EXHIBIT 4.9
*** INDICATES CONFIDENTIAL MATERIAL OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
SEPARATELY WITH A REQUEST FOR CONFIDENTIAL TREATMENT.
[LOGO] [LOGO]
AIRBUS
AND
CHINA EASTERN AIRLINES
CORPORATION LTD
AND
CHINA EASTERN AVIATION IMPORT
AND EXPORT CORPORATION
[PICTURE]
1
A330
PURCHASE AGREEMENT
BETWEEN
AIRBUS S.A.S.
AS SELLER
AND
CHINA EASTERN AIRLINES CORPORATION, LIMITED
AS AIRLINE
AND
CHINA EASTERN AVIATION IMPORT AND EXPORT CORPORATION
AS TRADING CORPORATION
BOTH AIRLINE AND TRADING CORPORATION AS BUYER
(Agreement No. 04GTBAP019 FR)
Foreword - Page 1/4
CONTENTS
CLAUSES TITLES
-------- ------
0 DEFINITIONS AND INTERPRETATION
1 SALE AND PURCHASE
2 SPECIFICATION
3 PRICES
4 PRICE REVISION
5 PAYMENTS
6 MANUFACTURE PROCEDURE - INSPECTION
7 CERTIFICATION
8 BUYER'S TECHNICAL ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 NON-EXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT AND COPYRIGHT INDEMNITY
14 TECHNICAL DATA AND SOFTWARE SERVICES
15 SELLER'S REPRESENTATIVES
16 TRAINING AND TRAINING AIDS
17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT
19 INDEMNIFICATION AND INSURANCE
20 TERMINATION
21 ASSIGNMENTS AND TRANSFERS
22 MISCELLANEOUS PROVISIONS
Foreword - Page 2/4
CONTENTS
EXHIBITS TITLES
--------- ------
Exhibit A SPECIFICATION
Exhibit B FORM OF SPECIFICATION CHANGE NOTICE
Exhibit C PART 1 AIRFRAME PRICE REVISION FORMULA
PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA
Exhibit D FORM OF CERTIFICATE OF ACCEPTANCE
Exhibit E FORM OF BILL OF SALE
Exhibit F SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE
Exhibit G TECHNICAL DATA INDEX
Exhibit H MATERIEL SUPPLY AND SERVICES
Foreword - Page 3/4
A330 PURCHASE AGREEMENT
This A330 Purchase Agreement (the "AGREEMENT") is made as of OCTOBER 9TH, 2004
BETWEEN:
AIRBUS S.A.S., a societe par actions simplifiee, legal successor of Airbus
S.N.C., formerly known as Airbus G.I.E created and existing under French law
having its registered office at 0 Xxxx-Xxxxx Xxxxxxx Xxxxxxxx, 00000
Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce
under number RCS Toulouse 383 474 814 (the "SELLER"),
and
CHINA EASTERN AIRLINES CORPORATION, LIMITED, having its principal office at:
Pudong International Airport
SHANGHAI 201202
PEOPLE'S REPUBLIC OF CHINA
(hereinafter referred to as the "Airline") of the other part
AND
CHINA EASTERN AVIATION IMPORT AND EXPORT CORPORATION, having its principal
office at:
Hongqiao Airport
SHANGHAI 200335
PEOPLE'S REPUBLIC OF CHINA
(hereinafter referred to as the "Trading Corporation", the Airline and the
Trading Corporation hereinafter referred to jointly and severally as 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:
Foreword - Page 4/4
0 DEFINITIONS AND INTERPRETATION
0.1 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 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.
AIRCRAFT means an Airbus A330-300 aircraft including
the Airframe, the Propulsion Systems, and any
part, component, furnishing or equipment
installed on the Aircraft on Delivery under
the terms and conditions of this Agreement.
AIRCRAFT TRAINING SERVICES 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.
AIRFRAME means the Aircraft excluding the Propulsion
Systems.
AIRFRAME BASIC PRICE has the meaning set out in Clause 3.1.
AIRFRAME PRICE REVISION
FORMULA is set out in Part 1 of Exhibit C.
AVIATION AUTHORITY 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.
BALANCE OF FINAL PRICE has the meaning set out in Clause 5.4.1.
BASIC PRICE means the sum of the Airframe Basic Price and
the Propulsion Systems Basic Price.
BILL OF SALE has the meaning set out in Clause 9.2.2.
BUYER FURNISHED
EQUIPMENT has the meaning set out in Clause 18.1.1.
CERTIFICATE OF ACCEPTANCE has the meaning set out in Clause 8.3.
DEFAULT RATE means the rate of Default Interests as defined
in Clause 5.7.
DELIVERY means the transfer of title to the Aircraft
from the Seller to the Buyer in accordance
with Clause 9.
DELIVERY DATE means the date on which Delivery shall occur.
DELIVERY LOCATION means the facilities of the Seller at the
location of final assembly of the Aircraft.
EXCUSABLE DELAY has the meaning set out in Clause 10.1.
Clause 0 - Page 1/3
EXPORT AIRWORTHINESS
CERTIFICATE means an export certificate of airworthiness
issued by the Aviation Authority of the
Delivery Location.
FINAL PRICE has the meaning set out in Clause 3.3
GROUND TRAINING SERVICES 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.
MANUFACTURE FACILITIES means the various manufacture facilities of
the Seller, its Affiliates or any
sub-contractor, where the Airframe or its
parts are manufactured or assembled.
MATERIEL has the meaning set out in Clause 1.1 of
Exhibit H.
NON-EXCUSABLE DELAY has the meaning set out in Clause 11.1.
PREDELIVERY PAYMENT means the payment(s) determined in accordance
with Clause 5.3.
PROPULSION SYSTEMS has the meaning set out in Clause 2.2.
PROPULSION SYSTEMS BASIC
PRICE means the price of a set of Propulsion Systems
as set out in Clause 3.2.
PROPULSION SYSTEMS
REFERENCE PRICE means the reference price of a set of
Propulsion Systems as set out in Part 2 of
Exhibit C.
PROPULSION SYSTEMS
MANUFACTURER means the manufacturer of the Propulsion
Systems as set out in Clause 2.2.
PROPULSION SYSTEMS PRICE
REVISION FORMULA is set out in Part 2 of Exhibit C.
READY FOR DELIVERY means the time when (i) the Technical
Acceptance Process has been successfully
completed and (ii)the Export Airworthiness
Certificate has been issued.
SCHEDULED DELIVERY MONTH has the meaning set out in Clause 9.1.
SELLER'S REPRESENTATIVES means the representatives of the Seller
referred to in Clause 15.2.
SELLER REPRESENTATIVES
SERVICES means the services provided by the Seller to
the Buyer and from the Buyer to the Seller
pursuant to Clause 15.
SELLER SERVICE LIFE POLICY has the meaning set out in Clause 12.2.
Clause 0 - Page 2/3
SPARE PARTS means the items of equipment and materiel
which may be provided pursuant to Exhibit H.
SPECIFICATION CHANGE
NOTICE OR SCN means an agreement in writing between the
parties to amend the Specification pursuant to
Clause 2.
SPECIFICATION means either (a) the Standard Specification if
no SCNs are applicable or (b) if SCNs are
issued, the Standard Specification as amended
by all applicable SCNs.
STANDARD SPECIFICATION means the A330-300 standard specification
document number G.000.03000 Issue 7 Revision 1
dated December 15, 2003 a copy of which has
been annexed hereto as Exhibit A.
SUPPLIER has the meaning set out in Clause 12.3.1.1.
SUPPLIER PART has the meaning set out in Clause 12.3.1.2.
SUPPLIER PRODUCT
SUPPORT AGREEMENT has the meaning set out in Clause 12.3.1.3.
TECHNICAL DATA has the meaning set out in Clause 14.1.
TOTAL LOSS has the meaning set out in Clause 10.4.
TYPE CERTIFICATE has the meaning set out in Clause 7.1.
WARRANTED PART has the meaning set out in Clause 12.1.1.
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, Appendices and Exhibits are to be construed
as references to the Clauses of, and Appendices, 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.
Clause 0 - Page 3/3
1 SALE AND PURCHASE
The Seller shall sell and deliver and the Buyer shall buy and take
delivery of twenty (20) Aircraft together with Spare Parts on the Delivery
Date at the Delivery Location upon the terms and conditions contained in
this Agreement.
Clause 1 - Page 1/1
2 SPECIFICATION
2.1 AIRFRAME SPECIFICATION
2.1.1 SPECIFICATION
The Airframe shall be manufactured in accordance with the Standard
Specification, as modified or varied prior to the date of this Agreement
by the Specification Change Notices listed in Appendix 1 to Exhibit A.
AIRCRAFT TYPE SPECIFICATION DOCUMENT MTOW MLW MZFW
------------- ----------------------------- ---- ----- -----
A330-300 G.000.03000, Issue 7 Revision 233 t 187 t 175 t
1 dated December 15, 2003
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 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.
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.
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
The Airframe shall be equipped with a set of two (2) engines, including
nacelles and thrust reversers (the "PROPULSION SYSTEMS"). Upon signature
of this Agreement, the Buyer shall select between GENERAL ELECTRIC (GE),
XXXXX & XXXXXXX (PW) and ROLLS ROYCE (RR) one of the following Engines
types:
Clause 2 - Page 1/2
AIRCRAFT TYPE GE PW RR
------------- ------------ ------------ -----------------
A330-300 CF6-80E1A3 PW4168A RB211-Trent 772B
(72,000 lbs) (68,000 lbs) (71,000 lbs)
2.3 CUSTOMISATION MILESTONES CHART
Within a reasonable period following signature of the Agreement, the
Seller shall provide the Buyer with a 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.
Clause 2 - Page 2/2
3 PRICES
3.1 AIRFRAME BASIC PRICE
3.1.1 The Airframe Basic Price is the sum of:
(i) ***
(ii) the budget of the basic prices of all SCNs, which is:
USD ***
(US Dollars-***)
3.1.2 The Airframe Basic Price has been established in accordance with the
average economic conditions prevailing in December 2002, January 2003,
February 2003 and corresponding to a theoretical delivery in January 2004
(the "Base Period").
3.2 PROPULSION SYSTEMS BASIC PRICE
3.2.1 GENERAL ELECTRIC Propulsion Systems
The Basic Price of a set of two (2) GENERAL ELECTRIC CF6-80E1A3 Propulsion
Systems including standard equipment, nacelles and thrust reversers is:
USD ***
(US ***
at economic conditions prevailing for a theoretical delivery in January
2004.
Such Basic Price has been computed from the Reference Price of: USD
27,595,134 at Reference Composite Price Index of 149.48 (delivery
conditions January 2003) and shall be subject to revision up to the
Aircraft delivery date in accordance with the GENERAL ELECTRIC Price
Revision Formula set forth in this Agreement.
3.2.2 XXXXX & XXXXXXX Propulsion Systems
The Basic Price for a set of two (2) XXXXX & XXXXXXX PW4168A Propulsion
Systems including standard equipment, nacelles and thrust reversers is:
USD ***
(US ***
at economic conditions prevailing for a theoretical delivery in January
2004.
Clause 3 - Page 1/2
Such Basic Price has been computed from the Reference Price of: USD ***
at economic conditions prevailing for a delivery in June 2003 and shall be
subject to revision up to the Aircraft delivery date in accordance with
the XXXXX & XXXXXXX Xxxxx Revision Formula set forth in this Agreement.
3.2.3 ROLLS ROYCE Propulsion Systems
The Basic Price for a set of two (2) ROLLS ROYCE RB211-TRENT 772B
Propulsion Systems including standard equipment, nacelles and thrust
reversers is:
***
at economic conditions prevailing for a theoretical delivery in January
2004.
The Reference Price is: USD *** at economic conditions prevailing for a
delivery in January 2001 and shall be subject to revision up to the
Aircraft delivery date in accordance with the ROLLS XXXXX Xxxxx Revision
Formula set forth in this Agreement.
3.3 FINAL PRICE
The Final Price of each 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 other amount due by the Buyer to the Seller pursuant to this
Agreement and/or any other written agreement between the Buyer and
the Seller with respect to the Aircraft.
Clause 3 - Page 2/2
4. PRICE REVISION
4.1 REVISION OF AIRFRAME BASIC PRICE
The Airframe Basic Price is subject to revision in accordance with the
Airframe Price Revision Formula up to and including the Delivery Date as
set forth in Part 1 of Exhibit C
4.2 REVISION OF PROPULSION SYSTEMS REFERENCE PRICE
4.2.1.The Propulsion Systems Reference Price is subject to revision in
accordance with the 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.
Clause 4 - Page 1/1
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: 30002 04024 0000060252T 38
with:
CREDIT LYONNAIS
SWIFT: XXXXXXXXXXX
1 esp, Compans Xxxxxxxxxx
31 002 TOULOUSE
FRANCE
or to such other account as may be designated by the Seller.
5.2 COMMITMENT FEE
Intentionally deleted
5.3 PREDELIVERY PAYMENTS
5.3.1 The Buyer shall pay Predelivery Payments to the Seller calculated on the
predelivery payment reference price of each Aircraft, The predelivery
payment reference price is determined by the following formula:
***
Clause 5 - Page 1/5
5.3.2 ***
5.3.3 ***
5.3.4 ***
5.3.5 ***
Clause 5 - Page 2/5
5.4 ***
5.4.1 ***
5.4.2 ***
5.5 ***
5.6 ***
5.6.1 ***
5.6.2 ***
5.7 ***
Clause 5 - Page 3/5
5.8 ***
5.8.1 ***
5.8.2 ***
5.8.3 ***
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 refers)
acquire any proprietary, insurable or other interest whatsoever in any
Aircraft before Delivery of and payment for 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) owed by the Seller to the Buyer, regardless of the place of
payment or currency. The Seller is not entitled to set-off obligation
that is not owed by the Buyer to the Seller.
5.11 CROSS-COLLATERALISATION
5.11.1 The Buyer hereby agrees that, notwithstanding any provision to the
contrary in this Agreement, in the event that the Buyer should fail to
make any material payment owing under this Agreement or under any other
agreement between the Buyer and the Seller and/or any of their respective
Affiliates (the "Other Agreement"), the Seller may:
(i) withhold payment to the Buyer or its Affiliates of any sums that may
be due to or claimed by the Buyer or its Affiliates from the Seller
or its Affiliates pursuant to this Agreement or any Other Agreement,
including Predelivery Payments, unless or until the default under
this Agreement or the Other Agreement is cured or remedied; and
Clause 5 - Page 4/5
(ii) apply any amount of any Predelivery Payment it then holds under this
Agreement in respect of any of the Aircraft as well as any other
monies held pursuant to any Other Agreement (collectively the
"Relevant Amounts") in such order as the Seller deems appropriate in
satisfaction of any amounts due and unpaid by the Buyer or its
Affiliates and to compensate for any losses and/or damages the
Seller or its Affiliates may suffer as a result of the Buyer's or
its Affiliates' failure to make payments in a timely manner under
this Agreement or any Other Agreement, The Buyer acknowledges that
the application of any of the Relevant Amounts as aforesaid may
result in the Buyer or its Affiliates being in default (unless such
default is otherwise cured or remedied) in relation to the agreement
in respect of which such Relevant Amounts were originally granted or
required to be paid, as the case may be.
The rights granted to the Seller in the preceding paragraphs (i) and
(ii) are without prejudice and are in addition to and shall not be
deemed a waiver of any other rights and remedies the Seller or its
Affiliates may have at law or under this Agreement or any Other
Agreement, including the right of set-off.
5.11.2 In the event that the Seller applies any amount of any Predelivery
Payment it then holds under this Agreement in respect of any of the
Aircraft in satisfaction of the amount due and unpaid by the Buyer or its
Affiliates or to compensate for losses and/or damages to the Seller or
its Affiliates as a result of the Buyer's or its Affiliates' failure to
make payment in a timely manner under the Agreement or any Other
Agreement, then the Seller shall notify the Buyer to that effect. Within
three (3) working days of issuance of such notification, the Buyer shall
pay by wire transfer of funds immediately available to the Seller the
amount of the Predelivery Payment that has been applied by the Seller as
set forth above.
Failure of the Buyer to pay such amount in full, shall entitle the Seller
to (i) collect interest on such unpaid amount in accordance with Clause
5.7 hereof from the fourth (4th) working day following the Seller's
written request to the Buyer for such payment and (ii) treat such failure
as an additional termination event for which the Seller shall be entitled
to the remedies available under Clause 20.2 of the Agreement.
Clause 5 - Page 5/5
6 MANUFACTURE PROCEDURE - INSPECTION
6.1. MANUFACTURE PROCEDURE
The 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 (the "BUYER'S INSPECTOR(S)") shall be
entitled to inspect the manufacture of the Airframe and all materials and
parts obtained by the Seller for the manufacture of the 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 the Affiliates 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.
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, the Seller shall furnish without
additional charge suitable space and office equipment in or conveniently
located with respect to the Delivery Location for the use of a reasonable
number of Buyer's Inspector(s).
The Seller shall provide free local transportation by bus for a reasonable
number of Buyer's representatives, to and from hotel and the office.
Clause 6 - Page 1/1
7 CERTIFICATION
7.1 TYPE CERTIFICATION
The Aircraft has been type certificated under Joint Aviation Authorities
(JAA) 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 and its
acceptance by the Buyer's Aviation Authority ("CAAC"). (Reference for
validation of Type Certificate to regulation AP-21-01R1 of CAAC).
