the Sellers Aircraft model to which the Airbus CBT Software and the Airbus CBT Courseware apply (the Term). At the end of the Term, the Buyer shall return the Airbus CBT and any copies thereof to the Seller, accompanied by a note certifying that the Buyer has returned all existing copies.
5 PERSONAL ON-SITE LICENCE
The sole right granted to the Buyer under this Airbus CBT Licence is the right to use the Airbus CBT. The Airbus CBT Licence is personal to the Buyer, for its own internal use, and is non-exclusive. Save with the prior written consent of the Seller, the Buyer shall not assign or transfer this Airbus CBT Licence to any third party.
6 CONDITIONS OF USE
6.1 The Buyer shall:
do its utmost to maintain the Airbus CBT and the relating documentation in good working condition, in order to ensure the correct operation thereof;
use the Airbus CBT in accordance with such documentation and the User Guide, and ensure that the staff using the Airbus CBT has received the appropriate training;
use the Airbus CBT exclusively in the technical environment defined in the Technical Specification, except as otherwise agreed in writing between the parties;
use the Airbus CBT for its own internal needs and on its Network, when technically possible, only and exclusively on the machine referenced and the site declared;
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not transmit the Airbus CBT electronically by any means, nor use the Airbus CBT on either the internet, Intranet or Extranet;
not alter, reverse engineer, modify or adapt the Airbus CBT, or integrate all or part of the Airbus CBT in any manner whatsoever into another software product;
not correct the Airbus CBT, except that such correction right may exceptionally be granted to the Buyer by the Seller in writing;
not translate, disassemble or decompile the Airbus CBT Software or create a software product derived from the Airbus CBT Software;
not attempt to or authorise a third party to discover or re-write the Airbus CBT source codes in any manner whatsoever;
not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights provided in the Airbus CBT by the Seller;
not pledge, sell, distribute, grant, sub-license (without the prior written consent of the Seller), lease, lend, whether on a free-of-charge basis or against payment, or permit access on a time-sharing basis or any other utilisation of the Airbus CBT, whether in whole or in part, for the benefit of a third party;
other than pursuant to or an assignment or transfer of this Airbus CBT Licence to which the Seller has given its express consent, not permit any third party to use the Airbus CBT in any manner, including but not limited to, any outsourcing, loan, commercialisation of the Airbus CBT or commercialisation by merging the Airbus CBT into another software or adapting the Airbus CBT, without prior written consent from the Seller.
The Seller shall be entitled, subject to providing reasonable prior written notice thereof to the Buyer and subject to any such inspections not disturbing the Buyers or the Operators (as applicable) work or operations, to come and verify in the Buyers facilities whether the conditions specified in this Airbus CBT License are respected. This shall not however commit the responsibility of the Seller in any way whatsoever.
6.2 Use of the Airbus CBT Software
Notwithstanding Clause 6.1 above, the Buyer shall use the Airbus CBT Software for the exclusive purpose of, for the student delivery mode:
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(i) rostering students for one or several courses syllabi in order to follow students progression,
(ii) rearranging courses syllabi or creating new ones using available courseware modules.
However, the Seller disclaims any responsibility regarding any course(s) that may be modified or rearranged by the Buyer.
6.3 Use of the Airbus CBT Courseware
Notwithstanding Clause 5 above, the Buyer shall use the Airbus CBT Courseware for the exclusive purpose of performing training of its personnel, or of third party personnel contracted to perform maintenance work on the Buyers Aircraft on behalf of the Buyer. Such training shall be performed exclusively at the Buyers facility.
7 PROPRIETARY RIGHTS AND NON DISCLOSURE
The Airbus CBT Software and Airbus CBT Courseware, the copyrights and any and all other author rights, intellectual, commercial or industrial proprietary rights of whatever nature in the Airbus CBT Software and Airbus CBT Courseware are and shall remain with the Seller and/or its Affiliates or suppliers, as the case may be. The Airbus CBT Software and Airbus CBT Courseware and their contents are designated as confidential. The Buyer shall not take any commercial advantage by copy or presentation to third parties of the Airbus CBT Software, the documentation, the Airbus CBT Courseware, and/or any rearrangement, modification or copy thereof.
