General Terms and Conditions for the Supply of Repair Services
1.1. THESE WORK ORDER TERMS AND CONDITIONS (the “Terms”, the Component Repair Estimate and Work Order and the Terms together referred to herein as the “Agreement”) are by and between the person or entity listed as Owner/Operator under this Agreement (hereinafter, the “Customer”) and Short Brothers plc a corporation having its head office and principal place of business at Airport Road, Belfast BT3 9DZ, Northern Ireland, or its affiliates, as applicable (hereinafter collectively referred to as “Shorts”).
1.2. This Agreement explains our duties to you as the Customer and your duties to us.
1.3. This Agreement shall exclusively apply to all Repair Services supplied, unless Shorts expressly waives the applicability in written form, and only as far as Shorts and the Customer do not have an individual written repair services agreement signed by the duly authorized representatives of both parties in place.
1.4. The Customer acknowledges to have read and understood these terms and conditions prior to the placement of any order.
2.1. In this Agreement the following terms shall have the following meanings unless there is something inconsistent in the subject matter or context in which the term appears:
(a) “Component” means any component on which the Customer requires Shorts to perform Repair Services pursuant to this Agreement.
(b) “Force Majeure” means any cause or circumstance whatsoever beyond Shorts’ control including acts of God, explosion, flood, lightening, earthquake, weather conditions, fire, epidemic or accident; war, hostilities (whether declared or not), invasion, act of foreign enemies; rebellion, revolution, insurrection, terrorist act or civil war; riot, civil commotion or disorder; strikes, lock-outs or other industrial actions or trade disputes of whatever nature; failure of carriers, subcontractors or suppliers; any legislation, act, order, directive, regulation or sanction of any government or government body.
(c) “party” means either Customer or Shorts and “parties” means both of them.
(d) “Repaired Component” means a Component which has been repaired by Shorts in accordance with this Agreement.
(e) “Repair Services” means one or a combination of the following actions: modification, test, inspection, replacement, repair and/or overhaul of Component, to be provided by Shorts in accordance with this Agreement.
(f) “Subcontractor” means any person, legal or natural, other than employees of Shorts, engaged by Shorts to support Shorts in the performance of its obligations under the Agreement.
2.2. The division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
2.3. Reference to any statute or statutory provision, code of practice or regulation shall include any statute or statutory provision, code of practice or regulation which amends or replaces it or has amended or replaced it and shall include any subordinate legislation made under a relevant statute.
2.4. In this Agreement the singular shall include the plural and vice versa, words denoting any gender include all genders and words importing persons include natural persons, partnerships, unincorporated associations, trusts, trade unions, incorporated bodies, statutory bodies, local government bodies and public authorities and any other entity capable of legal personality.
2.5. The term “include”, “includes”, “including” and “included” means “including without limiting the generality of the foregoing.”
3.1. The Customer, when sending to Shorts the Component for Repair Services, agrees to pay all costs of investigation and costs of preparing an estimate / proposal sustained by Shorts.
3.2. Prices indicated in Shorts’ estimate / proposal shall remain valid for thirty (30) days.
3.3. When performing the Repair Services, Shorts may have to invoice additional charges to Customer. In such a case, Shorts shall send to Customer a new estimate that Customer shall accept before any redelivery of the Component may occur.
4.1. Title to all parts, materials and /or other goods supplied by Shorts under this Agreement shall not pass to Customer or any other person or entity until such time as full payment under this Agreement is received by Shorts.
4.2. Shorts shall retain title to any engineering, data, drawings, Supplemental Type Certificates (STCs), developed by or for Shorts related to the completion of the work hereunder.
5.1. All payments shall be made prior to delivery of the Repaired Component to Customer, save and except where Shorts and Customer have previously agreed, in writing, to credit terms for payment and/or scheduled advance payments.
5.2. Payment shall be received in immediately available funds deposited in Shorts’ account before Shorts can consider that payment to have been made.
5.3. At the time of payment, Customer shall identify the invoice number to which such payment relates.
5.4. Customer shall make all payments due under the Agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Customer has a valid court order requiring an amount equal to such deduction to be paid by Shorts to Customer.
5.5. Interest will be charged on all overdue amounts from the due date for payment at the annual rate of 8% above the Bank of England base lending rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment.