7.2 EXPORT AIRWORTHINESS CERTIFICATE
7.2.1 The Aircraft shall be delivered to the Buyer with an Export Airworthiness
Certificate.
7.2.2 If, any time before the date on which the Aircraft is Ready for Delivery,
any law or regulation is enacted, promulgated, becomes effective and/or an
interpretation of any law or regulation is issued which requires any
change to the Specification for the purposes of obtaining the Export
Airworthiness Certificate (a "CHANGE IN LAW"), the Seller shall make the
required variation or modification and the parties hereto shall sign a
Specification Change Notice which specifies the effects, if any, upon the
guaranteed performances, weights, interchangeability, time of Delivery,
price of the Aircraft and text of the Specification.
7.2.3 The Seller shall as far as practicable (but at its sole discretion and
without prejudice to Clause 7.3.1 (ii)) take into account the information
available to it concerning any proposed law, regulation or interpretation
which could become a Change in Law in order to minimise the costs of
changes to the Specification as a result of such proposed law, regulation
or interpretation becoming effective prior to the Aircraft being Ready for
Delivery.
7.3 COSTS OF SCNS FOR CERTIFICATION
7.3.1 The costs of implementing the variation or modification referred to in
Clause 7.2.2 above shall be
(i) for the account of the Seller if the Change in Law became effective
prior to the date of this Agreement;
(ii) shared equally between the Seller and the Buyer if the Change in Law
became effective after the date of this Agreement.
7.3.2. Notwithstanding the provisions of sub-Clauses 7.3.1 (i)and (ii), if the
Change in Law relates to the Propulsion Systems and in particular to
engine accessories, quick engine change units or thrust reversers, the
costs shall be borne in accordance with such arrangements as may be made
separately between the Buyer and the Propulsion Systems Manufacturer.
Clause 7 - Page 1/2
7.4 VALIDATION OF THE EXPORT AIRWORTHINESS CERTIFICATE
7.4.1 The Seller shall endeavour to obtain the validation of the Export
Airworthiness Certificate by the Buyer's Aviation Authority.
7.4.2 Where the Buyer's Aviation 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. The parties shall sign a Specification
Change Notice which specifies the effects, if any, upon the guaranteed
performances, weights, interchangeability, time of Delivery and price of
the Aircraft.
Clause 7 - Page 2/2
8 BUYER'S TECHNICAL ACCEPTANCE
8.1 TECHNICAL ACCEPTANCE PROCESS
8.1.1 Prior to Delivery the Aircraft shall undergo a technical acceptance
process, proposed by the Seller (the "Technical Acceptance
Process"). Completion of the Technical Acceptance Process shall
demonstrate the satisfactory functioning of the Aircraft and shall
be deemed to demonstrate compliance with the Specification. Should
it be established that the 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
Aircraft to such further Technical Acceptance Process as is
necessary to demonstrate the elimination of the non-compliance.
8.1.2 The Technical Acceptance Process shall:
(i) take place at the Delivery Location;
(ii) be carried out by the personnel of the Seller;
(iii) include a technical acceptance flight which shall not exceed a
period of three (3) hours (each time).
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 seven (7) business days after its
commencement;
(ii) may have a maximum of six (6) 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 purposely 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 Technical Acceptance Process as
satisfactory in all respects.
8.3 CERTIFICATE OF ACCEPTANCE
Upon successful completion of the Technical Acceptance Process, the
Buyer shall, on or before the Delivery Date, sign and deliver to the
Seller a certificate of acceptance in respect of the Aircraft in the
form of Exhibit D (the "CERTIFICATE OF ACCEPTANCE").
Clause 8 - Page 1/2
8.4 AIRCRAFT UTILISATION
The Seller shall, without payment or other liability, be entitled to
use the Aircraft prior to Delivery as may be necessary to obtain the
certificates required under Clause 7, and such use shall not prejudice
the Buyer's obligation to accept Delivery of the Aircraft hereunder.
Should the Seller wish to use the Aircraft of the Buyer before
delivery for other purposes than the ones described above, the Seller
has to obtain the Buyer's authorization and commercial compensation
may be requested by the Buyer.
Clause 8 - Page 2/2
9 DELIVERY
9.1 DELIVERY SCHEDULE
Aircraft No.1 ***
Aircraft No.2 ***
Aircraft No.3 ***
Aircraft No.4 ***
Aircraft No.5 ***
Aircraft No.6 ***
Aircraft No.7 ***
Aircraft No.8 ***
Aircraft No.9 ***
Aircraft No.10 ***
Aircraft No.11 ***
Aircraft No.12 ***
Aircraft No.13 ***
Aircraft No.14 ***
Aircraft No.15 ***
Aircraft No.16 ***
Aircraft No.17 ***
Aircraft No.18 ***
Aircraft No.19 ***
Aircraft No.20 ***
9.1.2 The Seller shall give the Buyer at least forty-five (45) days prior
written notice of the anticipated date on which the Aircraft shall be
Ready for Delivery. Thereafter the Seller shall notify the Buyer of
any change in such date necessitated by the conditions of manufacture
or flight.
9.2 DELIVERY
9.2.1 The Buyer shall send its representatives to the Delivery Location to
take Delivery of, and collect, the Aircraft within seven (7) days
after the date on which the Aircraft is Ready for Delivery and shall
pay the Balance of the Final Price on or before the Delivery Date.
9.2.2 The Seller shall deliver and transfer title to the Aircraft free and
clear of all encumbrances to the Buyer provided that the Balance of
the Final Price has been paid by the Buyer pursuant to Clause 5.4 and
that the Certificate of Acceptance has been signed and delivered to
the Seller pursuant to Clause 8.3. The Seller shall provide the Buyer
with a bill of sale in the form of Exhibit E (the "BILL OF SALE")
and/or such other documentation confirming transfer of title and
receipt of the Final Price as may reasonably be requested by the
Buyer. Title to, property in and risk of loss of or damage to the
Aircraft shall be transferred to the Buyer on Delivery.
9.2.3 Should the Buyer fail to
(i) deliver the signed Certificate of Acceptance to the Seller
within the delivery period as defined in Clause 9.2.1; or
Clause 9 - Page 1/2
(ii) pay the Balance of the Final Price for the Aircraft to the
Seller within the above defined period
then the Buyer shall be deemed to have rejected delivery of the
Aircraft without warrant when duly tendered to it hereunder. In
addition to Clause 5.7 and the Seller's other rights under this
Agreement, the Seller shall retain title to the Aircraft but the Buyer
shall thereafter bear all risk of loss of or damage to the Aircraft
and shall indemnify and hold the Seller harmless against any and all
costs (including but not limited to any parking, storage, and
insurance costs) and consequences resulting from such 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.
9.3.2 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 and oil required for all post-Delivery flights.
Clause 9 - Page 2/2
10 EXCUSABLE DELAY
10.1 The Buyer acknowledges that the Aircraft (is) (are) to be manufactured
by Seller in performance of this Agreement and that the Scheduled
Delivery Month(s) (is) (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, equipment or parts. Any delay or interruption
resulting from any of the foregoing causes 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 notify to the
Buyer the revised Scheduled Delivery Month.
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 twelve (12) months after the last day
of the Scheduled Delivery Month then either party may terminate this
Agreement with respect to the Aircraft so affected by giving written
notice to the other party within thirty (30) days after the expiry of
such twelve (12) month period provided that 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.
10.3.2 If the Seller concludes that the Delivery of any Aircraft shall be
delayed for more than twelve (12) months after the last day of the
Scheduled Delivery Month 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 thirty (30) days after receipt by the Buyer
of the notice of anticipated delay.
10.3.3 If this Agreement shall not have been terminated with respect to the
delayed Aircraft during the thirty (30) 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.
Clause 10 - Page 1/2
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"), the Seller shall notify the Buyer to this effect 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
information becomes available to the Seller) the earliest date
consistent with the Seller's 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 Seller's notice to accommodate the delivery of the
replacement aircraft; provided, however, that in the event the
specified extension of the Scheduled Delivery Month to a month is
exceeding twelve (12) 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 Seller's notice that it desires the Seller
to provide a replacement aircraft during the month quoted in
the Seller's 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.
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.
Clause 10 - Page 2/2
11 NON-EXCUSABLE DELAY
11.1 LIQUIDATED DAMAGES
***
11.2 ***
11.3 ***
11.4 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 a
liquidated damages and has 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.
Clause 11 - Page 1/1
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, 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 Seller's 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 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 Seller's 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).
Clause 12 - 1/14
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 BUYER'S REMEDY AND SELLER'S OBLIGATION
12.1.4.1 The Buyer's remedy and the Seller's 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 Seller's 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 Seller's 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 Seller's 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.
12.14.3 In addition to the remedies set forth in Clauses 12.1.4.1 and
12.1.4.2, the Seller shall reimburse the direct labor costs spent by
the Buyer in 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 Seller's 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 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
Clause 12 - 2/14
defined in Clause 12.1.7, and
(v) the manhours used to determine such reimbursement shall not
exceed the Seller's estimate of the manhours required by the
Buyer for such inspections.
12.1.5 WARRANTY CLAIM REQUIREMENTS
Each Buyer's 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 proof 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 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 Seller's 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 Seller.
(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 Buyer's facilities or at another place acceptable to the
Seller. Return of any Aircraft by the Buyer to the Seller will
be at the Buyer's expense and return of such Aircraft to the
Buyer's facilities shall be at the Seller's expense.
Clause 12 - 3/14
(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
Seller's Service Bulletins at the Buyer's 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
Seller at the labor rate defined in Clause 12.1.7.
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
Buyer's 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 ("Manufacturer's 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:
AIRBUS
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
Rond-Point Xxxxxxx Xxxxxxxx
B.P. 33
F-31707 BLAGNAC CEDEX
Clause 12 - 4/14
FRANCE
(vi) REPLACEMENTS
Components, equipment, accessories or parts, which the Seller
has replaced pursuant to this Clause, shall become the Seller's
property. The replacement components, equipment, accessories or
parts provided by the Seller to the Buyer pursuant to this
Clause shall become the Buyer's property.
(vii) SELLER'S REJECTION
The Seller shall provide reasonable written substantiation in
case of rejection of a Warranty Claim. In such event the Buyer
shall refund to the Seller reasonable inspection and test
charges incurred in connection therewith.
(viii)SELLER'S 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.
12.1.7 INHOUSE WARRANTY
(i) SELLER'S 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.
(ii) CONDITIONS FOR SELLER'S AUTHORIZATION
The Buyer shall be entitled to repair such Warranted Parts only:
- if the Buyer notifies the Seller's 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 five thousand (US$5,000).
The Buyer's 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 Seller's written instructions set
forth in the applicable Seller's 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.
Clause 12 - 5/14
(iii) SELLER'S 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) INHOUSE WARRANTY CLAIM SUBSTANTIATION
Claims for Inhouse 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),
- parts description,
- quantity of parts,
- unit price of parts,
- related Seller's or third party's 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 Buyer's account shall be credited with an amount equal to
the mutually agreed direct labor costs expended in performing
the off-Aircraft repair of a Warranted Part and to the direct
costs of materials incorporated in said repair.
- For the determination of direct labor costs only xxxxxxxx
spent on disassembly, inspection, repair, reassembly, and
final inspection and test of the Warranted Part are
permissible. Any manhours required for maintenance work
concurrently being carried out on the Aircraft or Warranted
Part as well as for removal and installation of the
Warranted Part are not included.
- The manhours permissible above shall be multiplied by an
agreed labor rate, ("INHOUSE WARRANTY LABOUR RATE") and
representing the Buyer's 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 Buyer's 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
Clause 12 - 6/14
used for overhaul and as may be furnished by the Seller at
no charge.
(vi) LIMITATION
The Buyer shall in no event be credited for repair costs
(including labor and material) in excess of sixty-five per cent
(65%) 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 five thousand (US$ 5,000) 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 one hundred and twenty
(120) days after the date of completion of repair or sixty (60)
days after submission of a claim for Inhouse Warranty credit
relating thereto, whichever is longer. Such parts shall be
returned to the Seller within thirty (30) days of receipt of the
Seller's 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 Seller's 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
Seller's 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.
12.1.10 ACCEPTED INDUSTRY STANDARD PRACTICES - NORMAL WEAR AND TEAR
The Buyer's 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,
Clause 12 - 7/14
regulations and directives of relevant Aviation Authorities.
12.1.10.1 The Seller's 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;
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 SELLER'S 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 thirty thousand (30,000) flying hours, or has completed
twenty thousand (20,000) flight cycles, or within twelve (12) 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 Seller's financial participation as
hereinafter provided either:
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.
Clause 12 - 8/14
12.2.3 ***
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 Seller's warranty applicable to an Item under Clause
12.1.
12.2.4.2 The Buyer's remedy and the Seller's 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;
Clause 12 - 9/14
(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 Buyer's operational requirements and shall be
carried out at the Buyer's 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 sixty (60)
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 Failure and any Failures that could
ensue therefrom, the validity of the Seller's commitment under this
Clause 12.2 shall be subject to the Buyer's incorporating such
modification in the relevant Aircraft, as promulgated by the Seller
and in accordance with the Seller's 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 Seller's obligation herein is to furnish only those corrections to
the Items or provide replacement therefor as provided for in Clause
12.2.3.
The Buyer's 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 Buyer's rights under this Clause 12.2 shall not be assigned, sold,
leased, transferred or otherwise alienated by operation of law or
otherwise, without the Seller's prior consent thereto, which shall not
be unreasonably withheld and given in writing.
Clause 12 - 10/14
Any unauthorized assignment, sale, lease, transfer or other alienation
of the Buyer's 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 such warranties and service life policies that the
Seller has obtained pursuant to the Supplier Product Support
Agreement.
12.3.1 DEFINITIONS
12.3.1.1 "SUPPLIER" means any supplier of Supplier Parts.
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. However, 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 existing enforceable warranty agreements 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 SUPPLIER'S DEFAULT
12.3.2.1 In the event of any Supplier, under any standard warranty obtained by
the Seller pursuant to Clause 12.3.1, 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 Supplier's 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 12.3,1, 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
Supplier's Service Life Policy period as indicated in the Supplier
Product Support Agreement shall apply.
12.3.2.3 At the Seller's request, the Buyer shall assign to the Seller, and the
Seller shall be subrogated to, all of the Buyer's 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.
Clause 12 - 11/14
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
Aircraft ("INTERFACE PROBLEM"), the Seller shall, if so requested by
the Buyer, and without additional charge to the Buyer except for
transportation of the Seller's personnel to the Buyer's facilities,
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
Buyer's possession relevant to the Interface Problem, and shall
cooperate with the Seller in the conduct of the Seller's
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 Seller's opinion as to the cause or
causes of the Interface Problem and the Seller's recommendations as to
corrective action.
12.4.2 SELLER'S 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 Seller's obligation as defined in Clause 12.1.
12.4.3 SUPPLIER'S 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 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 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.
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.
Clause 12 - 12/14
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
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
SELLER'S 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.
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.
12.6 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
Clause 12 - 13/14
Agreement.
12.7 NEGOTIATED AGREEMENT
The Buyer specifically recognises that:
(i) the Specification has been agreed upon after careful
consideration by the Buyer using its judgment as a professional
operator;
(ii) this Agreement, and in particular this Clause 12, has been the
subject of discussion and negotiation and is fully understood by
the Buyer;
(iii) the price of the Aircraft and the other mutual agreements of the
Buyer set forth in this Agreement were arrived at in
consideration of, inter alia, the provisions of this Clause 12,
specifically including the waiver, release and renunciation by
the Buyer set forth in Clause 12.5.
Clause 12 - 14/14
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
legal costs (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
the 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 Aircraft, provided that:
(1) from the time of design of such Airframe, accessory,
equipment or part and until infringement claims are
resolved, such country and the flag country of the 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) from such time of design and until infringement claims are
resolved, such country and the flag country of the 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 Aircraft, any
copyright, provided that the Seller's 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
(iii) software not created by the Seller but provided by the Buyer or
caused to be provided by the Buyer.
Clause 13 - Page 1/2
13.1.3 In the event that the Buyer is prevented from using the Aircraft
(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 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) furnish to the Seller all data, papers and records within the
Buyer's 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 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) act in such a way as to 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 Seller's opinion, it
deems proper.
13.2.3 The Seller's 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.
Clause 13 - Page 2/2
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") / 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 the Aircraft Manufacturer's Serial Number within
forty-five (45) days after execution of this Agreement. The allocation
of Fleet Serial Numbers to Manufacturer's Serial Numbers 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 (and associated products),
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- 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
Clause 14 - Page 1/24
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 100/2200 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 enter into a "Data Supply/Exchange
Agreement" with the aim of managing the Buyer Furnished Equipment
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 set forth in the Data Supply/Exchange Agreement.
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.
14.4 DELIVERY
14.4.1 The Technical Data and corresponding revisions to be supplied by the
Seller shall be sent to one address only as advised by the Buyer.
14.4.2 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 no. 560 of the
International Chamber of Commerce, published in January 2000.
14.4.3 The delivery schedule of the Technical Data shall be phased as
mutually agreed to correspond with Aircraft deliveries. The Buyer
agrees to provide forty (40) days notice when requesting a change to
the delivery schedule.
14.4.4 It shall be the responsibility of the Buyer 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 Buyer Free Carrier (FCA) TOULOUSE, FRANCE and/or Free
Carrier (FCA) 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 three (3) years
after delivery of the last firmly ordered Aircraft covered under this
Agreement.