The Buyer acknowledges the Sellers proprietary rights in the Airbus CBT and undertakes not to disclose the Airbus CBT Software or Airbus CBT Courseware or parts thereof or their contents to any third party without the prior written consent of the Seller. Insofar as it is necessary to disclose aspects of the Airbus CBT Software and Airbus CBT Courseware to the Buyers personnel, such disclosure is permitted only for the purpose for which the Airbus CDT Software and Airbus CBT Courseware are supplied to the Buyer under the present Airbus CBT Licence.
8 WARRANTY
8.1 The Seller warrants that the Airbus CBT is prepared in accordance with the state of art at the date of its conception. Should the Airbus CBT be found to contain any non-conformity or defect, the Buyer shall promptly notify the Seller thereof and the sole and exclusive liability of the Seller under this Clause 8.1 shall be to correct the same at its own expense.
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8.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THE AIRBUS CBT LICENCE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER AND/OR ITS SUPPLIERS EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN THE AIRBUS CBT DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLERS AND/OR ITS SUPPLIERS NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR THE AIRBUS CBT DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN THE AIRBUS CBT DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 8.2, THE SELLER SHALL INCLUDE THE SELLER, AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 8 SHALL CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE BUYER OR ANY AFFILIATE OR THE BUYER OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER TO THE BUYER OR ITS AFFILIATE PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER OR SUCH AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
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THE PROVISIONS OF THIS CLAUSE 11 SHALL BE WITHOUT PREJUDICE TO THE PROVISIONS OF CLAUSE 12.5, CLAUSE 14.9 AND CLAUSE 14.11 OF THIS AGREEMENT, CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THE AGREEMENT AND CLAUSE 11 OF ANY SOFTWARE LICENCE AND THE OBLIGATIONS OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
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17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
17.1 Equipment Supplier Product Support Agreements
17.1.1 The Seller has obtained enforceable and transferable product support agreements from Suppliers of Seller Furnished Equipment listed in the Specification.
17.1.2 These agreements are based on the World Airlines Suppliers Guide and include Supplier commitments as contained in the Supplier Product Support Agreements which include the following provisions:
17.1.2.1 Technical data and manuals required to operate, maintain, service and overhaul the Supplier Parts. Such technical data and manuals shall be prepared in accordance with the applicable provisions of ATA Specification 2200 (iSpec2200) Information Standards for Aviation Maintenance (Revision 2005 or latest applicable) including revision service and be published in the English language. The Seller shall recommend that software data, where applicable, be supplied in the form of an appendix to the Component Maintenance Manual, such data shall be provided in compliance with the applicable ATA Specification.
17.1.2.2 Warranties and guarantees including standard warranties. In addition, landing gear Suppliers shall provide service life policies for selected structural landing gear elements.
17.1.2.3 Training to ensure efficient operation, maintenance and overhaul of the Supplier Parts for the Buyers instructors, shop and line service personnel.
17.1.2.4 Spares data in compliance with ATA 200/2000 Specification, initial provisioning recommendations, spare parts and logistic service including routine and expedited deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier Parts as well as required tooling and spares provisioning.
17.2 Supplier Compliance
The Seller shall monitor Supplier compliance with support commitments defined in the Supplier Product Support Agreements and shall take remedial action together with the Buyer and/or Operators if requested by the Buyer and/or Operators.
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18 BUYER FURNISHED EQUIPMENT
18.1 Administration
18.1.1 With respect to each Aircraft, without additional charge, the Seller shall provide for the installation and testing of those items of equipment which are identified in the Specification as being furnished by the Buyer (Buyer Furnished Equipment or BFE), provided that they are referred to in the Airbus BFE Catalog of Approved Suppliers by Products valid at time of ordering of the concerned BFE.
The Seller shall advise the Buyer of the dates by which, in the planned release of engineering for the relevant Aircraft, the Seller requires a written detailed engineering definition including the description of the dimensions and weight of BFE, the information related to its certification and information necessary for the installation and operation thereof. The Buyer shall furnish such detailed description and information by the dates so specified. Such information, dimensions and weights shall not thereafter be revised unless authorised by a Specification Change Notice.