6.1. Should the Customer fail to make payments in accordance with Article 5 or any other agreement, then Shorts shall have the right, at its discretion, to:
(a) where there are credit terms, alter the payment terms of this Agreement or any other agreement by notifying the Customer, including but not limited to being paid entirely in cash (C.O.D.);
(b) reserve its right to suspend the Repair Services or terminate the Agreement or any other agreement after notifying the Customer;
(c) exercise any recourses or remedies available to it at law against the Customer including without limitation the right to set-off against the Customer for any payments due and owed to the Customer under any agreements that Shorts or its affiliates has with the Customer; and
(d) be compensated for any claim, cost, expense (including attorney’s fees), damages and losses incurred by Shorts in seeking recovery of any amount as a result of the failure by the Customer to pay Shorts including without limitation repossession fees, storage fees, or other costs as per the terms of the Agreement.
7.1. Prices are exclusive of all sales or similar taxes levied on the provision of Repair Services, including without limitation, value added taxes or other local sales based taxes.
7.2. All amounts paid by Customer to Shorts shall be paid before deduction, if any, of any applicable taxes, duties, levies, withholdings or other similar governmental charges to the extent applicable in respect of such amounts. In the event that any deduction or tax withholding is required in respect of any amount payable by Customer to Shorts, Customer will pay such an increased amount as will ensure that, after the required withholding is applied, Shorts still receives the amount as set out in the invoice.
8.1. Customer will be responsible for packing each Component in a suitable and re-usable crate. Packaging must comply with international agreements and applicable EU, UK and Northern Ireland legislation covering substances used in packaging including ‘Packaging Essential Requirements Regulations’, ‘ISPM 15 Wooden Packaging Requirements’ and any subsequent or new legislation that may be introduced before or during the Agreement term. Customer will notify Shorts in writing of Component being sent for evaluation and repair and will assume all responsibility (including cost and risk) for transport, unless otherwise agreed in writing.
8.2. Shorts will be responsible for packing the Repaired Component in a suitable and re-usable crate and inform Customer that the Component is repaired and ready for collection. Packaging must comply with international agreements and applicable EU, UK and Northern Ireland legislation covering substances used in packaging including ‘Packaging Essential Requirements Regulations’, ‘ISPM 15 Wooden Packaging Requirements’ and any subsequent or new legislation that may be introduced before or during the Agreement term. Customer will assume all responsibility (including cost and risk) for transport to Customer’s desired location, unless otherwise agreed in writing.
8.3. If Customer collects the Repaired Component from Shorts, the delivery will be made Ex Works (EXW, Incoterms 2000). The risk of damage or accidental destruction will be transferred to the Customer at the point in time at which it is notified by Shorts that the Repaired Component is ready for pickup.
8.4. If Customer does not take delivery of the Repaired Component within one week after being notified it is ready for collection, Customer shall compensate Shorts for any expenses it incurs in connection with the storage of the Repaired Component.
9.1. Shorts shall endeavour to redeliver the Component in accordance with the turn around time set out in Shorts’ estimate / proposal but these turn around times are to be treated as estimation only and without obligation, unless such periods and dates have been expressly specified by Shorts in writing as binding.
10.1. The Customer acknowledges that all or part of the Repair Services may have been or may be performed by other maintenance, repair and overhaul companies and consents to such subcontracting provided that it shall be performed in accordance with this Agreement.
11.1. Shorts will maintain, at its own cost and expense, during the term of this Agreement commercial general liability insurance, including aircraft products and completed operations liability insurance, for bodily injury and property damage with limits not less than the industry standard.
11.2. Customer shall maintain, at its own cost and expense, during the term of this Agreement, with reputable insurers, property all-risks insurance covering damage to all property for the full replacement value thereof which is in the possession or under effective care, custody and control of Customer or Customer’s suppliers.
11.3. Upon Shorts’ request, Customer shall furnish Shorts with current certificate of insurance in a form acceptable to Shorts evidencing that the insurance coverage required to be maintained by Customer in respect to Customer’s obligations under this Agreement or any related purchase order are in full force and effect. The certificate shall provide that the policies are not to be cancelled, benefits are not to be reduced or altered without a thirty (30) calendar day prior written notice delivered to Shorts, return receipt requested. Delay or failure to obtain such certificates of insurance shall not constitute a waiver of the requirement for them hereunder.