Clause 14 - Page 2/24
Thereafter revision service shall be provided at the standard
conditions set forth in the then current Seller's Customer Services
Catalog.
14.6 SERVICE BULLETINS (SB) INCORPORATION
During the period of revision service and upon the Buyer's request for
incorporation, which shall be made within two years after issuance of
a Service Bulletin, Seller's Service Bulletin information shall be
incorporated into the Technical Data for the Buyer's 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 Buyer's
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 a one (1)
week Technical Data familiarization training at the Seller's or at the
Buyer's facilities. If such familiarization is conducted at the
Buyer's facilities, the Buyer shall reimburse the Seller for all air
travel (business class) and living expenses of the representatives of
the Seller conducting such familiarization.
14.9 CUSTOMER ORIGINATED CHANGES (COC)
14.9.1 Buyer originated data may be introduced as COC into the following
customized Technical Data:
- Aircraft Maintenance Manual (and associated products),
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- Aircraft Wiring Lists,
- Flight Crew Operating Manual,
- Quick Reference Handbook.
14.9.2 COC data shall be established by the Buyer according to the Customer
Guide for Customer Originated Changes, as issued by the Seller. The
Buyer shall ensure that any such data is in compliance with the
requirements of its local Aviation Authorities.
COC data shall be incorporated 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
Clause 14 - Page 3/24
COC data and not the configuration before such COC data's
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 Buyer's risk and that the Seller shall not be required to check
any COC data submitted for incorporation.
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, OF ANY CUSTOMER ORIGINATED CHANGES
INCORPORATED INTO THE TECHNICAL DATA ISSUED BY THE SELLER.
THE FOREGOING DISCLAIMER SHALL ALSO APPLY TO ANY OTHER PORTION OF THE
SELLER'S TECHNICAL DATA WHICH MAY BE 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 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.
14.9.4 The incorporation of any COC as aforesaid shall be performed under the
conditions specified in the Seller's then current Customer Services
Catalog.
14.10 SOFTWARE SERVICES
14.10.1 PERFORMANCE ENGINEER'S 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 Engineer's 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 Seller's Customer Services
Catalog.
14.10.2 AIRN@V BASIC CONSULTATION
Clause 14 - Page 4/24
Certain Technical Data are provided on DVD under licence conditions
as defined in Appendix A to this Clause.
The affected Technical Data under Basic AirN@v are the following;
- Trouble Shooting Manual,
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog.
The licence to use Basic AirN@v shall be granted free of charge for
the Aircraft for as long as the revisions of Basic AirN@v are free
of charge in accordance with Clause 14.5. At the end of such period,
the yearly revision service for Basic AirN@v shall be provided to
the Buyer at the standard commercial conditions set forth in the
then current Seller's Customer Services Catalog.
14.10.3 AIRBUS ON-LINE SERVICES
Airbus On-Line Services is a database allowing the Buyer to access
through a web-portal a wide range of services.
For the sake of clarification, it is hereby specified that Technical
Data accessed through Airbus On-Line Services, which access is
covered by licence conditions set forth in Appendix C hereto, remain
subject to the conditions of this Clause 14.
In addition, should Airbus On-Line Services provide access to
Technical Data in software format, the use of such software shall be
further subject to the conditions of Appendix A hereto.
14.10.3.1 AIRBUS ON-LINE BASIC SERVICES
The Airbus On-Line Basic Services available free of charge under
this Agreement, as described in Appendix B hereto, shall be provided
for as long as the Aircraft are operated by the Buyer.
14.10.3.2 ON-LINE TECHNICAL DATA
14.10.3.2.1 Certain Technical Data as defined in Exhibit "G" are provided
on-line at no cost as long as revision service is provided 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-One, the
Seller reserves the right to suppress other formats for the
concerned Technical Data.
14.10.3.3 Access to Airbus On-Line Services shall be granted free of charge
for a maximum of twenty-five (25) of the Buyer's users (including
one Buyer Administrator) for the Technical Data related to the
Aircraft which shall be operated by the Buyer.
14.10.3.4 Access to Airbus On-Line Services is subject to licence conditions
as set forth in Appendix C hereto.
14.11 WARRANTIES
14.11.1 The Seller warrants that the Technical Data are prepared in
accordance with the
Clause 14 - Page 5/24
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.
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
SELLER'S 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 ANY OF ITS AFFILIATES.
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 provides 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.
Clause 14 - Page 6/24
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 agree
to be bound by the same conditions and restrictions as the Buyer
with respect to the disclosed Technical Data.
Clause 14 - Page 7/24
APPENDIX A TO CLAUSE 14
LICENCE FOR USE
OF
SOFTWARE
Clause 14 - Page 8/24
LICENCE FOR USE OF SOFTWARE
1. DEFINITIONS
For the purposes of this licence the following definitions shall apply:
"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 the 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 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 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 from the
date of first delivery of the Software to
Clause 14 - Page 9/24
December 31st of the year of delivery. For the following years, the rights
under this Software Licence shall be automatically granted to the Licensee
from January 1st to December 31st, subject to compliance by the Licensee
with its obligations.
The Licensee may terminate the Software Licence by notifying in writing to
the Licensor its desire not to renew the service for the following year.
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 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 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, 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;
Clause 14 - Page 10/24
- 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, to come and verify in the
Licensee's 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 Licensee's request on a
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.
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 normal use of 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;
- 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 ten (10)
years.
Clause 14 - Page 11/24
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 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, ITS SUPPLIERS AND/OR THEIR INSURERS, 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
LICENSOR'S 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, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
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 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.
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
Licensor's or its subcontractors' control including but not limited to:
Clause 14 - Page 12/24
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 subcontractor's or vendor's
control or failure of the Licensee to comply with its obligations arising
out of the present Software Licence.
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.
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 Licensor's Affiliates.
15.2 This Software Licence shall be governed by the laws of France. All
disputes arising in connection with this Software Licence shall be
submitted to the competent courts of Toulouse, France.
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 sender's telefax machine, shall be deemed to be the
effective date of such notice or request.
Clause 14 - Page 13/24
APPENDIX B TO CLAUSE 14
APPENDIX B TO CLAUSE 14
AIRBUS ON-LINE SERVICES
BASIC SERVICES
Clause 14 - Page 14/24
APPENDIX B TO CLAUSE 14
BASIC SERVICES
[ ] MAINTENANCE & ENGINEERING
- ENGINEERING TECHNICAL DATA SERVICE (ETDS)
The ETDS service shall provide access, via a document index, to the
contents of:
- Service Bulletins - issued since beginning of 1993 (SB's
after July 1997 in SGML; SB's between 1993 and July 1997
in PDF)
- Modification Information Document (MID)
- All Operators Telex (AOT)
- Flight Operations Telex (FOT)
- Service Information Letter (SIL)
- Consignes de Navigabilite (CN)
- Airworthiness Directives (AD)
- Technical follow-up (TFU)
- Operators Information Telex (OIT)
- QUARTERLY SERVICE REPORT (QSR)
The QSR-WEB is the new electronic format of the Quarterly Service
Report, featuring Web technology.
- REPAIR GUIDE (ARG/AOG)
This service shall provide the Buyer with information about
Suppliers' authorized repair stations and the AOG stock locations.
- MODIFICATION COMPARISON LIST (ACCL)
The purpose of this service is to provide the Buyer with
Modification Comparison Lists that are created for each and every
aircraft delivered.
[ ] TRAINING
The training catalog is available.
Clause 14 - Page 15/24
APPENDIX B TO CLAUSE 14
[ ] MATERIEL
- SPARES ORDERING
This service is already available in an autonomous mode
(xxxx://xxxxxx.xxxxxx.xxx). The integration in Airbus On-Line
Services Basic services is in progress.
[ ] GENERAL INFORMATION
- CUSTOMER SERVICES CATALOG
- WARRANTY CLAIM (CAWA)
Four main functions are available:
- Warranty claims booking
- Consultation of the warranty claims status
- Consultation of statistics on response time regarding
closed/open files
- Consultation of warranty guide
NOTE: Warranty Services are aimed at people who have authority to
file warranty claims.
- VENDOR INFORMATION MANUAL (VIM)
The VIM/E gives contact for major equipment Suppliers, who have
signed Customer Support agreements with the Seller, including their
Regional Customer Support facilities and equipment by aircraft type.
- SUPPLIER PRODUCT SUPPORT AGREEMENT (SPSA)
The SPSA is the collection of the Agreements that the Seller has
reached with its major Suppliers; these Agreements are transferable
to the Buyer.
These Agreements are based on the Seller's GCP/General Conditions of
Purchase, Part II, 450, 650 and 2000.
Clause 14 - Page 16/24
APPENDIX C TO CLAUSE 14
APPENDIX C TO CLAUSE 14
LICENCE FOR USE OF AIRBUS ON-LINE SERVICES
Clause 14 - Page 17/24
APPENDIX C TO CLAUSE 14
AIRBUS ON-LINE SERVICES GENERAL CONDITIONS OF LICENSING
These Airbus On-Line Services General Conditions of Licensing ("the CONDITIONS")
shall apply to services provided by the Seller in relation with Airbus On-Line
Services.
1. DEFINITIONS
In these Conditions:
The "Access Procedure Kit" means the information necessary for
accessing the Database.
The "Administrator" means the person appointed by the User
Entity to be responsible for
qualifying, suspending or canceling
the qualification of an Authorized
User, gathering identification
information relative to such
Authorized User, applying to the
Certification-Service-Provider for the
appropriate Certificate, providing the
necessary access equipment as
specified by the Seller, registering
the Authorized User and the Authorized
User related Certificate with the
Seller and managing the Authorized
Users.
The "Authorized User" means a natural person who has been
authorized by the Administrator of the
User Entity to access the Database
under these Conditions.
The "Certificate" means an electronic record (file) that
binds a Public Key to the identity of
the owner of a Public - Private Key
pair and is signed by the
Certification-Service-Provider.
The "Certification-Service- means an entity or a legal or natural
Provider" person retained by the Seller, who
issues Certificates and/or provides
other services related to Electronic
Signature.
The "Data" means usual representation of a piece
of information - whether collected or
produced on any medium - so as to
facilitate its processing on the
Database.
The "Database" means Data of the Seller organized in
such a manner as to be used by
computer programs forming distinct
applications to facilitate electronic
or telecommunication Data exchange and
computer programs comprising the
necessary electronic elements for the
operation of the Database such as a
Database index, viewing systems, and
database services known as Airbus
On-Line Services.
The "Electronic Signature" means data in electronic form which
are attached to or logically
associated with other electronic data
and which serve as a method of
authentication.
The "Extracting" means temporary or permanent transfer
of Data from a Database by any means
or media.
The "Multibase" means a set of databases, which
compose the Database.
The "On-Line Help" means on-line operating assistance and
guidance information.
The "Public key" means the public cryptographic key
used for the purpose of verifying an
Electronic Signature.
The "Public Key Infrastructure" means the system organizing the
generation and distribution of keys
and Certificates.
Clause 14 - Page 18/24
APPENDIX C TO CLAUSE 14
The "Private Key" means the private cryptographic key
used for the purpose of creating an
Electronic Signature.
The "Reader" means equipment to be acquired by the
User Entity to be used with the
Smartcard for authentication of the
User Entity's Authorized Users.
The "Smartcard" means a card supplied by the Seller,
memorizing the User Entity's
Authorized User's identity, personal
password and Private Key for use with
the Reader for authentication and
security purposes.
The "Substantial Extraction" means permanent or temporary transfer
of a substantial part of the Data from
the Database by any means or media.
The "Use" means viewing, Extracting, reviewing,
printing, reproducing, on any media,
of Data from the Database, under the
conditions set forth in these
Conditions.
The "User Entity" means the Buyer.
The "User Guide" means documentation, which may be in
electronic format, designed to assist
the Authorized User to use the
Database.
Capitalized terms used herein and not otherwise defined in these
Conditions shall have the meaning assigned thereto in the Agreement.
2. SCOPE
2.1 The Seller has built an original Database from Data realized and collected
by the Seller related to Airbus aircraft technical and commercial
documentation and information, which is available via a set of services
known as Airbus On-Line Services ("AIRBUS ON-LINE SERVICES"). The
different Airbus On-Line Services may be accessed via Airbus On-Line
Services website.
2.2 The Conditions define the terms and conditions under which the Seller
grants the User Entity, who accepts, a personal, non-exclusive,
non-assignable and non-transferable right to use Data from the Airbus
On-Line Services Database for its own professional needs.
2.3 The User Entity represents to be competent to use and evaluate the Airbus
On-Line Services and represents further that the Database matches its
professional needs. The User Entity also represents to have the adequate
resources to administer its Authorized Users and to implement Electronic
Signature technology.
3. LICENCED RIGHTS
The User Entity shall be granted, for Authorized Users only, a
non-exclusive, personal, non-transferable, non-assignable right to access,
use, extract, reproduce, print Data from the Database from the site(s)
designated by the Seller for its own strictly professional needs for the
duration of these Conditions.
Such right shall extend to all Authorized Users of the User Entity on the
basis of the level of service selected by the User Entity. The User Entity
shall not, under any circumstances, carry out a Substantial Extraction of
Data from the Database.
4. CONFIGURATION
The User Entity acknowledges that the Seller may not be held responsible
for any consequences attached to the Seller's modification from time to
time of its information system's configuration, including its operating
system, and of any software used in connection with the Database.
Clause 14 - Page 19/24
APPENDIX C TO CLAUSE 14
5. DATABASE CONDITIONS OF USE
5.1 The User Entity shall appoint one or several Administrators who shall be
responsible for qualifying, suspending or canceling the qualification of
Authorized Users, gathering identification information relative to such
Authorized Users, applying to the Certification-Service-Provider for the
appropriate Certificate, providing the necessary access equipment as
specified by the Seller, registering the Authorized Users and the
Authorized User related Certificates with the Seller and managing the
Authorized Users.
An Authorized User may access Airbus On-Line Services by logging onto the
Airbus On-line Services website as specified by the Seller. Log on
procedures set forth by the Seller and in the Access Procedure Kit made
available to the User Entity require a Certificate issued by a
Certification-Service-Provider, used with the Authorized User's Smartcard
and a Reader for the Administrator.
5.2 The User Entity is only granted the right to use the Airbus On-Line
Services Database services under the terms and conditions set forth
herein. The Database shall only be used for the User Entity's own
professional needs. The User Entity shall be solely responsible for the
choice of the services it wishes to access.
The User Entity is solely responsible for defining its own search strategy
on the Database, for evaluating the appropriateness of the search results
and for defining how to use the Data obtained from the Database.
The User Entity shall take every measure necessary to prevent unauthorized
access to the Database, the Data and to the documentation including the
User Guide. Positive authentication of an Authorized User in the
conditions set forth herein and as specified by the Seller shall bind the
User Entity for each and every transaction performed by such Authorized
User and the User Entity expressly waives any right to repudiate any
transaction resulting from such Use.
The User Entity shall comply with the security procedure as defined by the
Seller.
6. DATABASE AVAILABILITY
The Database shall be available to the User Entity on a 24 hours a day / 7
days a week basis. Notwithstanding the above, the Seller reserves the
right to suspend temporarily the access to Airbus On-Line Services where
such suspension is necessary for fixing security problems, performing
maintenance services, updating and/or upgrading the Database. The Seller
shall inform the User Entity in due time before any scheduled suspension,
except in case of security problems.
7. EVIDENTIARY AGREEMENT
The electronic logs produced by the Seller's information system shall be
held as valid evidence of the communications, transactions and payments
made between the Seller and the User Entity via reiterated, electronically
communicated consent. The Seller shall store such logs in a reasonably
secure manner on its information system or any third party's system or
medium.
The Seller shall also ensure that such data contained on such logs are not
altered or modified after their initial recording.
8. ELECTRONIC SIGNATURE
The use by the User Entity of the Certificates together with the Readers
remains within the User Entity's sole control and shall attest:
- authentication of the User Entity and the Authorized User;
- authentication of the Data communicated by and/or to the User Entity
and the Authorized User;
- Electronic Signature of the User Entity and the Authorized User.
Clause 14 - Page 20/24
APPENDIX C TO CLAUSE 14
9. CERTIFICATION
The Seller shall specify a Certification-Service-Provider, who shall
provide for certification of the Authorized Users.
Such Certification-Service-Provider shall, upon the User Entity's
application, issue one or several Certificates containing the
identification of the Certification-Service-Provider and the country in
which such Certificate was established, the identification of the User
Entity and the Authorized User, the User Entity's and the Authorized
User's Public Key corresponding to the User Entity's and the Authorized
User's Private Key, the identity code of the Certificate, the Electronic
Signature of the Certification-Service-Provider issuing the Certificate
and possible limitations on the scope of use of the Certificate.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The User Entity is hereby informed that the Database is owned by the
Seller and/or its Affiliates, as the case may be, pursuant to French
intellectual property laws. The User Entity shall not infringe directly
or indirectly the Seller's and/or its Affiliates' ownership rights on the
Database. The User Entity shall not deactivate the Database-integrated
security system.
10.2 The User Entity is not authorized to make representations in any form
whatsoever, to market or to promote the Database or any Data from the
Database, whether gratuitously or for a consideration. The User Entity is
not authorized to adapt, modify, alter, arrange or translate the Database
for any reason. The User Entity is not authorized to create a new
Database competing with the Seller's Database. The User Entity is not
authorized to alter in any way the Database's architecture.