The Seller shall also furnish in due time to the Buyer a schedule of dates and indication of shipping addresses for delivery of BFE and, where requested by the Seller, additional spare BFE to permit installation in the relevant Aircraft and delivery of the relevant Aircraft in accordance with the delivery schedule. The Buyer shall provide such equipment by such dates in a serviceable condition, in order to allow performance of any assembly, test, or acceptance process in accordance with the industrial schedule.
The Buyer shall also provide, when requested by the Seller, at AIRBUS FRANCE S.A.S. works in TOULOUSE (FRANCE) and/or at AIRBUS DEUTSCHLAND GmbH, Division Hamburger Flugzeugbau Works in HAMBURG (FEDERAL REPUBLIC OF GERMANY) adequate field service including support from BFE suppliers to act in a technical advisory capacity to the Seller in the installation, calibration and possible repair of any BFE.
18.1.2 The Seller shall be entitled to refuse any item of BFE which it considers incompatible with the Specification, the above mentioned engineering definition or the certification requirements.
18.1.3 The BFE shall be imported into FRANCE or into the FEDERAL REPUBLIC OF GERMANY by the Buyer under a suspensive customs system (Régime de lentrepôt industriel pour fabrication coordonnée or Zollverschluss) without application of any French or German tax or customs duty, and shall be Delivered Duty Unpaid (DDU) according to the Incoterms definition.
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Shipping Addresses:
AIRBUS FRANCE S.A.S.
316 Route de Bayonne
31300 TOULOUSE
FRANCE
or
AIRBUS DEUTSCHLAND GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
FEDERAL REPUBLIC OF GERMANY
as provided in Clause 18.1.
18.1.4 If the Buyer requests the Seller to supply directly certain items which are considered as BFE according to the Specification and if such request is notified to the Seller in due time in order not to affect the Scheduled Delivery Month of the relevant Aircraft, the Seller may agree to order such items subject to the execution of a Specification Change Notice reflecting the effect on price, escalation adjustment, and any other conditions of this Agreement. In such a case the Seller shall be entitled to the payment of a reasonable handling charge and shall bear no liability in respect of delay and product support commitments for such items which shall be the subject of separate arrangements between the Buyer and the relevant supplier.
18.2 Aviation Authorities Requirements
The Buyer is responsible for, at its expense, and warrants that BFE shall be manufactured by a qualified supplier, shall meet the requirements of the applicable Specification, shall comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, shall be approved by the EASA and the Designated Authorities delivering the Export Certificate of Airworthiness and by the Buyers Aviation Authority for installation and use on the Aircraft at the time of Delivery of such Aircraft.
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18.3 Buyers Obligation and Sellers Remedies
18.3.1 Any delay or failure in complying with the foregoing warranty or in providing the descriptive information or service representatives mentioned in Clause 18.1 or in furnishing the BFE in serviceable condition at the requested delivery date or in obtaining any required approval for such equipment under the above mentioned Aviation Authorities regulations may delay the performance of any act to be performed by the Seller, and cause the Final Price of the relevant Aircraft to be adjusted in accordance with the updated delivery schedule and to include in particular the amount of the Sellers additional reasonable costs, attributable to such delay or failure such as storage, taxes, insurance and costs of out-of sequence installation.
18.3.2 Further, in any such event, the Seller may:
(i) select, purchase and install an equipment similar to the involved one, in which event the Final Price of the affected Aircraft shall also be increased by the purchase price of such equipment plus reasonable costs and expenses incurred by the Seller for handling charges, transportation, insurance, packaging and if so required and not already provided for in the price of the relevant Aircraft for adjustment and calibration; or
(ii) if the BFE shall be so delayed by more than thirty (30) days after the date specified by the Seller for the delivery of such Buyer Furnished Equipment, or unapproved within thirty (30) days after the date specified by the Seller for the delivery of such Buyer Furnished Equipment (and in each case, unless the Seller is in a position to allow, with no costs to the Seller, a longer delay period) deliver the relevant Aircraft without the installation of such equipment, notwithstanding the terms of Clause 7 insofar as it may otherwise have applied, and the Seller shall thereupon be relieved of all obligations to install such equipment. The Buyer may also elect to have the relevant Aircraft so delivered.