11.4. Customer shall give prompt written notice to Shorts of the occurrence of any damage or loss to Shorts property.
12.1. Shorts warrants that the Repaired Component shall be free from defects in material and workmanship for a period of twelve (12) months from the date of delivery of the Repaired Component to Customer, except where Shorts have agreed to provide a different warranty in a written quotation (the “Warranty Period”).
12.2. In the event a Repaired Component does not perform in accordance with the warranty set out in this Agreement, Shorts shall repair or replace, at Shorts’ sole discretion, the Repaired Component at no charge to Customer and provide reimbursement to Customer for any shipping expenses related thereto. Shorts’ warrants such repair or replacement for the remainder of the Warranty Period. Repair or replacement of the Repaired Component shall be Customer’s sole remedy for breach of Shorts’ warranty under Article 12.1.
12.3. Required scheduled maintenance or overhaul due to normal wear and tear do not constitute a defect or breach of Shorts’ warranty set out in Article 12.1. Shorts is not obligated to repair or replace a Repaired Component or part thereof if:
(a) the Repaired Component has not been maintained in accordance with the relevant maintenance documentation;
(b) the Repaired Component has been repaired, altered, removed, installed or modified by Customer or any third party contrary to Shorts’ written instructions;
(c) the Repaired Component has been subject to accident, misuse, abuse, vandalism, neglect or improper use or storage; or
(d) Customer does not submit demonstrated reasonable proof that the defect is due to a matter covered within the warranties set out in Article 12.1 above within ninety (90) days after the defect becomes apparent.
12.4. Customer shall be responsible for proper packaging and insuring a Repaired Component shipped to Shorts for warranty investigation, including all shipping charges, customs duties, taxes, tariffs, and other related charges of Repaired Component between Customer and Shorts. Customer bears all risk of loss of or damage to until Repaired Component is received at Shorts’ facility.
12.5. Shorts shall have the option to test any Repaired Component received for warranty work for evidence of defect. If any such Repaired Component is found not to be defective or that the defect is not due to a warranted condition hereunder, Customer shall be responsible for and agrees to pay for any test performed, including bench testing and recertification.
12.6. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, SHORTS DISCLAIMS ANY FURTHER CONDITIONS, REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING THE CONDITIONS, REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR PURPOSE, TITLE, PERFORMANCE AND THOSE ARISING FROM STATUTE, USAGE, OR CUSTOMER, TO THE EXTENT PERMITTED BY LAW. THE WARRANTIES AND REMEDIES CONTAINED IN THIS ARTICLE 12 ARE IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES CUSTOMER MAY HAVE AGAINST SHORTS CONCERNING THE SERVICES SUBJECT TO THIS AGREEMENT.
12.7. SHORTS HAS NOT AUTHORISED ANY THIRD PARTY TO MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, GUARANTEES, COVENANTS, OR AGREEMENTS, ORAL OR WRITTEN ON SHORTS’ BEHALF, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT NO SUCH THIRD PARTY IS THE AGENT OF SHORTS AND THAT SHORTS SHALL NOT BE BOUND BY THE SAME.
13.1. Approval of the Component Repair Estimate and Work Order assumes that the Customer accepts that all previous noted repairs recorded on the Detailed Inspection Survey have been carried out in accordance with approved data.
14.1. Customer shall provide Shorts with access (whether by delegation or otherwise) to all maintenance and repair data, including the operator’s customised publications and data provided by the airframer, required to carry out the Repair Services under this Agreement.
15.1. Shorts’ Repair Services are based on Original Equipment Manufacturer (OEM) repair manuals, but include where available and appropriate the use of FAA DER repairs or the equivalent to EASA Part-21. Should Customer not accept the use of such repairs, Customer must stipulate such disapproval in writing prior to Repair Services commencing and Shorts shall be entitled to either refuse the order or make an estimate for the required repair without using FAA DER repairs or the equivalent to EASA Part-21.
15.2. Shorts shall be entitled to use EPA and/or PMA material. Should Customer not accept the use of such EPA and/or PMA material, Customer must stipulate such disapproval in writing prior to Repair Services commencing and Shorts shall be entitled to either refuse the order or make an estimate for the required repair without using EPA and/or PMA material.