10.3 The User Entity shall inform members of its personnel, agents and
representatives of the terms of the foregoing disposition as well as of
the terms limiting the Database Use provided under these Conditions. The
User Entity shall take all necessary steps to prevent unauthorized access
to the Database. The User Entity shall maintain all copyright mentions
appearing on the Database, Data and documentation including User Guide,
on any media.
10.4 The foregoing does not operate any assignment of intellectual property
rights to the User Entity but, rather, grants the User Entity rights to
use the Database as provided under these Conditions.
10.5 User documentation, including User Guide and On-Line Help, is and shall
remain the Seller's property. The User Entity is granted a right to use
such documentation solely in connection with its Use of the Database.
11. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
The Seller shall defend and indemnify the User Entity against any claim
that the normal Use of the Database infringes the intellectual property
rights of any third party, provided that the User Entity:
- immediately notifies the Seller of any such claim;
- makes no admission or settlement of any claim;
- allows the Seller to have sole control over such claim;
- gives the Seller all reasonable assistance in connection therewith.
12. WARRANTY
12.1 The Seller warrants that the Database is prepared in accordance with the
state of art at the date of conception. Should the Database be found to
contain any non-conformity or defect, the User Entity shall notify the
Seller promptly thereof and the sole and exclusive liability of the
Seller under these Conditions shall be to correct the same at its own
expense.
12.2 The above warranty is subject to the following conditions:
12.2.1 By reason of (i) the diversity of the information sources, (ii) the
information processing complexity, (iii) the difficulty to control
sources by cross-checking, the User Entity shall use the Data with care.
12.2.2 The User Entity shall inform the Seller of any error or lack of Data it
may become aware of during the performance
Clause 14 - Page 21/24
APPENDIX C TO CLAUSE 14
of these Conditions. Data transmission occurs at the User Entity's own
risks.
12.2.3 The User Entity shall be solely responsible for selecting and maintaining
telecommunication lines, information system equipment and configuration,
software, including browser, and software products enabling the User
Entity to access the Airbus On-Line Services website.
12.2.4 The User Entity is aware of the limitations of the Airbus On-Line
Services website, including in terms of the network's availability, speed
or malfunction and that it shall in no event hold the Seller responsible
for such shortcomings inherent to the network. Further, the User Entity
shall ensure that any software, including proprietary software, which may
interface with the relevant Database does not affect the Database access
conditions.
12.2.5 The User Entity shall comply with its obligations related to the access
and Use of the Database defined in these Conditions.
12.3 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS
SUPPLIERS AND REMEDIES OF THE USER ENTITY SET FORTH IN THESE CONDITIONS
ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE USER ENTITY 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
USER ENTITY AGAINST THE SELLER, ITS SUPPLIERS AND/OR THEIR INSURERS
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN THE DATABASE MADE AVAILABLE UNDER THESE
CONDITIONS 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
SELLER'S 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 THE DATABASE MADE AVAILABLE 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 DATABASE MADE AVAILABLE UNDER THESE
CONDITIONS.
FOR THE PURPOSES OF THIS CLAUSE 12.3, "THE SELLER" SHALL INCLUDE THE
SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
13. NON DISCLOSURE
The User Entity shall not disclose the Database or parts thereof and its
contents to any third party without the prior written consent of the
Seller. In so far as it is necessary to disclose aspects of the Database
to employees, such disclosure is permitted only for the purpose for which
the Database is supplied and only to the employee who needs to know the
same.
14. ADMINISTRATIVE AUTHORIZATIONS
The Seller and the User Entity shall assist one another and co-operate in
order to obtain and hold all necessary administrative authorizations for
the performance of these Conditions.
Clause 14 - Page 22/24
APPENDIX C TO CLAUSE 14
15. PERSONAL DATA PROTECTION
The Seller and the User Entity shall register with the relevant authority
or authorities any personal data files or personal data automated
processing systems as provided under applicable local laws and shall
inform each other of any information system evolution, which could affect
such registration(s).
The User Entity is hereby notified in accordance with article 27 of French
law no. 78-17 of January 6,1978, that the Seller shall request personal
data from the User Entity for accessing the Database. Failure to provide
such data shall prevent access to the Database. Personal data shall be
used by the Seller, its Affiliates and subcontractors for the sole purpose
of connecting and accessing the Database by the User Entity and shall be
kept strictly confidential. Such personal data are protected by the above
mentioned law.
Personal data may be accessed by the User Entity and, as the case may be,
rectified in writing addressed to the Seller. The User Entity shall notify
Authorized Users of their aforementioned rights and shall personally abide
by applicable rules on personal data protection.
16. EXCUSABLE DELAYS
16.1 The Seller shall not be responsible nor be deemed to be in default on
account of delays in delivery or otherwise in the performance of these
Conditions or any part thereof due to causes reasonably beyond the
Seller's or its subcontractors' control 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 User Entity or the
governments of the countries of the Seller 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 subcontractor's or vendor's
control or failure of the User Entity to comply with its obligations
arising out of the present Conditions.
16.2 The Seller shall, as soon as practicable after becoming aware of any delay
falling within the provisions of this Clause, notify the User Entity 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 these
Conditions.
16.3 Should an event of force majeure last for a period extending beyond three
(3) months, these Conditions shall be automatically terminated, as a
matter of right, unless otherwise agreed in writing, without compensation
for either the Seller or the User Entity.
17. TERMINATION
17.1 In the event of breach of an obligation set forth in these Conditions by
either the Seller or the User Entity, 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 these Conditions.
17.2 In the event of termination for any cause, the User Entity shall no longer
have any right to use the Database, the Seller shall be entitled to retain
any amount paid for the ongoing year.
18. GENERAL PROVISIONS
18.1 ASSIGNMENT
These Conditions or part thereof may not be assigned to a third party
without the prior consent of the other party except that the Seller may
assign all or part of these Conditions to any of its Affiliates.
Clause 14 - Page 23/24
APPENDIX C TO CLAUSE 14
18.2 LAW
These Conditions shall be governed by the laws of France. Ail disputes
arising in connection with these Conditions shall be submitted to the
competent courts in Toulouse, France.
18.3 INVALIDITY
In the event that any provision of these Conditions should for any reason
be held ineffective, the remainder of these Conditions shall remain in
full force and effect.
18.4 NOTICES
All notices and requests required or authorized hereunder shall be given
in writing either by registered mail (return receipt requested] or by
telefax at the addresses set forth below. In the case of any such notice
or request being given by registered mail, the date upon which it is
received by the addressee or, in the case of a telefax, the date upon
which it is sent with a correct confirmation printout, shall be deemed to
be the effective date of such notice or request.
Clause 14 - Page 24/24
15 SELLER REPRESENTATIVES
15.1 CUSTOMER SUPPORT MANAGER
The Seller shall assign one (1) customer support manager based at
the Seller's main office to coordinate customer support matters
between the Seller's main office and the Buyer after signature of
this Agreement for as long as one (1) Aircraft is operated by the
Buyer.
15.2 CUSTOMER SERVICES REPRESENTATIVES
15.2.1 ***
15.2.2 ***
15.2.3 ***
15.2.4 ***
15.2.5 ***
15.3 ***
15.3.1 ***
15.3.2 ***
15.3.3 ***
15.3.4 ***
Clause 15 - 1/3
15.3.5 The Buyer shall assist the Seller to obtain from the civil
authorities of the Buyer's country those documents which are
necessary to permit the Seller's Representatives to live and work in
the Buyer's country. Failure of the Seller to obtain the necessary
documents shall relieve the Seller of any obligation to the Buyer
under the provisions of Clause 15.2.
15.3.6 The Buyer shall reimburse to the Seller charges, taxes, duties,
imposts or levies of any kind whatsoever, imposed by authorities of
the Buyer's country upon:
- the entry into or exit from the Buyer's country of the Seller's
Representatives and their families,
- the entry into or the exit from the Buyer's country of the
Seller's Representatives and their families' personal property,
- the entry into or the exit from the Buyer's country of the
Seller's property.
15.4 WITHDRAWAL OF THE SELLER'S REPRESENTATIVES
The Seller shall have the right to withdraw its assigned Seller
Representatives as it sees fit if conditions arise which are in the
Seller's opinion dangerous to their safety or health or prevent them
from fulfilling their contractual tasks.
15.5 SELLER'S REPRESENTATIVES' STATUS
In providing the above technical services, the Seller's
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
Buyer's employees or agents, either directly or indirectly.
15.6 INDEMNITIES
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET
FORTH IN CLAUSE 19.
Clause 15 - 2/3
APPENDIX A TO CLAUSE 15
SELLER REPRESENTATIVE ALLOCATION
The Seller Representative allocation that is provided to the Buyer
pursuant to Clause 15.2 is defined hereunder.
1 The Buyer shall be provided a total of one hundred fifty (150) man-months
of Seller Representative services at the Buyer's main base or at other
locations to be mutually agreed.
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 Seller's Representatives assigned to the Buyer at any
one time shall be mutually agreed, but at no time shall it exceed three
(3) men.
4 Absence of an assigned Seller's Representative during normal statutory
vacation periods are covered by the Seller's Representatives as defined in
Clause 15.2.2 and as such are accounted against the total allocation
provided in item 1 above.
Clause 15 - 3/3
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 Buyer's 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 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.
16.2.3 In the event that the Buyer should use none or only part of the
training or training aids to be provided pursuant to this Clause 16,
no compensation or credit of any sort shall be provided.
16.3 TRAINING ORGANISATION/LOCATION
16.3.1 The Seller shall provide training at its training center in Blagnac,
France (the "SELLER'S 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 of such
training support elsewhere.
16.3.3 Upon the Buyer's request, the Seller may also provide certain
training at a location other than the Seller's Training Center or
Affiliated Training Centers, including one of the Buyer's 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.
16.4 TRAINING COURSES
16.4.1 Training courses, as well as the minimum and maximum numbers of
trainees per course provided for the Buyer's personnel, are defined
in the applicable brochure describing the various Seller's training
courses (the "SELLER'S TRAINING COURSE CATALOG") and shall be
scheduled as mutually agreed upon during a training conference ("the
TRAINING CONFERENCE") to be held at least twelve (12) months prior
to Delivery of the first Aircraft.
16.4.2 When training is performed by the Seller:
(i) Training courses shall be the Seller's standard courses as
described in the applicable Seller's Training Course Catalog
valid at the time of the execution of the course. The Seller
shall be responsible for all training
Clause 16 - 1/18
course syllabi, training aids and training equipment necessary
for the organisation of the training courses;
(ii) 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 relevant Aviation Authorities' approval
and to support the Seller's training programs. Training data
and documentation shall not be revised;
(iii) Training data and documentation for trainees receiving the
training at the Seller's Training Center 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;
(iv) Upon the Buyer's request, the Seller shall collect and pack
for consolidated shipment to the Buyer's facility, all
training data and documentation of the Buyer's trainees
attending training at the Seller's Training Center or
Affiliated Training Centers at no charge to the Buyer;
The above shipment shall be delivered Free Carrier ("FCA")
Toulouse, Blagnac Airport, or the airport closest to the
Seller's Affiliated Training Center at which the training
actually takes place, as applicable, as the term Free Carrier
("FCA") is defined by publication No. 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 training courses are provided by the Seller's instructors,
upon successful completion of the training course by the trainee(s),
the Seller shall deliver to the trainees a certificate of completion
at the end of any such training course. The Seller's certificate
does 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 being provided by a training provider
selected by the Seller, the Seller shall cause such training
provider, upon successful completion of the training course by the
trainee(s), to deliver a certificate of completion at the end of any
such training. 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.
16.4.4 In the event of the Buyer deciding to cancel or re-schedule a
training course, if the cancellation is notified between 60 and 45
days prior to the training, a cancellation charge of fifty percent
(50%) shall be applied.
If the notification occurs less than 45 days prior to the training,
a cancellation charge of one hundred percent (100%) shall be
applied.
The above cancellation charges shall be applied, when courses cannot
be allocated to other customers, through deduction from the training
allowances defined in Appendix A to this Clause 16.
Clause 16 - 2/18
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 Seller's training courses are
"Transition Training Courses" and not "Ab Initio Training Courses".
The Buyer 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 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 trainee's
performance as a result of any training provided.
16.5.2.2 The Buyer 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 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 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 Buyer's 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 Buyer's 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, 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
Buyer's trainees to and from designated pick-up points and the
Seller's Training Center or Affiliated Training Centers.
16.6.1.2 Living expenses for the Buyer's trainees shall be borne by the
Buyer.
16.6.2 TRAINING AT EXTERNAL LOCATION - SELLER'S INSTRUCTORS
In the event of training being provided at an external location
specifically at the Seller's 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 Seller's Training Center or
Affiliated Training Centers.
Clause 16 - 3/18
In the event of training being provided by the Seller's instructors
at any location other than the Seller's Training Center or
Affiliated Training Centers at the Buyer's request or as otherwise
detailed in this Clause 16, the Buyer 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 Seller's 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
The Buyer shall reimburse the Seller the costs for the Seller's
instructors in confirmed business class to and from the Buyer's
designated training site and the Seller's Training Center or
Affiliated Training Center, as applicable.
16.6.2.3 TRAINING MATERIAL
The Buyer 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 Seller's or the Seller's
Affiliated Training Centers associated with any transportation
described in this Clause 16.6.
16.6.3 TRAINING EQUIPMENT AVAILABILITY - TRAINING AT EXTERNAL LOCATION
Training equipment necessary for course performance at any course
location other than the Seller's Training Center or Affiliated
Training Centers or the facilities of the training provider selected
by the Seller shall be provided by the Buyer in accordance with the
Seller's 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 the Buyer's flight crews, each of which shall
consist of one (1) captain and one (1) first officer. The training
manual used shall be the Seller's Flight Crew Operating Manual.
16.7.1.2 Base Flight Training
16.7.1.2.1 The Buyer shall use its delivered Aircraft, or any other aircraft
operated by the Buyer, for any base flight training, which shall not
exceed one (1) session of forty five (45) minutes per pilot,
according to the related Airbus training course definition.
Clause 16 - 4/18
16.7.1.2.2 In the event of it being necessary to ferry the Buyer's 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 Seller's and/or
the Buyer's qualified pilots, in accordance with the Aviation
Authorities' regulations related to the place of performance of the
base flight training.
16.7.1.2.3 During any and all flights performed in accordance with this Clause
16.7.1.2, the Buyer 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.
16.7.2 FLIGHT CREW LINE INITIAL OPERATING EXPERIENCE
16.7.2.1 To assist the Buyer with initial operating experience after Delivery
of the first Aircraft, the Seller shall provide to the Buyer pilot
instructor(s) as defined in Appendix A to this Clause 16.
16.7.2.2 The Buyer shall reimburse the expenses for each such instructor in
accordance with Clause 16.6.2. Additional pilot instructors can be
provided at the Buyer's expense and upon conditions to be mutually
agreed upon.
16.7.3 INSTRUCTOR CABIN ATTENDANTS' FAMILIARIZATION COURSE
The Seller shall provide instructor cabin attendants' course(s) to
the Buyer's 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 Buyer's Aircraft, can be given at the earliest one
(1) month before the Delivery date of the Buyer's first Aircraft.
16.7.4 PERFORMANCE/OPERATIONS COURSE
The Seller shall provide performance/operations training for the
Buyer's personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller's applicable Training
Courses Catalog.
16.7.5 TYPE RATING INSTRUCTOR (TRI) COURSE
The Seller shall provide type rating instructor (TRI) training for
the Buyer's flight crew instructors as defined in Appendix A to this
Clause 16.
This course provides the Buyer's instructors with the training in
flight instruction and synthetic instruction required to instruct on
Airbus aircraft.
16.8 MAINTENANCE TRAINING
Clause 16 - 5/18
The Seller shall provide maintenance training for the Buyer's ground
personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller's applicable Training
Courses Catalog.
The Buyer 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
Seller's Training Center or Affiliated Training Centers. In the
event of additional practical training being required, such
additional practical training can be organised with the assistance
of the Seller, in accordance with Clause 16.8.1 hereunder.
16.8.1 PRACTICAL TRAINING
In the event of the Buyer requiring JAR 147, or equivalent, approved
practical training, the Seller may assist the Buyer in organising
such practical training, which shall be at the Buyer's expense.
If the Seller is requested to provide an instructor for the
practical training, such provision 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 Buyer 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 Buyer during the entry into service of the
Aircraft, the Seller shall provide to the Buyer maintenance
instructor(s) at the Buyer's 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.
16.8.2.2 The Buyer shall reimburse the expenses for said instructor(s) in
accordance with Clause 16.6.2. Additional maintenance instructors
can be provided at the Buyer's expense.
16.9 SUPPLIER AND ENGINE MANUFACTURER TRAINING
The Seller shall ensure that major Suppliers and the applicable
Propulsion Systems Manufacturer provide maintenance training and
overhaul training on their products at appropriate times.
A list of the Suppliers concerned may be supplied to the Buyer upon
request.
16.10 TRAINING AIDS FOR THE BUYER'S TRAINING ORGANISATION
16.10.1 The Seller shall provide to the Buyer the AIRBUS COMPUTER BASED
TRAINING (AIRBUS CBT) and training aids, as used in the Seller's
Training Center, free of charge as defined in Appendix A to this
Clause 16.