18.4 Title and Risk of Loss
Title to and risk of loss of any BFE shall at all times remain with the Buyer except that risk of loss (limited to cost of replacement of said BFE and excluding in particular loss of use) shall be with the Seller for as long as such BFE shall be under the care, custody and control of the Seller.
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18.5 Seller-Supplied Buyer Furnished Equipment
18.5.1 General
With respect to each Aircraft, subject to the provisions of this sub-Clause 18.5, the Buyer has the right to request the Seller, no later than fifteen (15) months prior to the relevant Scheduled Delivery Month , to supply directly all (but not some) of the items that are referenced as Buyer Furnished Equipment pursuant to the Standard Specification and Exhibit B Baseline for all the Aircraft, such items to be procured from the Approved List as referred to in sub-Clause 18.5.2 below. If compliance with such request by the Seller in its judgment will not affect the Delivery Date of the Aircraft referred to in Clause 9, then the Seller will order such items as Seller-Supplied Buyer Furnished Equipment (SSBFE) subject to the execution of an SCN amending the Exhibit B Baseline and reflecting the effect on price and any other items and conditions of this Agreement.
In the event that it becomes evident, before signing an SCN for any SSBFE, that an Approved Supplier as referred to in sub-Clause 18.5.2 below selected by the Buyer cannot meet the Sellers required leadtimes for orders and deliveries for the corresponding equipments, the Seller shall inform the Buyer forthwith and both parties shall define a mutually agreeable alternative solution.
Following agreement between the Buyer and the Seller as to the specification and selection of the SSBFE, the Seller shall procure the selected equipment directly from the respective Approved Suppliers as referred to in sub-Clause 18.5.2 below and shall be responsible for such SSBFE as if it were Seller Furnished Equipment (SFE), and shall manage the logistic and handling process, testing and installation of the SSBFE into the Aircraft. For the avoidance of doubt, the provisions of sub-Clauses 18.2 and 18.3 will not therefore apply to SSBFE covered under this sub-Clause 18.5 in the event of any delay in approval or delivery of such SSBFE, provided that (i) such SSBFE has been ordered from the then current Approved List as referred to in sub-Clause 18.5.2 below; and (ii) the Buyer has duly selected SSBFE and executed the relevant SCN within the leadtimes indicated by the Seller.
18.5.2 Price
For the purposes of selection of SSBFE as provided for in the above paragraph, the Seller shall provide the Buyer with a list (the Approved List) indicating BFE Suppliers (Approved Suppliers) and BFE items approved by Airbus together with a basic catalogue price from which the Buyer shall make its equipment selection. The Seller shall provide the Buyer with such Approved List within three (3) months following execution
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of the Purchase Agreement, provided always that such Approved List remains subject to revision by the Seller from time to time.
Upon Delivery and technical acceptance of each Aircraft, the Buyer shall pay to the Seller the actual invoice amount paid by the Seller for the SSBFE, it being understood and agreed that the Buyer shall negotiate directly with the selected Approved Suppliers the amount of any price discounts or other incentives that the respective suppliers may give for the direct benefit of the Buyer.
The incorporation of BFE as SSBFE shall be subject to the payment by the Buyer of handling charge limited to [***] of the sum of the actual invoice amount paid by the Seller for such equipment less any price discounts negotiated by the Buyer with the selected Approved Suppliers (and the Buyer agrees to furnish full copies of any such discount agreements/arrangements to the Seller at least forty (40) days prior to any Aircraft Delivery to enable the Seller to calculate the appropriate handling charge). [***]. The product support provisions applicable to the equipment that the Buyer shall have designated as SSBFE shall be as negotiated between the Buyer and the relevant Approved Suppliers, and as further negotiated between the Buyer and such suppliers.