16.1. Shorts’ sole obligation and liability, and Customer’s sole remedy for Shorts’ negligence, breach of warranty, breach of contract or for any other liability in any way connected with or arising out of this Agreement shall be as follows: in all situations involving performance or non-performance of a Repaired Component, or any part thereof, Customer’s sole remedy shall be, at Shorts’ option, the repair or replacement of the Repaired Component. For any other claim in any other way related to this Agreement, Customer shall be entitled to recover actual and direct damages only; provided that Shorts’ liability for damages for any cause whatsoever, and regardless of the form of action, whether in contract or tort (including negligence), shall be limited to the value of the Repair Services provided under this Agreement.
16.2. IN NO EVENT SHALL SHORTS BE LIABLE TO CUSTOMER FOR LOSS OF PROFITS, LOST BUSINESS REVENUE, BUSINESS INTERRUPTION, FAILURE TO REALISE EXPECTED SAVINGS OR EXPECTED PROFITS, LOSS OF GOODWILL OR ANY OTHER ECONOMIC LOSS OF ANY KIND OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES OR LOSSES INCURRED OR SUFFERED. THE FOREGOING EXCLUSION OF LIABILITY DOES NOT APPLY TO THIRD PARTY CLAIMS FOR DEATH OR INJURY OR THIRD PARTY PROPERTY DAMAGE ARISING OUT OF AN AIRCRAFT ACCIDENT CAUSED BY A PRODUCT DEFECT IN THE ITEMS SUPPLIED BY SHORTS HEREUNDER.
16.3. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE THE LIABILITY OF SHORTS FOR MATTERS WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW. IN THE EVENT SUCH A LAW APPLIES, THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE AMENDED INSOFAR, AND ONLY INSOFAR, AS REQUIRED BY SAID LAWS.
16.4 Customer acknowledges that the prices Shorts has agreed to charge Customer for the goods and services covered by this Agreement have been agreed upon by Shorts in reliance upon Customer’s agreements limiting Shorts’ liability set forth above and below, and that without such agreements, Shorts would be unwilling to provide such products and services for the price and other terms set forth herein.
17.1. Customer shall indemnify and hold harmless Shorts and their directors, officers, employees, agents and subcontractors from and against any and all claims, demands, proceedings, losses, liabilities, costs and expenses (“Losses”) in respect of:
(a) injury to or death of any person including but not limited to the Customer’s respective employees, officers, directors, agents and sub-contractors;
(b) damage to, or loss of, any property (including but not limited to any Component repaired under this Agreement); and
(c) delay, injury or death of any person or animal carried or to be carried on board an aircraft operated by Customer,
in each case caused by, arising out of or connected with the use of a Repaired Component under this Agreement unless any such Losses result from the acts or omissions of Shorts which are either done deliberately with intent to cause loss or damage or recklessly with actual subjective knowledge that such loss or damage would result (provided that in the case of an act or omission of an employee or agent of Shorts, it is also provided that he was acting within the scope of his employment).
18.1. Shorts will not be held liable for failure to perform its obligations hereunder or responsible for any delay due to an event of Force Majeure. If the time required for the performance of any obligation under this Agreement is delayed due to an event of Force Majeure, at Shorts’ option, the period of time required to carry out such obligation shall be extended for a period equal to the period of time for which the event of Force Majeure delayed performance of the Shorts’ obligations.
19.1. For Fault. Shorts may, by written notice to Customer, immediately terminate this Agreement in whole or in part if Customer shall fail to comply with any of its obligations under this Agreement, including but not limited to, timely payment of all invoices of Shorts.
19.2. Insolvency. This Agreement shall immediately terminate in the event any proceedings are instituted by or against Customer under bankruptcy or debtors’ relief laws, including without limitation, the appointment of a receiver or trustee or an assignment for the benefit of creditors of Customer, or the institution of any similar proceedings.
19.3. Convenience. Shorts may, at any time, provide Customer written notice of termination of all or part of this Agreement for convenience, in which case Shorts shall, at its own expense, return the goods subject to such termination to Customer, and Customer shall pay for Shorts’ actual performance of the work under this Agreement to the effective date of termination, less actual, direct damages incurred by Customer because of such termination for convenience.