Clause 16 - 6/18
The Airbus CBT and training aids supplied to the Buyer shall be
similar to those used in the Seller's Training Center for the
training provided for the Buyer. The Airbus CBT in use at the
Seller's Training Center is revised on a regular basis and such
revision shall be provided to the Buyer during the period when
training courses provided under Appendix A of this Clause 16 are
performed for the Buyer or up to one (1) year after Delivery of the
last Aircraft delivered under this Agreement, whichever first
occurs.
16.10.2 DELIVERY
16.10.2.1 The Seller shall deliver to the Buyer 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 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 Buyer's facilities shall be at the Buyer's
expense.
16.10.3 INSTALLATION OF THE AIRBUS CBT
16.10.3.1.1 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, at the Buyer's facilities, the Airbus CBT
Administrator Course, as defined in Appendix C hereto.
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 Buyer's 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 Buyer's personnel.
16.10.3.2 Upon the Buyer's request and subject to conditions to be quoted by
the Seller, the Seller may assist the Buyer with the initial
installation of the Airbus CBT at the Buyer's 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 Buyer's facilities.
16.10.3.3 The Buyer shall reimburse the expenses in accordance with Clause
16.6.2, for the Seller's personnel required at the Buyer's
facilities to conduct the Airbus CBT Administrator Course and/or
provide installation assistance.
16.10.4 AIRBUS CBT LICENSE
16.10.4.1 The Seller shall grant the Buyer a Licence to use the Airbus CBT,
under conditions defined in Appendix C to this Clause 16.
Clause 16 - 7/18
16.10.4.2 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.
16.10.5 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 and any training aids provided under this
Clause 16.10.
16.11 PROPRIETARY RIGHTS
The Seller's training data and documentation, Airbus CBT 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.
Clause 16 - 8/18
APPENDIX A TO CLAUSE 16
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 Buyer's fleet of twenty (20) Aircraft,
unless otherwise specified.
1. FLIGHT OPERATIONS TRAINING
1.1 FLIGHT CREW LINE INITIAL OPERATING EXPERIENCE
1.1.1 The Seller shall provide to the Buyer pilot instructor(s) free of
charge for a period of twelve (12) pilot instructor months.
1.1.2 The maximum number of pilot instructors present at any one time
shall be limited to three (3) pilot instructors.
1.2 INSTRUCTOR CABIN ATTENDANTS' FAMILIARIZATION COURSE
The Seller shall provide to the Buyer two (2) courses of instructor
cabin attendants' training free of charge for fourteen (14) of the
Buyer's instructor cabin attendants per course.
1.3 PERFORMANCE/OPERATIONS COURSE(S)
1.4.1 The Seller shall provide to the Buyer four hundred (400) trainee
days of performance/operations training free of charge for the
Buyer's personnel.
1.4.2 The above trainee days shall be used solely for the
performance/operations training courses as defined in the Seller's
applicable Training Course Catalog.
1.5 INITIAL TYPE RATING INSTRUCTOR (TRI) COURSE
The Seller shall provide to the Buyer type rating instructor
training (initial, transition or CCQ, as applicable) free of charge
for twenty (20) of the Buyer's flight instructors.
2 MAINTENANCE TRAINING
2.1 MAINTENANCE TRAINING COURSES
2.1.1 The Seller shall provide to the Buyer four thousand two hundred
(4,200) trainee days of maintenance training free of charge for the
Buyer's personnel.
2.1.2 The above trainee days shall be used solely for the Maintenance
training courses as defined in the Seller's applicable Training
Courses Catalog.
Clause 16 - 9/18
APPENDIX A TO CLAUSE 16
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.
2.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
The Seller shall provide to the Buyer an allowance of maintenance
instructor(s) weeks at the Buyer's base free of charge for of eight
(8) weeks, up to the "A" check.
3 TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
3.1 For instruction at the Seller's Training Center 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 Seller's Training Center 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 In the event of training being provided outside of the Seller's
Training Center or Affiliated Training Centers specifically at the
Seller's request, Paragraph 3.1 hereabove shall be applicable to the
trainee days accounting for such training.
4 TRAINING AIDS FOR BUYER'S 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 applicable). The detailed description of the
Airbus CBT shall be provided to the Buyer at the Training
Conference;
- one (1) set of training documentation on CD-ROM;
- one (1) CD-ROM of cockpit panels for training.
5 AIRMAN
The Seller shall provide to the Buyer: Airman system free of charge
for a period of three (3) years
Clause 16 - 10/18
APPENDIX B TO CLAUSE 16
APPENDIX "B" TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Standard Transition Courses)
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.
- CAPTAIN PREREQUISITES
- Fluency in English (able to write, read and communicate at an
adequately understandable level in English language)
- 1500 hours minimum flying experience as pilot
- 1000 hours experience on FAR/JAR 25 aircraft
- 200 hours experience as airline, corporate pilot or military
pilot
- Have flown transport type aircraft, as flying pilot, within the
last 12 months.
- FIRST OFFICER PREREQUISITES
- Fluency in English (able to write, read and communicate at an
adequately understandable level in English language)
- 500 hours minimum flying experience as pilot of fixed wing
aircraft
- 300 hours experience on FAR/JAR 25 aircraft
- 200 hours flying experience as airline, corporate pilot or
military pilot
- Have flown transport type aircraft, as flying pilot, within the
last 12 months.
For both CAPTAIN and FIRST OFFICER, if one or several of the above
criteria is not met, the trainee shall follow:
(i) an adapted course (example : if not fluent in English, an
adapted course with a translator) or,
(ii) For Ab Initio Pilots, an ELT (Entry Level Training) program or
equivalent before coming to the training center to follow the
regular or the adapted course.
Such course(s), if required, shall be at the Buyer's expense.
- CCQ ADDITIONAL PREREQUISITES
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.
Clause 16 - 11/18
APPENDIX B TO CLAUSE 16
- FLIGHT INSTRUCTORS ADDITIONAL PREREQUISITES FOR TRI COURSE (CAPTAIN
ONLY)
have flown at least 30 route sectors for initial TRI training, or 15
route sectors for the transition TRI training, within the twelve
(12) months preceding the application, on the corresponding aircraft
type or a similar type as agreed by the Aviation Authorities. Out of
such sectors, no more than 15 sectors for the initial TRI training
and 7 sectors for the transition TRI shall have been completed in a
flight simulator.
- PERFORMANCE AND OPERATIONS PERSONNEL PREREQUISITES
The Buyer's performance and operations personnel shall be fluent in
English.
All further detailed prerequisites shall be provided by the Seller
to the Buyer during the Training Conference, depending on the type
of training course(s) selected by the Buyer.
- MAINTENANCE PERSONNEL PREREQUISITES
- Fluency in English (understanding of English (written and spoken)
adequate to be able to follow the training (If this is not the
case, the Buyer shall assign a minimum of one (1) translator for
eight (8) trainees))
- Experience on first or second jet transport category aircraft
- Qualification as line or line and base mechanic on one type of
Airbus aircraft family (for Aircraft Rigging Course)
- Qualification as line or line and base mechanic on the concerned
Airbus aircraft type (for Maintenance Initial Operating
Experience Course)
- MAINTENANCE TRAINING DIFFERENCE COURSES ADDITIONAL PREREQUISITES
Be current and operating on the base aircraft
Clause 16 - 12/18
APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING
Clause 16 - 13/18
APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING (AIRBUS CBT)
1 DEFINITIONS
1.1 For the purpose of this Appendix C to Clause 16, the following
definitions shall apply:
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 Buyer's computers connected to each
other through cables and allowing the transmission of data and
instructions, which can be used by all of the Buyer's 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 Buyer's 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 Intranet,
allowing communication between the Buyer and certain defined
external entities.
1.1.11 "USER GUIDE" means the documentation, which may be in electronic
format, designed to assist the Buyer to use the Airbus CBT.
1.2 Capitalised terms used herein and not otherwise defined in this
Airbus CBT Licence shall have the meaning assigned thereto in the
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.
Clause 16 - 14/18
APPENDIX C TO CLAUSE 16
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
licence ("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 Buyer's 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 Buyer's personnel,
explicitly such copies shall be used by the Buyer's 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 Buyer's employees
shall agree to use such copy for training purposes only and to make
no additional copy. The 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 the Seller's 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.
Clause 16 - 15/18
APPENDIX C TO CLAUSE 16
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-transferable and
non-exclusive.
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;
- not transmit the Airbus CBT electronically by any means, nor use
the Airbus CBT on either the internet 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, 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;
- 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, to come and verify in the
Buyer's 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.
Clause 16 - 16/18
APPENDIX C TO CLAUSE 16
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:
(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 Buyer's Aircraft on behalf of the Buyer.
Such training shall be performed exclusively at the Buyer's
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 Seller's 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 Buyer's personnel, such disclosure is
permitted only for the purpose for which the Airbus CBT 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.
Clause 16 - 17/18
APPENDIX C TO CLAUSE 16
8.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS
SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN 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 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 SELLER'S 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.
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 8.2, "THE SELLER" SHALL INCLUDE THE
SELLER AND ITS AFFILIATES.
Clause 16 - 18/18
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 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 Buyer's 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 if necessary.
Clause 17 - 1/1
18 BUYER FURNISHED EQUIPMENT
18.1 ADMINISTRATION
18.1.1 Without additional charge, the Seller shall provide for the
installation 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 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 Aircraft and delivery of the 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 ("Regime
delentrepot industriel pour fabrication coordonnee" 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.
Shipping Addresses:
AIRBUS FRANCE S.A.S.
000 Xxxxx xx Xxxxxxx
00000 XXXXXXXX
XXXXXX
or
Clause 18 - Page 1/3
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 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 the 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 Aviation Authorities delivering the Export
Certificate of Airworthiness and by the Buyer's Aviation Authority
for installation and use on the Aircraft at the time of Delivery of
such Aircraft.
18.3 BUYER'S OBLIGATION AND SELLER'S 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
Aircraft to be adjusted in accordance with the updated delivery
schedule and to include in particular the amount of the Seller's
additional 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 Aircraft for adjustment and calibration; or
(ii) if the BFE shall be so delayed by more than thirty (30) days,
or unapproved within thirty (30) days deliver the 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 Aircraft so delivered.
Clause 18 - Page 2/3
18.4 TITLE AND RISK OF LOSS
Title to and risk of loss or risk of damage 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.
The Seller shall not use Buyer's BFE for any aircraft other than
Buyer's Aircraft without prior consent from the Buyer.
Clause 18 - Page 3/3
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 or wilful
misconduct 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,
its Affiliates and their respective insurers 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
Seller's 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 or wilful
misconduct of the Seller, its directors, officers, agents or
employees, be solely liable for and shall indemnify and hold
harmless the Seller, its Affiliates, its Suppliers and their
respective insurers 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 Buyer's 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.
19.2 INDEMNITIES RELATING TO TRAINING ON AIRCRAFT AFTER DELIVERY
19.2.1 The Buyer shall, except in the case of gross negligence or wilful
misconduct of the Seller, its directors, officers, agents and
employees, be solely liable for and shall indemnify and hold
harmless the Seller, its Affiliates, its Suppliers and their
respective insurers 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 of any person
(including any of the Buyer's 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 Seller's
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.
Clause 19 - Page 1/3
19.3 INDEMNITIES RELATING TO SELLER REPRESENTATIVES SERVICES
19.3.1 The Buyer shall, except in case of gross negligence or wilful
misconduct of the Seller, its directors, officers, agents or
employees, be solely liable for and shall indemnify and hold
harmless the Seller, its Affiliates, its Suppliers and their
respective insurers 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 Seller's Representatives) and for loss of or damage
to property and/or loss of use thereof howsoever arising out of or
in connection with the Seller's Representatives' Services.
19.3.2 The Seller shall, except in case of gross negligence or wilful
misconduct 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,
its Affiliates and their respective insurers from and against all
liabilities, claims, damages, costs and expenses (including legal
expenses and attorney fees) for all injuries to or death of the
Seller's Representatives in connection with the Seller's
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, its
Suppliers and their respective insurers to be named as additional
insureds under the Buyer's Comprehensive Aviation Legal Liability
insurance policies, including War Risks and Allied Perils, to the
extent of the Buyer's undertaking set forth in Clause 19.2.1. With
respect to the Buyer's Hull All Risks and Hull War Risks insurances
and Allied Perils, the Buyer shall cause the insurers of the Buyer's
hull insurance policies to waive all rights of subrogation against
the Seller, as defined in Clause 19.5 hereof, its Affiliates, its
Suppliers and their respective insurers to the extent of the Buyer's
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 (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 Buyer's insurance broker(s)
certifying that such policies have been endorsed as follows:
(i) under the Comprehensive Aviation Legal Liability Insurances,
the Buyer's 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, its Suppliers and their respective
insurers, have been waived to the extent of the Buyer's
undertaking and specifically referring to Clause 19.2.1 and to
this Clause 19.4.
Clause 19 - Page 2/3
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.
Clause 19 - Page 3/3
20 TERMINATION
20.1 TERMINATION FOR INSOLVENCY
In the event that either the Seller or the Buyer:
(a) makes a general assignment for the benefit of creditors or
becomes insolvent;
(b) files 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 sixty
(60) days; or
(f) is divested of a substantial part of its assets for a period
of at least sixty (60) days,
then the other party may, 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
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 thirty (30) business days after the date
of such notification.
If the Buyer has not cured such default within such period, the
Seller may, by written notice, terminate all or part of this
Agreement with respect to undelivered Aircraft.
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.
Clause 20 - Page 1/2
20.4 TERMINATION FOR DEFAULT UNDER OTHER AGREEMENTS
If the Buyer or any of its Affiliates fails to perform or comply
with any material obligation expressed to be assumed by it in any
other agreement between the Buyer or any of its Affiliates and the
Seller or any of its Affiliates and such failure is not remedied
within fifteen (15) business days after the Seller has given notice
thereof to the Buyer, then the Seller may, by written notice,
terminate all or part of this Agreement.
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 relevant
party of the notice of termination sent by the other party without
it being necessary for either party to take any further action or to
seek any consent from the other party or any court or arbitral panel
having jurisdiction.
20.5.2 The right for either party 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 such party to seek termination of all or part
of this Agreement before any court or arbitral panel having
jurisdiction pursuant to any failure by the other party to perform
its obligations under this Agreement.
20.5.3 If the party taking the initiative of terminating this Agreement
decides to terminate part of it only, the notice sent to the other
party 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 an amount equal to all predelivery payments, commitment fees,
option fees and any other monies paid by the Buyer to the Seller
under this Agreement and corresponding to the Aircraft, services,
data and other items covered by such termination.
Clause 20 - Page 2/2
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
The Seller may at any time sell, assign, novate or transfer its
rights and obligations under this Agreement to any person, provided
such sale, assignment or transfer be notified to Buyer and shall not
have a material adverse effect on any of Buyer's rights and
obligations under this Agreement.
21.2.1 TRANSFER OF RIGHTS AND OBLIGATIONS UPON RESTRUCTURING
In the event that the Seller is subject to a corporate 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. The
Buyer recognises that succession of the Successor to the Agreement
by operation of law, which is valid under the law pursuant to which
that succession occurs, shall be binding upon the Buyer.
Clause 21 - Page 1/1
22 MISCELLANEOUS PROVISIONS
22.1 DATA RETRIEVAL
The Buyer shall provide the Seller, as the Seller may reasonably
request, with all the necessary data as customarily compiled by the
Buyer and pertaining to the operation of the Aircraft to assist the
Seller in making efficient and coordinated survey of all
reliability, maintainability, operational and cost data with a view
to improving the safety, availability and operational costs of the
Aircraft.
22.2 NOTICES
All notices and requests required or authorized hereunder shall be
given in writing either by personal delivery to an authorized
representative of the party to whom the same is given or by
registered mail (return receipt requested), express mail (tracking
receipt requested) or by facsimile, to be confirmed by subsequent
registered mail, and the date upon which any such notice or request
is so personally delivered or if such notice or request is given by
registered mail, the date upon which it is received by the addressee
or, if given by facsimile, the date upon which it is sent with a
correct confirmation printout, provided that if such date of receipt
is not a business day notice shall be deemed to have been received
on the first following business day, shall be deemed to be the
effective date of such notice or request.
Xxxxxx's address for notices is:
AIRBUS
Attn. To V. P. Contracts
1 Rond-Point Xxxxxxx Xxxxxxxx
31707 Blagnac Cedex
France
Xxxxx's address for notices is:
CHINA EASTERN AVIATION
IMPORT & EXPORT CORPORATION
Attention: General Manager
0000 Xxxx Xxxx Xxxx
Xxxxxxx 000000
Xxxxxx'x Xxxxxxxx xx Xxxxx
Fax: 00.00.00.00.00.00
With a copy to:
CHINA EASTERN AIRLINES CORPORATION
Planning and Development Department
Attention: Director
0000 Xxxx Xxxx Xxxx
Xxxxxxx 000000
Xxxxxx'x Xxxxxxxx xx Xxxxx
Fax: 00.00.00.00.00.00
or such other address or such other person as the party receiving
the notice or
Clause 22 - Page 1/3
request may reasonably designate from time to time.
22.3 WAIVER
The failure of either party to enforce at any time any of the
provisions of this Agreement, or to exercise any right herein
provided, or to require at any time performance by the other party
of any of the provisions hereof, shall in no way be construed to be
a present or future waiver of such provisions nor in any way to
affect the validity of this Agreement or any part thereof or the
right of the other party thereafter to enforce each and every such
provision. The express waiver (whether made one (1) or several
times) by either party of any provision, condition or requirement of
this Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
22.4 LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of England.
Any dispute arising out of or in connection with this Agreement
shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by three (3)
arbitrators appointed in accordance with such rules. Arbitration
shall take place in Stockholm in the English language.