For the avoidance of doubt, the Seller reserves the right to refuse to supply as SSBFE any BFE items which the Buyer chooses to select from BFE suppliers not listed in the then current Approved List.
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19 INDEMNIFICATION AND INSURANCE
19.1 Indemnities Relating to Inspection, Technical Acceptance Process and Ground Training
19.1.1 The Seller shall, except in case of Gross Negligence of the Buyer, its directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Buyer, its directors, officers, agents and employees, and its Affiliates from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of loss of or damage to the Sellers property and/or injury to or death of the directors, officers, agents or employees of the Seller and/or from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) for any damage caused by the Seller to third parties arising out of or in any way connected with any ground check, check or controls under Clause 6 or Clause 8 of this Agreement and/or Ground Training Services and for any damage caused by the Buyer and/or the Seller to third parties arising out of or in any way connected with technical acceptance flights under Clause 8 of this Agreement.
19.1.2 The Buyer shall, except in case of Gross Negligence of the Seller, its directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates, and its Suppliers from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of loss of or damage to the Buyers property and/or injury to or death of the directors, officers, agents or employees of the Buyer and/or from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) for any damage caused by the Buyer to third parties, arising out of or in any way connected with any ground check, check or controls under Clause 6 or Clause 8 of this Agreement and/or Ground Training Services.
The indemnity in Clause 19.1.2 shall not apply with respect to the Sellers legal liability to any person other than the Buyer, its directors, officers, agents or employees arising out of and an accident caused solely by a product defect in the Aircraft.
19.2 Indemnities Relating to Training on Aircraft after Delivery
19.2.1 The Buyer shall, except in the case of Gross Negligence of the Seller, its directors, officers, agents and employees, be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates, and its Suppliers from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) incident thereto or incident to successfully establishing the right to indemnification, for injury to or death
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of any person (including any of the Buyers directors, officers, agents and employees utilising such training services, but not directors, officers, agents and employees of the Seller) and/or for loss of or damage to any property and/or for loss of use thereof arising (including the aircraft on which the training services are performed), arising out of or in any way connected to the performance of any Aircraft Training Services.
19.2.2 The foregoing indemnity shall not apply with respect to the Sellers legal liability towards any person other than the Buyer, its directors, officers, agents or employees arising out of an accident caused solely by a product defect in the Aircraft delivered to and accepted by the Buyer hereunder.
19.3 Indemnities relating to Seller Representatives Services
19.3.1 The Buyer shall, except in case of Gross Negligence of the Seller, its directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates, and its Suppliers from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) for all injuries to or death of persons (excepting injuries to or death of the Sellers Representatives) and for loss of or damage to property and/or loss of use thereof howsoever arising out of or in connection with the Sellers Representatives Services.
19.3.2 The Seller shall, except in case of Gross Negligence of the Buyer, its directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Buyer, its directors, officers, agents and employees, and its Affiliates from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) for all injuries to or death of the Sellers Representatives in connection with the Sellers Representatives Services.
19.4 Insurances
For all training periods on aircraft, the Buyer shall cause the Seller, as defined in Clause 19.5 hereof, its Affiliates and its Suppliers to be named as additional insureds under the Buyers Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils, to the extent of the Buyers undertaking set forth in Clause 19.2.1. With respect to the Buyers Hull All Risks and Hull War Risks insurances and Allied Perils, the Buyer shall cause the insurers of the Buyers hull insurance policies to waive all rights of subrogation against the Seller, as defined in Clause 19.5 hereof, its Affiliates and its Suppliers to the extent of the Buyers undertaking set forth in Clause 19.2.1.
Any applicable deductible shall be borne by the Buyer. With respect to the above policies, the Buyer shall furnish to the Seller, not less than seven
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(7) Working Days prior to the start of any such training period, certificates of insurance, in English, evidencing the limit of liability cover and period of insurance in a form acceptable to the Seller from the Buyers insurance broker(s) certifying that such policies have been endorsed as follows:
(i) under the Comprehensive Aviation Legal Liability Insurances, the Buyers policies are primary and non-contributory to any insurance maintained by the Seller;
(ii) such insurance can only be cancelled or materially altered by the giving of not less than thirty (30) days (but seven (7) days or such lesser period as may be customarily available in respect of War Risks and Allied Perils) prior written notice thereof to the Seller; and
(iii) under any such cover, all rights of subrogation against the Seller, its Affiliates and its Suppliers have been waived to the extent of the Buyers undertaking and specifically referring to Clause 19.2.1 and to this Clause 19.4.