19.4. Effect of Termination. On termination of the Agreement for any reason:
(a) the Customer shall immediately pay to Shorts all of Shorts’ outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, Shorts may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
20.1. This Agreement, and all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transactions contemplated hereby, shall be governed by, construed and enforced in accordance with laws of Northern Ireland without reference to conflict of laws principles. The parties agree that this Agreement and any purchase order issued pursuant to this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
20.2. The courts of Northern Ireland shall have exclusive jurisdiction to hear and determine all claims, disputes, actions or suits which may arise hereunder.
20.3. Any cause of action by Customer against Shorts, its employees, officers, directors, or agents must be commenced within one (1) year from the date the cause of action accrued.
21.1. It is the policy of Shorts to comply with the laws and regulations of the U.S., U.K., E.U., Canada and other countries where it conducts its business that govern exports of products, services and/or technology. Under no circumstances will sales, other transfers or retransfers of products, services and/or technology be made contrary to applicable export control, embargoes or economic sanctions laws and regulations. Customer shall be responsible for securing and complying with any U.S., U.K., E.U., Canadian or other governmental export or import licenses or authorisation, as may be required as a result of any purchase or supply of goods or services from Shorts. However, to the extent Shorts is required to obtain an export or import license or authorisation, Customer shall assist Shorts in obtaining any such export or import licenses and authorisations as may be required. In the event of a retransfer or reexport of components by the Customer to Shorts, the Customer shall be responsible for securing any necessary export licences or other governmental authorisation from the country of export prior to the retransfer or reexport occurring. Shorts may refuse any order if the sale, supply or delivery of any goods or services may cause, in Shorts’ sole discretion, a violation of any U.S., U.K., E.U., Canadian or other governmental export or import laws or regulations.
22.1. Failure by Shorts to assert all or any of its rights upon any breach of this Agreement shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service.
22.2. No written waiver of any right shall extend to nor affect any other right Shorts may possess, nor shall such written waiver extend to any subsequent similar or dissimilar breach.
23.1. Customer shall not assign any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of Shorts, which Shorts may grant or withhold in its sole and absolute discretion. Any attempted assignment in violation of this Agreement shall be null and void and of no legal effect.
23.2. This Agreement will be enure to the benefit of and be binding upon the successors and permitted assigns of the parties.
24.1. Any consent, notice, demand or other communication given in connection with this Agreement will be in writing and must be given by personal delivery, registered or certified mail, courier or by facsimile addressed as follows:
In the case of Shorts,
Short Brothers plc, Airport Road, Belfast, BT3 9DZ, Northern Ireland
Attention: Customer Services Contracts Manager
Fax: +44 28 90 733 038
WITH A COPY TO
Attention: Legal Services
Fax: + 44 28 9046 2858
In the case of Customer,
Addressed to the Customer at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as the Customer may have specified in writing in accordance with this article.
25.1. Each party undertakes that it shall not at any time during this Agreement and for a period of five (5) years after termination disclose to any person any information disclosed to it by the other party including, but not limited to the existence and terms of this Agreement subject to where the disclosure thereof was made under the following circumstances and to the extent:
(a) required by the law of any relevant jurisdiction;
(b) disclosed on a strictly confidential basis to the professional advisers, auditors and bankers of that party;
(c) disclosed on a strictly confidential basis to directors and employees of that party;
(d) the disclosing party has given its prior written approval to the disclosure, such approval not to be unreasonably withheld or delayed; or
(e) required to enable that party to enforce its rights under this Agreement.
25.2. This Agreement may not give rise to direct or indirect publicity unless previously authorised in writing.
26.1. Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, each party hereby waives any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
27.1. In the event of any inconsistency among this Agreement and any documents incorporated by reference herein, the inconsistency shall be resolved by giving precedence in the following order: (i) this Agreement, (ii) the terms of the quotation attached hereto, if any; (iii) any drawings; (iv) any specifications; (v) any other documents incorporated by reference.
28.1. This Agreement supersedes all prior oral or written representations or communications between the parties with respect to the subject matter hereof and, together with any attachment and appendices hereto and any quote issued hereunder, constitutes the entire understanding of the parties, regarding the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as set out in this Agreement.
28.2. This Agreement may be changed, modified or amended from time to time only by express written agreement of the parties executed by their authorised representatives.