22.5 INTERNATIONAL SUPPLY CONTRACT
The Buyer and the Seller recognise that this Agreement is an
international supply contract which has been the subject of
discussion and negotiation, that all its terms and conditions are
fully understood by the parties, and that the Specification and
price of the Aircraft and the other mutual agreements of the parties
set forth herein were arrived at in consideration of, inter alia,
all the provisions hereof specifically including all waivers,
releases and renunciations by the Buyer set out herein.
The Buyer and the Seller hereby also agree that the United Nations
Convention on Contracts for the International Sale of Goods will not
apply to this transaction.
22.6 SEVERABILITY
In the event that any provision of this Agreement should for any
reason be held ineffective, the remainder of this Agreement shall
remain in full force and effect. To the extent permitted by
applicable law, each party hereto hereby waives any provision of law
which renders any provision of this Agreement prohibited or
unenforceable in any respect.
22.7 ALTERATIONS TO CONTRACT
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any
previous understandings, commitments or representations whatsoever
oral or written in respect thereto. This Agreement shall not be
varied except by an instrument in writing of date even herewith or
subsequent hereto executed by both parties or by their duly
authorised representatives.
22.8 LANGUAGE
All correspondence, documents and any other written matters in
connection with
Clause 22 - Page 2/3
this Agreement shall be in English.
This Agreement has been executed in three (3) original copies which
are in English, and may be executed in counterparts.
22.9 CONFIDENTIALITY
This Agreement including any Exhibits or other documents related
hereto shall be treated by both parties as confidential and shall
not be released in whole or in part to any third party except as may
be required by law, or to professional advisors for the purpose of
implementation hereof. In particular, each party agrees not to make
any press release concerning the whole or any part of the contents
and/or subject matter hereof or of any future addendum hereto
without the prior consent of the other party hereto.
IN WITNESS WHEREOF this Agreement was entered into the day and year first above
written.
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name : /s/ Xxx Xxxxxxx Name : /s/ Xxxx Xxxxxxxx
Title : Title : CEO
CHINA EASTERN AVIATION
IMPORT AND EXPORT CORPORATION
Name : /s/ Fan Erning
Title :
Clause 22 - Page 3/3
EXHIBIT A
EXHIBIT A
SPECIFICATION
The A330 Standard Specification is contained in a separate folder.
- Exhibit A -
Page 1/1
EXHIBIT B
EXHIBIT B
FORM OF
SPECIFICATION CHANGE NOTICE
- Exhibit B -
Page 1/1
AIRBUS INDUSTRIE
[LOGO] SPECIFICATION CHANGE NOTICE SCN Number
Issue
(SCN) Dated
Page 1 of 3
Title:
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change :
Operational Weight Empty Change... :
Allowable Payload Change.......... :
REMARKS / REFERENCES
Responds to RFC
SPECIFICATION CHANGED BY THIS SCN
THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE FOLLOWING SCN(S):
PRICE PER AIRCRAFT
US DOLLARS :
AT DELIVERY CONDITIONS :
This change will be effective on AIRCRAFT No. and subsequent.
Provided approval is received by
BUYER APPROVAL SELLER APPROVAL
By: By:
Date: Date:
AIRBUS INDUSTRIE
[LOGO] SPECIFICATION CHANGE NOTICE SCN Number
Issue
(SCN) Dated
Page 2 of 3
SPECIFICATION REPERCUSSION:
After contractual agreement with respect to weight, performance, delivery,
etc, the indicated part of the specification wording will read as follows:
AIRBUS INDUSTRIE
[LOGO] SPECIFICATION CHANGE NOTICE SCN Number
Issue
(SCN) Dated
Page 3 of 3
SCOPE OF CHANGE (FOR INFORMATION ONLY)
/ / /31-JAN-1996
EXHIBIT "C"
EXHIBIT "C"
* * *
EXHIBIT D
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of the A330 purchase agreement dated [ ] and made
between [Airline] and AIRBUS S.A.S., as amended (the "PURCHASE AGREEMENT"), the
acceptance tests relating to the A[ ] aircraft, Manufacturer's Serial Number:
[ ], Registration Marks; [ ] (the "AIRCRAFT"), have taken place at Blagnac or
Hamburg Works on the [] day of [ ].
In view of said tests having been carried out with satisfactory results,
[Airline] hereby approves the Aircraft as being in conformity with the
provisions of the Purchase Agreement.
Said acceptance does not impair the rights that may be derived from the
warranties relating to the Aircraft set forth in the Purchase Agreement.
Any right at law or otherwise to revoke this acceptance of the Aircraft is
hereby waived.
The [ ] day of [ ]
[Airline]
By:
Its:
Page 1/1
EXHIBIT E
BILL OF SALE
Know all men by these presents that Airbus S.A.S. (the "SELLER"), a "societe par
actions simplifiee" existing under French law and whose address is 1 rond-point
Xxxxxxx Xxxxxxxx, 31707 Blagnac Cedex, FRANCE, was, this [ ] 2004, the owner of
the title to the following airframe (the "AIRFRAME"), the engines as specified
(the "ENGINES") and all appliances, components, parts, instruments, accessories,
furnishings, modules and other equipment of any nature, excluding Buyer
Furnished Equipment ("BFE"), incorporated therein, installed thereon or attached
thereto on the date hereof (the "PARTS"):
AIRFRAME: ENGINES:
AIRBUS Model A3[ ] [EM's name] Model [ ]
MANUFACTURER'S ENGINE SERIAL NUMBERS:
SERIAL NUMBER:[ ] LH: [ ]
RH: [ ]
REGISTRATION MARKS: [ ]
The Airframe, Engines and Parts are hereafter together referred to as the
Aircraft (the "AIRCRAFT").
The Seller confirms that it did this [ ] day of[ ] sell, transfer and deliver
all of its above described rights, title and interest to the Aircraft to the
following company and to its successors and assigns forever, said Aircraft to be
the property thereof:
[Name of Xxxxx]
The Seller hereby warrants to the Buyer, its successors and assigns that it had
this day good and lawful right to sell, deliver and transfer title to the
Aircraft to the Buyer and that there was conveyed to the Buyer good, legal and
valid title to the Aircraft, free and clear of all liens, claims, charges,
encumbrances and rights of others and that the Seller will warrant and defend
such title forever against all claims and demands whatsoever.
This Bill of Sale shall be governed by and construed in accordance with the laws
of [same as PA].
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this_______ day of [ ]
AIRBUS S.A.S.
By:
Title:
Signature:
- Exhibit E -
Page 1/1
EXHIBIT F
EXHIBIT F
SERVICE LIFE POLICY
ITEMS OF PRIMARY STRUCTURE
Exhibit F - 1/4
EXHIBIT F
SELLER SERVICE LIFE POLICY
1 The Items covered by the Service Life Policy pursuant to Clause 12.2
are those Seller Items of primary and auxiliary structure described
hereunder.
2 WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT)
2.1 WING STRUCTURE
2.1.1 Spars
2.1.2 Ribs and stringers inside the wing box
2.1.3 Upper and lower wing skin panels of the wing box
2.2 FITTINGS
2.2.1 Support structure and attachment fittings for the flap structure
2.2.2 Support structure and attachment fitting for the engine pylons
2.2.3 Support structure and attachment fitting for the main landing gear
2.2.4 Support structure and attachment fitting for the center wing box
2.3 AUXILIARY SUPPORT STRUCTURE
2.3.1 For the slats:
2.3.1.1 Ribs supporting the track rollers on wing box structure
2.3.1.2 Ribs supporting the actuators on wing box structure
2.3.2 For the ailerons:
2.3.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.2.2 Actuator fittings on wing box rear spar or shroud box
2.3.3 For airbrakes, spoilers, lift dumpers:
2.3.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.3.2 Actuator fittings on wing box rear spar or shroud box
Exhibit F - 2/4
EXHIBIT F
2.4 PYLON
2.4.1 For the Pylon Main Structural Box
2.4.1.1 Spars
2.4.1.2 Ribs
2.4.1.3 Skin, doublers and stiffeners
2.4.1.4 Support structure and attachment fitting for engine supports
3 FUSELAGE
3.1 FUSELAGE STRUCTURE
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main and nose gear
wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward pressure
bulkheads to the frame supporting the rear attachment of horizontal
stabilizer
3.1.4 Window and windscreen attachment structure but excluding transparencies
3.1.5 Passenger and cargo doors internal structure
3.1.6 Xxxxx, excluding scuff plates, and upper beams surrounding passenger
and cargo door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams excluding floor
panels and seat rails
3.1.8 Keel beam structure
3.2 FITTINGS
3.2.1 Landing gear support structure and attachment fitting
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
3.2.3 Support structure and attachment fitting for the APU
Exhibit F - 3/4
EXHIBIT F
4 STABILIZERS
4.1 HORIZONTAL STABILIZER MAIN STRUCTURAL BOX
4.1.1 Spars
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Support structure and attachment fitting to fuselage and trim screw
actuator
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 VERTICAL STABILIZER MAIN STRUCTURAL BOX
4.2.1 Spars
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Support structure and attachment fitting to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5 EXCLUSIONS
Bearing and roller assemblies, bearing surfaces, bushings, fittings
other than those listed above, access and inspection doors, including
manhole doors, latching mechanisms, all system components, commercial
interior parts, insulation and related installation and connecting
devices are excluded from this Seller Service Life Policy.
Exhibit F - 4/4
EXHIBIT "G"
EXHIBIT "G"
TECHNICAL DATA INDEX
EXHIBIT G - 1/8
EXHIBIT "H"
EXHIBIT "H"
MATERIEL
SUPPLY AND SERVICES
Exhibit H - 1/21
EXHIBIT "H"
1 GENERAL
1.1 This Exhibit defines the terms and conditions for the materiel support
services offered by the Seller to the Buyer in the following areas:
- Initial provisioning of data and materiel
- Replenishment of materiel
- Lease of certain Seller Parts
1.1.1 Capitalized terms used herein and not otherwise defined in this Exhibit
"H" shall have the same meanings assigned thereto in the Agreement.
1.1.2 References made to Clauses or sub-Clauses shall refer to Clauses or
sub-Clauses of this Exhibit "H" unless otherwise specified.
1.2 SCOPE OF MATERIEL SUPPORT
Materiel is classified into the following categories (hereinafter
referred to as "MATERIEL"):
(i) Seller Parts (Seller's proprietary Materiel bearing an
official part number of the Seller or Materiel for which the
Seller has the exclusive sales rights);
(ii) Supplier Parts classified as Repairable Line Maintenance Parts
in accordance with SPEC 2000;
(iii) Supplier Parts classified as Expendable Line Maintenance Parts
in accordance with SPEC 2000;
(iv) Ground Support Equipment and Specific (To Type) Tools.
1.2.1 Certain Seller Parts listed in Appendix A of Clause 6 are available for
lease by the Seller to the Buyer.
1.2.2 The Materiel support to be provided hereunder by the Seller covers
items classified as Materiel in sub-Clauses 1.2 (i) thru (iv) both for
initial provisioning as described in Clause 2 ("INITIAL PROVISIONING")
and for replenishment as described in Clause 3.
Repairable Line Maintenance Parts as specified in sub-Clauses 1.2 (i)
and 1.2 (ii) above having less than fifty (50) flight-hours are
considered as new for invoicing purposes.
1.2.3 Propulsion Systems, nacelles, quick engine change kit and thrust
reverser accessories and parts, including associated parts, are not
covered under this Exhibit "H" and shall be subject to direct
agreements between the Buyer and the relevant Propulsion System
Manufacturer. The Seller shall use its reasonable efforts to assist the
Buyer in case of any difficulties with availability of Propulsion
Systems and associated spare parts.
1.2.4 During a period commencing on the date hereof and continuing for as
long as at least five (5) aircraft of (each of) the model(s) covered
under this Agreement are operated
Exhibit H - 2/21
EXHIBIT "H"
in commercial air transport service ("TERM"), the Seller shall maintain
or have maintained such stock of Seller Parts as is deemed reasonable
by the Seller and shall furnish at reasonable prices Seller Parts
adequate to meet the Buyer's needs for maintenance of the Aircraft.
The Seller shall use its reasonable efforts to obtain a similar service
from all Suppliers of parts which are originally installed on the
Aircraft and not manufactured by the Seller.
1.3 MATERIEL SUPPORT CENTRE AND CENTRAL STORE
1.3.1 The Seller has established its materiel support centre in HAMBURG,
FEDERAL REPUBLIC OF GERMANY ("MATERIEL SUPPORT CENTRE") and shall
maintain or cause to be maintained during the Term a central store of
Seller Parts.
1.3.2 The Materiel Support Centre is operated twenty-four (24) hours/day and
seven (7) days/week.
1.3.3 The Seller reserves the right to effect deliveries from distribution
centres other than Materiel Support Centre or from any designated
production or Suppliers' facilities.
For efficient and convenient deliveries, the Seller and its Affiliate
companies operate regional satellite stores.
1.4 AGREEMENTS OF THE BUYER
1.4.1 The Buyer agrees to purchase from the Seller the Seller Parts required
for the Buyer's own needs during the Term, provided that the provisions
of this Clause 1.4 shall not in any way prevent the Buyer from
resorting to the Seller Parts stocks of other operators using the same
Aircraft or from purchasing Seller Parts from said operators or from
distributors, provided said Seller Parts have been designed and
manufactured by the Seller.
1.4.2 The Buyer may manufacture or have manufactured for its own use without
paying any license fee to the Seller, or may purchase from other
sources, parts equivalent to Seller Parts:
1.4.2.1 after expiration of the Term if at such time the Seller Parts are out
of stock,
1.4.2.2 at any time, to the extent Seller Parts are needed to effect aircraft
on ground ("AOG") repairs upon any Aircraft delivered under the
Agreement and are not available from the Seller within a lead time
shorter than or equal to the time in which the Buyer can procure such
Seller Parts, and provided the Buyer shall not sell such Seller Parts,
1.4.2.3 in the event that the Seller fails to fulfil its obligations with
respect to any Seller Parts pursuant to Clause 1.2 within a reasonable
time after written notice thereof from the Buyer,
1.4.2.4 in those instances where a Seller Part is identified as "Local
Manufacture" in the Illustrated Parts Catalog (IPC).
1.4.3 The rights granted to the Buyer in Clause 1.4.2 shall not in any way be
construed as a license, nor shall they in any way obligate the Buyer to
the payment of any license fee
Exhibit H - 3/21
EXHIBIT "H"
or royalty, nor shall they in any way be construed to affect the rights
of third parties.
2 INITIAL PROVISIONING
2.1 INITIAL PROVISIONING PERIOD
The INITIAL PROVISIONING PERIOD is defined as the period up to and
expiring on the ninetieth (90th) day after delivery of the last
Aircraft subject to firm order under the Agreement.
2.2 PRE-PROVISIONING MEETING
2.2.1 The Seller shall organize a pre-provisioning meeting ("PRE-PROVISIONING
MEETING") at its Materiel Support Centre or at Buyer's site for the
purpose of formulating an acceptable schedule and working procedure to
accomplish the initial provisioning of Materiel.
2.2.2 The date of the meeting shall be mutually agreed upon, allowing a
minimum preparation time of eight (8) weeks for the Initial
Provisioning Conference referred to in Clause 2.4 below.
2.3 INITIAL PROVISIONING TRAINING
Upon the request of the Buyer, the Seller can provide Initial
Provisioning training for the Buyer's provisioning and purchasing
personnel. The following areas shall be covered:
(i) The Seller during the Pre-Provisioning Meeting shall
familiarize the Buyer with the provisioning documents.
(ii) The technical function as well as the necessary technical and
commercial Initial Provisioning Data shall be explained during
the Initial Provisioning Conference.
(iii) A familiarization with the Seller's purchase order
administration system shall be conducted during the Initial
Provisioning Conference.
2.4 INITIAL PROVISIONING CONFERENCE
The Seller shall organize an Initial Provisioning conference ("INITIAL
PROVISIONING CONFERENCE") at the Materiel Support Centre, including
participation of major Suppliers as agreed upon during the
Pre-Provisioning Meeting.
Such conference shall not take place earlier than eight (8) weeks after
Manufacturer Serial Number allocation, Buyer Furnished Equipment
selection or Customer Definition Freeze, whichever is the latest.
2.5 SELLER-SUPPLIED DATA
The Seller shall prepare and supply to the Buyer the following data.
2.5.1 INITIAL PROVISIONING DATA
Exhibit H - 4/21
EXHIBIT "H"
Initial Provisioning data elements generally in accordance with SPEC
2000, Chapter 1, ("INITIAL PROVISIONING DATA") shall be supplied by the
Seller to the Buyer in a form, format and a time-scale to be mutually
agreed upon during the Pre-Provisioning Meeting.
2.5.1.1 Revision service shall be provided every ninety (90) days, up to the
end of the Initial Provisioning Period.
2.5.1.2 In any event, the Seller shall ensure that Initial Provisioning Data is
released to the Buyer in due time to give the Buyer sufficient time to
perform any necessary evaluation and allow the on-time delivery of any
ordered Materiel.
2.5.2 SUPPLEMENTARY DATA
The Seller shall provide the Buyer with supplementary data to the
Initial Provisioning Data, including Local Manufacture Tables (X-File)
and Ground Support Equipment and Specific (To-Type) Tools (W-File) in
accordance with SPEC 2000, Chapter 1.