19.5 Seller and Affiliates
For the purposes of this Clause 19, the Seller and its Affiliates include the Seller, its subsidiaries, Airbus North America Customer Services, Hua-Ou Airbus - CASC Aviation Training Center, its shareholders, each of the sub-contractors, the assignees of each of the foregoing, and their respective directors, officers, agents and employees.
19.6 Notice of Claims
If any claim is made or suit is brought against either party (or its respective directors, officers, agents or employees) for damages for which liability has been assumed by the other party in accordance with the provisions of this Agreement, the party against which a claim is so made or suit is so brought shall promptly give notice to the other party, and the latter shall (unless otherwise requested by the former party against which a claim is so made or suit is so brought, in which case the other party nevertheless shall have the right to) assume and conduct the defence thereof, or effect any settlement which it, in its opinion, deems proper.
19.7 Participation Agreement
19.8 With respect to each Aircraft, the provisions of Clause 19 are subject to the provisions of Clause 3 of any Participation Agreement.
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20 TERMINATION
20.1 Termination for Insolvency
In the event [***]:
(a) makes a general assignment for the benefit of creditors or becomes insolvent;
(b) flies a voluntary petition in bankruptcy;
(c) petitions for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets;
(d) commences under the laws of any competent jurisdiction any proceeding involving its insolvency, bankruptcy, readjustment of debt, liquidation or any other similar proceeding for the relief of financially distressed debtors;
(e) becomes the object of any proceeding or action of the type described in (c) or (d) above and such proceeding or action remains undismissed or unstayed for a period of at least [***] days; or
[***], to the full extent permitted by law, by written notice, terminate all or part of this Agreement.
20.2 Termination for Non-Payment of Predelivery Payments
If for any Aircraft the Buyer fails to make any Predelivery Payments at the time, in the manner and in the amount specified in Clause 5.3 and such delay continues for [***] Working Days the Seller may, by written notice, terminate all or part of this Agreement with respect to undelivered Aircraft.
20.3 Termination for Failure to Take Delivery
If the Buyer fails to comply with its obligations as set forth under Clause 8 and/or Clause 9, or fails to pay the Final Price of the Aircraft, the Seller shall have the right to put the Buyer on notice to do so within a period of [***] Working Days after the date of deemed delivery of such notification.
If the Buyer has not cured such default within such period of [***] Working Days after the date of deemed delivery of such notification, the Seller may, by written notice, terminate all or part of this Agreement with respect to undelivered Aircraft.
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All costs referred to in Clause 9.2.3 and relating to the period between the notified date of delivery (as referred to in Clause 9.2.3) and the date of termination of all or part of this Agreement shall be borne by the Buyer.
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20.4 Not Applicable
20.5 General
20.5.1 To the full extent permitted by law, the termination of all or part of this Agreement pursuant to Clauses 20.1, 20.2, 20.3 and 20.4 shall become effective immediately upon receipt by the [***] of the notice of termination sent by the [***] without it being necessary for [***] to take any further action or to seek any consent from the [***] or any court having jurisdiction.
20.5.2 The right for [***] under Clause 20.1 and for the Seller under Clauses 20.2, 20.3, and 20.4 to terminate all or part of this Agreement shall be without prejudice to any other rights and remedies available to [***] to seek termination of all or part of this Agreement before any court having jurisdiction pursuant to any failure by the [***] to perform its obligations under this Agreement.
20.5.3 If [***] taking the initiative of terminating this Agreement decides to terminate part of it only, the notice sent to the [***] shall specify those provisions of this Agreement which shall be terminated.