2.5.3 DATA FOR STANDARD HARDWARE
The Initial Provisioning Data provided to the Buyer shall include data
for hardware and standard materiel.
2.6 SUPPLIER-SUPPLIED DATA
2.6.1 GENERAL
The Seller shall obtain from Suppliers agreements to prepare and issue
for their own products as per Clause 1.2 (ii) repair/overhaul Initial
Provisioning Data in the English language, for those components for
which the Buyer has elected to receive data.
Said data (initial issue and revisions) shall be transmitted to the
Buyer through the Suppliers and/or the Seller. The Seller shall not be
responsible for the substance of such data.
In any event, the Seller shall exert its reasonable efforts to supply
such Data to the Buyer in due time to give the Buyer sufficient time to
perform any necessary evaluation and allow on-time deliveries.
2.6.2 INITIAL PROVISIONING DATA
Initial Provisioning Data elements for Supplier Parts as per sub-Clause
1.2 (ii) generally in accordance with SPEC 2000, Chapter 1, shall be
furnished as mutually agreed upon during a Pre-Provisioning Meeting
with revision service assured up to the end of the Initial Provisioning
period.
2.7 INITIAL PROVISIONING DATA COMPLIANCE
2.7.1 Initial Provisioning Data generated by the Seller and supplied to the
Buyer shall comply with the latest configuration of the Aircraft to
which such data relate as known three (3) months before the date of
issue. Said data shall enable the Buyer to order
Exhibit H - 5/21
EXHIBIT "H"
Materiel conforming to its Aircraft as required for maintenance and
overhaul.
This provision shall not cover:
- Buyer modifications not known to the Seller,
- modifications not agreed to by the Seller.
2.8 COMMERCIAL OFFER
2.8.1 At the end of the Initial Provisioning Conference, the Seller shall, at
the Buyer's request, submit a commercial offer for all Materiel as
defined in Clauses 1.2 (i) thru 1.2 (iv) mutually agreed as being
Initial Provisioning based on the Seller's sales prices valid at the
time of finalization of the Initial Provisioning Conference. This
commercial offer shall be valid for a period to be mutually agreed
upon, irrespective of any price changes for Seller Parts during this
period, except for significant error and/or price alterations due to
part number changes and/or Supplier price changes.
2.8.2 During the Initial Provisioning Period the Seller shall supply
Materiel, as defined in Clause 1.2 and ordered from the Seller, which
shall be in conformity with the configuration standard of the concerned
Aircraft and with the Initial Provisioning Data transmitted by the
Seller.
2.8.3 The Seller shall in addition use its reasonable efforts to cause
Suppliers to provide a similar service for their items.
2.9 DELIVERY OF INITIAL PROVISIONING MATERIEL
2.9.1 In order to support the operation of the Aircraft, the Seller shall use
its reasonable efforts to deliver Materiel ordered during the Initial
Provisioning Period against the Buyer's orders and according to a
mutually agreed schedule. Provided the Buyer's orders have been placed
within thirty (30) days after receipt of the Seller's provisioning data
and not later than six (6) months before delivery of the corresponding
Aircraft, one hundred percent (100%) of the ordered quantity of each
item, including line station items, shall be delivered three (3) months
after delivery of the last Aircraft. If said one hundred percent (100%)
cannot be accomplished, the Seller shall endeavor to have such items
available at its facilities for Seller Parts as per sub-Clause 1.2 (i)
or at its Suppliers' facilities for parts as per sub-Clauses 1.2 (ii)
thru 1.2 (iv) for immediate supply in case of an AOG.
2.9.2 The above agreed delivery schedule applies only to that portion of the
quantity ordered that is recommended for the number of Aircraft
operated during the twelve (12) months that follow first Aircraft
delivery.
2.9.3 The Buyer may, subject to the Seller's agreement, cancel or modify
Initial Provisioning orders placed with the Seller, with no
cancellation charge, not later than the quoted lead-time before
scheduled delivery of said Xxxxxxxx.
2.9.4 In the event of the Buyer canceling or modifying (without any liability
of the Seller for the cancellation or modification) any orders for
Materiel outside the time limits defined in Clause 2.9.3, the Buyer
shall reimburse the Seller for any costs incurred in connection
therewith.
2.9.5 All transportation costs for the return of Materiel under this Clause
2, including any
Exhibit H - 6/21
EXHIBIT "H"
insurance, customs and duties applicable or other related expenditures,
shall be borne by the Buyer.
2.10 INITIAL PROVISIONING DATA FOR EXERCISED OPTIONS
2.10.1 All Aircraft for which the Buyer exercises its option shall be included
into the revision of the provisioning data that is issued after
execution of the relevant amendment to the Agreement if such revision
is not scheduled to be issued within four (4) weeks from the date of
execution. If the execution date does not allow four (4) weeks
preparation time for the Seller, the concerned Aircraft shall be
included in the subsequent revision as may be mutually agreed upon.
2.10.2 The Seller shall, from the date of execution of the relevant amendment
to the Agreement until three (3) months after delivery of each
Aircraft, submit to the Buyer details of particular Supplier components
being installed on each Aircraft, with recommendations regarding order
quantity. A list of such components shall be supplied at the time of
the provisioning data revision as specified above.
2.10.3. The data concerning Materiel shall at the time of each Aircraft
delivery at least cover such Aircraft's technical configuration as it
existed six (6) months prior to Aircraft delivery and shall be updated
to reflect the final status of the concerned Aircraft once
manufactured. Such update shall be included in the data revisions
issued three (3) months after delivery of such Aircraft.
3 REPLENISHMENT AND DELIVERY
3.1 GENERAL
Buyer's purchase orders are administered in accordance with SPEC 2000,
Chapter 3.
For the purpose of clarification it is expressly stated that the
provisions of Clause 3.2 do not apply to Initial Provisioning Data and
Materiel as described in Clause 2.
3.2 LEAD TIMES
In general, lead times are in accordance with the provisions of the
"World Airlines and Suppliers' Guide" (Latest Edition).
3.2.1 Seller Parts as per sub-Clause 1.2 (i) listed in the Seller's Spare
Parts Price List can be dispatched within the lead times defined in the
Spare Parts Price List.
Lead times for Seller Parts, which are not published in the Seller's
Spare Parts Price List, are quoted upon request.
3.2.2 Materiel of sub-Clauses 1.2 (ii) thru 1.2 (iv) can be dispatched within
the Supplier's lead-time augmented by the Seller's own order and
delivery processing time.
3.2.3 EXPEDITE SERVICE
The Seller shall provide a twenty-four (24) hours-a-day, seven (7)
days-a-week expedite service to provide for the supply of the relevant
Seller Parts available in the
Exhibit H - 7/21
EXHIBIT "H"
Seller's stock, workshops and assembly line including long lead time
spare parts, to the international airport nearest to the location of
such part ("EXPEDITE SERVICE").
3.2.3.1 The Expedite Service is operated in accordance with the "World
Airlines and Suppliers' Guide", and the Seller shall notify the
Buyer of the action taken to satisfy the expedite within:
- four (4) hours after receipt of an AOG Order,
- twenty-four (24) hours after receipt of a Critical Order
(imminent AOG or work stoppage),
- seven (7) days after receipt of an Expedite Order from the
Buyer.
3.2.3.2 The Seller shall deliver Seller Parts requested on an Expedite basis
against normal orders placed by the Buyer, or upon telephone or
telex requests by the Buyer's representatives. Such telephone or
telex requests shall be confirmed by subsequent Buyer's orders for
such Seller Parts within a reasonable time.
3.3 DELIVERY STATUS
The Seller shall report to the Buyer the status of supplies against
orders on a monthly basis.
3.4 EXCUSABLE DELAY
Clause 10.1 of the Agreement shall apply to the Materiel support.
3.5 SHORTAGES, OVERSHIPMENTS, NON-CONFORMITY IN ORDERS
3.5.1 The Buyer shall immediately and not later than thirty (30) days
after receipt of Xxxxxxxx delivered pursuant to a purchase order
advise the Seller:
a) of any alleged shortages or overshipments with respect to such
order,
b) of all non-conformities to specification of parts in such
order subjected to inspections by the Buyer.
In the event of the Buyer not having advised the Seller of any such
alleged shortages, overshipments or non-conformity within the above
defined period, the Buyer shall be deemed to have accepted the
deliveries.
3.5.2 In the event of the Buyer reporting overshipments or non-conformity
to the specifications within the period defined in Clause 3.5.1
the Seller shall, if the Seller accepts such overshipment or
non-conformity, either replace the concerned Materiel or credit the
Buyer for the returned Materiel. In such case, transportation costs
shall be borne by the Seller.
The Buyer shall endeavor to minimize such costs, particularly
through the use of its own airfreight system for transportation at
no charge to the Seller.
3.6 PACKAGING
Exhibit H - 8/21
EXHIBIT "H"
All Materiel shall be packaged in accordance with ATA 300.
Specification, Category III for consumable/expendable materiel and
Category II for rotables. Category I containers shall be used if
requested by the Buyer and the difference between Category I and
Category II packaging costs shall be paid by the Buyer together with
payment for the respective Materiel.
3.7 CESSATION OF DELIVERIES
The Seller reserves the right to stop or otherwise suspend
deliveries if the Buyer fails to meet its obligations defined in
Clauses 4.2 thru 4.4.
4 COMMERCIAL CONDITIONS
4.1. PRICE
4.1.1 The Materiel prices shall be:
- Free Carrier (FCA) the Materiel Support Centre for deliveries
from the Materiel Support Centre.
- Free Carrier (FCA) place specified by the Seller for
deliveries from other Seller or Supplier facilities as the
term Free Carrier (FCA) is defined by the publication
No. 560 of the International Chamber of Commerce published in
January 2000.
4.1.2 Prices shall be the Seller's sales prices in effect on the date of
receipt of the order (subject to reasonable quantities and delivery
time) and shall be expressed in US-Dollars.
4.1.3 Prices of Seller Parts shall be in accordance with the current
Seller's Spare Parts Price List. Prices shall be firm for each
calendar year. The Seller, however, reserves the right to revise the
prices of said parts during the course of the calendar year in the
following cases:
- significant revision in manufacturing costs,
- significant revision in manufacturer's purchase price of parts
or materiels (including significant variation of exchange
rates),
- significant error in estimation or expression of any price.
4.1.4 Prices of Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2 (iv)
shall be the valid list prices of the Supplier augmented by the
Seller's handling charge. The percentage of the handling charge
shall vary with the Materiel's value and shall be determined item by
item.
4.1.5 The Seller warrants that, should the Buyer purchase one hundred
percent (100%) of the recommended Initial Provisioning package of
the Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2 (iv)
through the Seller, the average handling charge on the total package
shall not exceed twelve percent (12%).
The Seller warrants that, should the Buyer purchase part of the
recommended Initial
Exhibit H - 9/21
EXHIBIT "H"
Provisioning package of the Materiel as defined in sub-Clauses 1.2
(ii) thru 1.2 (iv) through the Seller, the average handling charge
on the total package shall not exceed fifteen percent (15%).
This average handling charge shall apply when all orders are
received by the Seller no later than nine (9) months before first
Aircraft delivery.
4.2 PAYMENT PROCEDURES AND CONDITIONS
4.2.1 Payment shall be made in immediately available funds in the quoted
currency. In case of payment in any other free convertible currency,
the exchange rate valid on the day of actual money transfer shall be
applied for conversion.
4.2.2 Payment shall be made by the Buyer to the Seller within thirty (30)
days from date of the invoice to the effect that the value date of
the credit to the Seller's account of the payment falls within this
thirty (30) day period.
4.2.3 The Buyer shall make all payments hereunder to the Seller's account
with:
VEREINS & WESTBANK AG - 20457 Hamburg - Germany
Account: 910 057 777
Swift Address: VUWB DE HH,
using international IBAN Code: XX00 000 000 000 000 000 000
or as otherwise directed by the Seller.
4.2.4 All payments due to the Seller hereunder shall be made in full
without set-off, counterclaim, deduction or withholding of any kind.
Consequently, the Buyer shall procure that the sums received by the
Seller under this Exhibit "H" 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 except that 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 equal the amounts which would have been received
in the absence of such deduction or withholding.
4.2.5 If any payment due to the Seller is not received in accordance with
the timescale provided in Clause 4.2.2, without prejudice to the
Seller's other rights under this Exhibit "H", the Seller shall be
entitled to interest for late payment calculated on the amount due
from and including the due date of payment up to and including the
date when the payment is received by the Seller at a rate equal to
the London Interbank Offered Rate (LIBOR) for twelve (12) months
deposits in US Dollars (as published in the Financial Times on the
due date) plus three percent (3%) per year (part year to be
prorated).
4.3 CREDIT ASSURANCE
The Seller and the Buyer agree that the Seller has the right to
request and the Buyer shall upon such request provide the Seller
with sufficient financial means in due time in order to assure the
Seller of full payment of the Buyers' current and/or expected
Exhibit H - 10/21
EXHIBIT "H"
payment obligations.
4.3.1 The Seller's right to request credit assurance from the Buyer shall
be limited to the following cases:
4.3.1.1 The Seller has received purchase orders from the Buyer for Initial
Provisioning Materiel.
4.3.1.2 The Seller has received purchase and/or service orders exceeding the
Buyer's average two (2) month turnover with the Seller.
4.3.1.3 The Buyer is indebted to the Seller for overdue invoices.
4.3.2 The Seller shall accept the following financial means as credit
assurance:
4.3.2.1 Irrevocable and confirmed letter of credit, raised by banks of
international standing and reputation. The conditions of such
letter of credit shall be pertinent to Aircraft support activities
and shall be set forth by the Seller.
4.3.2.2 Bank guarantee raised by banks of international standing and
reputation. The conditions of such bank guarantee shall be mutually
agreed upon prior to acceptance by the Seller.
4.3.2.3 Stand-by letter of credit raised by banks of international standing
and reputation. The conditions of such letter of credit shall be
mutually agreed upon prior to acceptance by the Seller.
4.4 TITLE
Title to any Materiel purchased under this Exhibit "H" remains with
the Seller until full payment of the invoices and any interest
thereon has been received by the Seller.
The Buyer shall undertake that Materiel, title to which has not
passed to the Buyer, shall be kept free from any debenture or
mortgage or any similar charge or claim in favor of any third party.
4.5 BUY-BACK
4.5.1 BUY-BACK OF OBSOLETE MATERIEL
The Seller agrees to buy back unused Seller Parts which may become
obsolete before delivery of the first Aircraft to the Buyer as a
result of mandatory modifications required by the Buyer's or the
Seller's Aviation Authorities, subject to the following:
4.5.1.1 The Seller Parts involved shall be those, which the Buyer is
directed by the Seller to scrap or dispose of and which cannot be
reworked or repaired to satisfy the revised standard.
4.5.1.2 The Seller shall credit to the Buyer the purchase price paid by the
Buyer for any such obsolete parts, provided that the Seller's
liability in this respect does not extend to quantities in excess of
the Seller's Initial Provisioning recommendation.
Exhibit H - 11/21
EXHIBIT "H"
4.5.1.3 The Seller shall use its reasonable efforts to obtain for the Buyer
the same protection from Suppliers.
4.5.2 BUY-BACK OF SURPLUS MATERIEL
4.5.2.1 The Seller agrees that at any time after one (1) year and within
four (4) years after delivery of the first Aircraft to the Buyer,
the Buyer shall have the right to return to the Seller, at a credit
of one hundred percent (100%) of the original purchase price paid
by the Buyer, unused and undamaged Materiel as per sub-Clause 1.2
(i) and at a credit of one hundred percent (100%) of the original
Supplier list price, unused and undamaged Materiel as per sub-Clause
1.2 (ii) originally purchased from the Seller under the terms
hereof, provided that the selected protection level does not exceed
ninety-six percent (96%) with a transit time of twenty (20) days
and said Xxxxxxxx was recommended for the Buyer's purchase in the
Seller's Initial Provisioning recommendations to the Buyer and does
not exceed the provisioning quantities recommended by the Seller,
and is not shelflife limited, or does not contain any shelflife
limited components with less than ninety percent (90%) shelflife
remaining when returned to the Seller and provided that the Materiel
is returned with the Seller's original documentation (tag,
certificates).
4.5.2.2 In the event of the Buyer electing to procure Materiel in excess of
the Seller's recommendation, the Buyer shall notify the Seller
thereof in writing, with due reference to the present Clause. The
Seller's agreement in writing is necessary before any Materiel in
excess of the Seller's recommendation shall be considered for
buy-back.
4.5.2.3 It is expressly understood and agreed that the rights granted to the
Buyer under this Clause 4.5.2 shall not apply to Materiel which may
become surplus to requirements due to obsolescence at any time or
for any reason other than those set forth in Clause 4.5.1 above.
4.5.2.4 Further, it is expressly understood and agreed that all credits
described in this Clause 4.5.2 shall be provided by the Seller to
the Buyer exclusively by means of credit notes to be entered into
the Buyer's spares account with the Seller.
4.5.3 All transportation costs for the return of obsolete or surplus
Materiel under this Clause 4, including any insurance and customs
duties applicable or other related expenditures, shall be borne by
the Buyer.
4.5.4 The Seller's obligation to buy back surplus Materiel is conditioned
upon the Buyer reasonably demonstrating that items proposed for
buy-back were in excess of the Buyer's requirements after the
initial purchase of such items.