20.5.4 In the event of termination of this Agreement following a default from the Buyer, including but not limited to a default under Clauses 20.1, 20.2, 20.3 and 20.4, the Seller without prejudice to any other rights and remedies available under this Agreement or by law, shall retain all Predelivery Payments, commitment fees, option fees and any other moneys paid by the Buyer to the Seller under this Agreement and corresponding to the Aircraft, services, data and other items covered by such termination.
20.5.5 In the event of termination of this Agreement by the Buyer following an event relative to the Seller under sub-Clause 20.1, the Seller, without prejudice to any other rights and remedies available under this Agreement or by law, shall reimburse an amount equal to all Predelivery Payments paid by the Buyer to the Seller under this Agreement and corresponding to any undelivered Aircraft covered by such termination, together with interest thereon at [***] for the period from date of receipt to each such predelivery payments, commitment fees, option fees and any other monies paid by the Buyer to the Seller under this Agreement to date of reimbursement.
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21 ASSIGNMENTS AND TRANSFERS
21.1 Assignments by Buyer
Except as hereinafter provided, the Buyer may not sell, assign, novate or transfer its rights and obligations under this Agreement to any person without the prior written consent of the Seller, which shall not unreasonably be withheld.
21.1.1 Assignments for Predelivery Financing
The Buyer shall be entitled to assign its rights under this Agreement at any time in order to provide security for the financing of any Predelivery Payments subject to such assignment being in form and substance acceptable to the Seller. [***]
21.1.2 Assignments for Delivery Financing
The Buyer shall be entitled to assign its rights under this Agreement at any time in connection with the financing of its obligation to pay the Final Price subject to such assignment being in form and substance acceptable to the Seller.
21.2 Assignments by Seller
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21.2.1 Transfer of Rights and Obligations upon Restructuring
In the event that the Seller is subject to a corporate restructuring (the Restructuring) having as its object the transfer of, or succession by operation of law in, all or a substantial part of its assets and liabilities, rights and obligations, including those existing under this Agreement, to a person (the Successor) under the control of the ultimate controlling shareholders of the Seller at the time of that restructuring, for the purpose of the Successor carrying on the business carried on by the Seller at the time of the restructuring, such restructuring shall be completed without consent of the Buyer following notification by the Seller to the Buyer in writing, provided that the Buyers rights and obligations are not adversely affected by such Restructuring. The Buyer recognises that succession of the Successor to this Agreement by operation of law, which is valid under the law pursuant to which that succession occurs, shall be binding upon the Buyer.
21.3 Assignment in Case of Lease or Sale
21.3.1 In the context of the lease or sale of any Aircraft by the Buyer, and subject to the consent of the Seller, which consent shall not be unreasonably
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withheld (and shall be granted where the conditions referred to in clause 21 .3.2 are satisfied):
(Acceptance) and 9 (Delivery) to any such Operator or purchaser; and
(a) the Buyer may also sub-licence to any such Operator its rights under any Airbus CBT Licence or Software Licence entered into pursuant to this Agreement; and
(b) for the purposes of such assignment, transfer or delegation, the Buyer may disclose to the Operator or purchaser the provisions of clauses 8,9, 12, 13, 14, 15, 16, 17, 19 and 21 in so far as the same relate to such assignment, transfer or delegation
21.3.2 Any assignment under this Clause 21 .3 shall be subject to all of the following conditions:
(1) that the assignee agrees , in a form reasonably satisfactory to the Seller (and Seller agrees that execution by the Buyer and an Operator of an Assignment of Airframe Warranty and Support Rights and a Participation Agreement will fulfill this requirement), to be bound by all relevant terms, conditions and limitations of this Agreement (including without limitation Clauses 12, 13, 14, 15, 16, 17, 19 and 21), and
(2) that no assignment or transfer by the Buyer pursuant to this Clause 21 .3 shall subject the Seller to any liability, increased risk, costs or expenses to which it would not otherwise be subject hereunder or modify in any way the Sellers contractual rights hereunder, and
(3) no further assignment or transfer is permitted except in accordance with the provisions of this sub-Clause.
Provided that the above conditions are met, the Buyer shall be released from the obligations and liabilities of the Buyer so assumed by the Buyers assignee.
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22