4.5.4.1 The Seller shall accept as a reasonable demonstration of such excess
initial purchase by the Buyer if the data submitted to the Seller in
compliance with the provisions of Clause 4.6 indicate that the items
proposed for buy-back are surplus to the Buyer's requirements.
4.6 INVENTORY USAGE DATA
The Buyer undertakes to provide periodically to the Seller a
quantitative list of the parts used for maintenance and overhaul of
the Aircraft. The range and contents of
Exhibit H - 12/21
EXHIBIT "H"
this list shall be established according to SPEC 2000, Chapter 5, or
as mutually agreed between the Seller and the Buyer.
5. WARRANTIES
5.1 SELLER PARTS
Subject to the limitations and conditions as hereinafter provided,
the Seller warrants to the Buyer that all Seller Parts in sub-Clause
1.2 (i) 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 arising from failure to conform to the
applicable specification for such part.
5.2 WARRANTY PERIOD
5.2.1 The standard warranty period for new Seller Parts is thirty-six (36)
months after delivery of such parts to the Buyer.
5.2.2 The standard warranty period for used Seller Parts delivered by
and/or repaired, modified, overhauled or exchanged by the Seller is
twelve (12) months after delivery of such parts to the Buyer.
5.3 BUYER'S REMEDY AND SELLER'S OBLIGATION
The Buyer's remedy and Seller's obligation and liability under this
Clause 5 are limited to the repair, replacement or correction, at
the Seller's expense and option, of any Seller Part which is
defective.
The Seller may equally at its option furnish a credit to the Buyer
for the future purchase of Seller Parts equal to the price at which
the Buyer is then entitled to acquire a replacement for the
defective Seller Parts.
The provisions of Clauses 12.1.5 thru 12.1.10 of the Agreement shall
apply to this Clause 5 of this Exhibit "H".
5.4 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR AND/OR ITS
SUPPLIERS AND REMEDIES OF THE LESSEE SET FORTH IN THIS CLAUSE 5 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LESSEE HEREBY WAIVES,
RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE LESSOR 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
Exhibit H - 13/21
EXHIBIT "H"
LEASED PART DELIVERED UNDER THESE LEASING CONDITIONS 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
LESSOR'S 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 LEASED PART DELIVERED HEREUNDER.
THE LESSOR 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 LEASED PART DELIVERED
UNDER THESE LEASING CONDITIONS.
FOR THE PURPOSES OF THIS CLAUSE 5.4, "THE SELLER" SHALL INCLUDE THE
SELLER, AND ITS AFFILIATES.
6 SELLER PARTS LEASING
6.1 GENERAL
The terms and conditions of this Clause 6 shall apply for the
leasing of Seller Parts listed in Appendix A to this Clause 6,
hereinafter "LEASED PARTS" or a "LEASED PART", and shall form a part
of each lease of Seller Parts by the Buyer from the Seller.
6.1.1 The terms and conditions of this Clause 6 shall prevail over all
other terms and conditions appearing on any order form or other
document pertaining to Leased Parts. The Seller's current
proprietary parts Repair Guide shall be provided to the Buyer and
shall be used, along with this Agreement, as the basis for Seller
Parts lease transactions between the Buyer and the Seller. In case
of discrepancy, this Agreement shall prevail.
6.1.2 For the purposes of this Clause 6, the term "LESSOR" refers to the
Seller and the term "LESSEE" refers to the Buyer.
6.1.3 Parts not included in Appendix A to this Clause 6 shall be the
subject of a separate lease agreement supplied by the Seller at the
Buyer's request.
6.2 LEASING PROCEDURE
Upon the Lessee's request by telephone (to be confirmed promptly in
writing), telefax, cable, SITA, letter or other written instrument,
the Lessor shall lease such Leased Parts, which shall be made
available in accordance with Clause 3.2.3 for the purpose
Exhibit H - 14/21
EXHIBIT "H"
of being substituted for a part removed from an Aircraft for repair
or overhaul. Each lease of Leased Parts shall be evidenced by a
lease document (hereinafter "LEASE") issued by the Lessor to the
Lessee not later than seven (7) days after delivery of the Leased
Part.
6.3 LEASE PERIOD
6.3.1 The total term of the Lease (hereinafter "LEASE PERIOD") shall be
counted from inclusively the day the Leased Part is delivered Free
Carrier (FCA) up to inclusively the day of receipt of the Leased
Part back at the Lessor or at any other address indicated by the
Lessor.
6.3.2 If a Leased Part is not returned by the Lessee within three hundred
and ten (310) days, the Lease shall be converted into a sale. Should
the Lessee not return the Leased Part to the Lessor within three
hundred and ten (310) days and if the Lessor so elects, by giving
prompt written notice to the Lessee, such non return shall be deemed
to be an election by the Lessee to purchase the Leased Part and,
upon the happening of such event, the Lessee shall pay the Lessor
all amounts due under Clauses 6.4 and 6.8 for the Leased Part for
the Lease Period of three hundred and ten (310) days plus the
current sales price of the Leased Part at the moment of the
conversion of the Lease.
6.3.3 Notwithstanding the foregoing, the Lease Period shall end in the
event of, and upon the date that, the Lessee acquiring title to a
Leased Part as a result of exercise of the Lessee's option to
purchase the Leased Part, as provided for herein.
6.3.4 The chargeable period to lease a part is a minimum of seven (7)
days. If the shipment of the Leased Part has been arranged and the
Lessee cancels the lease order, the minimum chargeable period of
seven (7) days shall apply.
6.4 LEASE CHARGES AND TAXES
The Lessee shall pay the Lessor:
(i) a Lease fee per day of the Lease Period amounting to one three
hundred and sixty fifth (1/365th) of the part's sales price
as set forth in the Seller's Spare Parts Price List in effect
on the date of the commencement of the Lease Period;
(ii) any reasonable additional costs which may be incurred by the
Lessor as a direct result of such Lease, such as
recertification, inspection, test, repair, overhaul, removal
of paint and/or repackaging costs as required to place the
Leased Part in a satisfactory condition for lease to a
subsequent customer;
(iii) all transportation and insurance charges; and
(iv) any taxes, charges or custom duties imposed upon the Lessor or
its property as a result of the Lease, sale, delivery, storage
or transfer of any Leased Part. All payments due hereunder
shall be made in accordance with Clause 4.
6.5 RISK OF LOSS, MAINTENANCE, STORING AND REPAIR OF THE LEASED PART
(i) The Lessee shall be liable for maintaining and storing the
Leased Part in accordance with all applicable rules of the
relevant aviation authorities and the
Exhibit H - 15/21
EXHIBIT "H"
technical documentation and other instructions issued by the Lessor.
(ii) Except for normal wear and tear, each Leased Part shall be returned
to the Lessor in the same condition as when delivered to the Lessee.
(iii) The Leased Part shall be repaired solely at repair stations approved
by the Lessor. If during the Lease Period any inspection,
maintenance, rework and/or repair is carried out to maintain the
Leased Part serviceable, in accordance with the standards of the
Lessor, the Lessee shall provide details and documentation about the
scope of the work performed, including respective inspection, work
and test reports.
(iv) All documentation shall include, but not be limited to, evidence of
incidents such as hard landings, abnormalities of operation and
corrective action taken by the Lessee as a result of such incidents.
(v) The Leased Part must not be lent to a third party.
(vi) Risk of loss or damage to each Leased Part shall remain with the
Lessee until such Leased Part is redelivered to the Lessor at the
return location specified in the applicable Lease. If a Leased Part
is lost, damaged beyond economical repair or damaged unrepairable,
the Lessee shall be deemed to have exercised its option to purchase
said Leased Part in accordance with Clause 6.8 as of the date of
such loss or damage.
6.6 TITLE
Title to each Leased Part shall remain with the Lessor at all times unless
the Lessee exercises its option to purchase in accordance with Clause 6.8,
in which case title shall pass to the Lessee upon receipt by the Lessor of
the payment for the purchased Leased Part.
6.7 RETURN OF LEASED PART
6.7.1 The Lessee shall return the Leased Part at the end of the Lease Period to
the address indicated herebelow:
AIRBUS
Materiel Support Centre
Weg beim Xxxxxx 150
22335 Hamburg
Germany
or any other address indicated by the Lessor from which the Leased Part
originated.
6.7.2 The return shipping document shall indicate the reference of the Lease
document and the removal data, such as:
(i) aircraft manufacturer serial number
(ii) removal date
(iii) total flight hours and flight cycles for the period the Leased Part
was installed on
Exhibit H - 16/21
EXHIBIT "H"
the aircraft
(iv) documentation in accordance with Clause 6.5.
If the Lessee cannot provide the above mentioned data and documentation
for the Leased Part to be returned from Lease, lease charges of seventy
five percent (75%) of the Lessor's current sales price for a new part plus
fifty percent (50%) of the accumulated Lease fees shall be invoiced.
According to the Lessor's quality standards, parts are not serviceable
without the maintenance history data outlined above and have to be
scrapped on site.
6.7.3 The unserviceable or serviceable tag issued by the Lessee and the original
Lessor certification documents must be attached to the Leased Part.
6.7.4 Except for normal wear and tear, each Leased Part shall be returned to the
Lessor in the same condition as when delivered to the Lessee. The Leased
Part shall be returned with the same painting as when delivered (Airbus
grey or primary paint). If the Lessee is not in a position to return the
Leased Part in the same serviceable condition, the Lessee has to contact
the Lessor for instructions.
6.7.5 The Leased Part is to be returned in the same shipping container as that
delivered by the Lessor. The container must be in a serviceable condition,
normal wear and tear excepted.
6.7.6 The return of an equivalent part different from the Leased Part delivered
by the Lessor is not allowed without previous written agreement of the
Lessor.
6.8 OPTION TO PURCHASE
6.8.1 The Lessee may at its option, exercisable by written notice given to the
Lessor during the Lease Period, elect to purchase the Leased Part, in
which case the then current sales price for such Leased Part as set forth
in the Seller's Spare Parts Price List shall be paid by the Lessee to the
Lessor. Should the Lessee exercise such option, fifty percent (50%) of the
Lease rental charges due pursuant to sub-Clause 6.4 (i) shall be credited
to the Lessee against said purchase price of the Leased Part.
6.8.2 In the event of purchase, the Leased Part shall be warranted in accordance
with Clause 5 as though such Leased Part were a Seller Part, but the
warranty period shall be deemed to have commenced on the date such part
was first installed on any Aircraft; provided, however, that in no event
shall such warranty period be less than six (6) months from the date of
purchase of such Leased Part. A warranty granted under this Clause 6.8.2
shall be in substitution for the warranty granted under Clause 6.9 at the
commencement of the Lease Period.
6.9 WARRANTIES
6.9.1 The Lessor warrants that each Leased Part shall at the time of delivery be
free from defects in material and workmanship which could materially
impair the utility of the Leased Part.
6.9.2 XXXXXXXX AND NOTICE PERIODS
The Lessee's remedy and the Lessor's obligation and liability under this
Clause 6.9,
Exhibit H - 17/21
EXHIBIT "H"
with respect to each defect, are conditioned upon:
(i) the defect having become apparent to the Lessee within the Lease
Period and
(ii) the return by the Lessee as soon as practicable to the return
location specified in the applicable Lease, or such other place
as may be mutually agreed upon, of the Leased Part claimed to be
defective and
(iii) the Lessor's warranty administrator having received written
notice of the defect from the Lessee within thirty (30) days
after the defect becomes apparent to the Lessee, with reasonable
proof that the claimed defect is due to a matter embraced within
the Lessor's warranty under this Clause 6.9 and that such defect
did not result from any act or omission of the Lessee, including
but not limited to any failure to operate or maintain the Leased
Part claimed to be defective or the Aircraft in which it was
installed in accordance with applicable governmental regulations
and the Lessor's applicable written instructions.
6.9.3 REMEDIES
The Lessee's remedy and the Lessor's obligation and liability under this
Clause 6.9 with respect to each defect are limited to the repair of such
defect in the Leased Part in which the defect appears, or, as mutually
agreed, to the replacement of such Leased Part with a similar part free
from defect.
Any replacement part furnished under this Clause 6.9.3 shall be deemed
to be the Leased Part so replaced.
6.9.4 SUSPENSION AND TRANSPORTATION COSTS
6.9.4.1 If a Leased Part is found to be defective and covered by this
warranty, the Lease Period and the Lessee's obligation to pay rental
charges as provided for in sub-Clause 6.4 (i) shall be suspended from
the date on which the Lessee notifies the Lessor of such defect until
the date upon which the Lessor has repaired, corrected or replaced the
defective Leased Part, provided, however, that the Lessee has, promptly
after giving such notice to the Lessor, withdrawn such defective Leased
Part from use. If the defective Leased Part is replaced, such replaced
part shall be deemed to no longer be a Leased Part under the Lease as of
the date upon which such part was received by the Lessor at the return
location specified in the applicable Lease.
If a Leased Part is found to be defective upon first use by the Lessee
and is covered by this warranty, no rental charges as provided in
sub-Clause 6.4 (i) shall accrue and be payable by the Lessee until the
date on which the Lessor has repaired, corrected or replaced the
defective Leased Part.
6.9.4.2 All transportation and insurance costs of returning the defective Leased
Part and returning the repaired, corrected or replacement part to the
Lessee shall be borne by the Lessor.
6.9.5 WEAR AND TEAR
Exhibit H - 18/21
EXHIBIT "H"
Normal wear and tear and the need for regular maintenance and overhaul
shall not constitute a defect or non-conformance under this Clause 6.9.
6.9.6 XXXXXX, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR AND/OR ITS
SUPPLIERS AND REMEDIES OF THE LESSEE SET FORTH IN THIS CLAUSE 6 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LESSEE HEREBY WAIVES, RELEASES
AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE
LESSOR 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 LEASED
PART DELIVERED UNDER THESE LEASING CONDITIONS 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
LESSOR'S 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 LEASED PART DELIVERED HEREUNDER.
THE LESSOR 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 LEASED PART DELIVERED UNDER THESE LEASING
CONDITIONS.
FOR THE PURPOSES OF THIS CLAUSE 6.9.6, "THE SELLER" SHALL INCLUDE THE
SELLER, AND ITS AFFILIATES.
Exhibit H - 19/21
EXHIBIT "H"
APPENDIX "A" TO CLAUSE 6 OF EXHIBIT "H"
SELLER PARTS AVAILABLE FOR LEASING
AILERONS
APU DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
SLATS
SPOILERS
AIRBRAKES
WING TIPS
WINGLETS
Exhibit H - 20/21
EXHIBIT "H"
7 TERMINATION OF SPARES PROCUREMENT COMMITMENTS
7.1 In the event of the Agreement being terminated with respect to any
Aircraft due to causes provided for in Clauses 10,11 or 20 of the
Agreement, such termination may also affect the terms of this Exhibit "H"
to the extent set forth in Clause 7.2 below.
7.2 Any termination under Clauses 10, 11 or 20 of the Agreement shall
discharge all obligations and liabilities of the parties hereunder with
respect to such undelivered spare parts, services, data or other items to
be purchased hereunder which are applicable to those Aircraft for which
the Agreement has been terminated. Unused spare parts in excess of the
Buyer's requirements due to such Aircraft cancellation shall be
repurchased by the Seller as provided for in Clause 4.5.2.
Exhibit H - 21/21
LETTER AGREEMENT NO 1
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 1 Page 1/4
LETTER AGREEMENT NO 1
1 ***
2 ***
3 ***
4 ***
5 ***
LA 1 Page 2/4
LETTER AGREEMENT NO 1
6 ***
LA 1 Page 3/4
LETTER AGREEMENT NO 1
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 1 Page 4/4
LETTER AGREEMENT NO 2
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 2 Page 1/5
LETTER AGREEMENT NO 2
1 ***
LA 2 Page 2/5
LETTER AGREEMENT NO 2
2 ***
3 ***
LA 2 Page 3/5
LETTER AGREEMENT NO 2
***
LA 2 Page 4/5
LETTER AGREEMENT NO 2
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 2 Page 5/5
LETTER AGREEMENT NO 3
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 3 Page 1/4
LETTER AGREEMENT NO 3
1 ***
2 ***
3 ***
LA 3 Page 2/4
LETTER AGREEMENT NO 3
4 ***
4.1 ***
4.2 ***
LA 3 Page 3/4
LETTER AGREEMENT NO 3
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 3 Page 4/4
LETTER AGREEMENT NO 4
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
***
LA 4 Page 1/5
LETTER AGREEMENT NO 4
APPENDIX A
1. GENERAL TERMS AND CONDITIONS
1.1 ***
1.2 ***
1.3 ***
LA 4 Page 3/5
LETTER AGREEMENT NO 4
1.4 ***
1.5 ***
1.6 ***
1.7 ***
LA 4 Page 4/5
LETTER AGREEMENT NO 4
1.8 ***
2. FURTHER TERMS AND CONDITIONS
2.1 ***
2.2 ***
LA 4 Page 5/5
LETTER AGREEMENT NO 4
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 4 Page 2/5
LETTER AGREEMENT NO 5
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 5 Page 1/3
LETTER AGREEMENT NO 5
***
LA 5 Page 2/3
LETTER AGREEMENT NO 5
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 5 Page 3/3
LETTER AGREEMENT NO 6A
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
SUBJECT: A330 PERFORMANCE GUARANTEES GE
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 6A GE Page 1/6
LETTER AGREEMENT NO 6A
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the guarantees") are applicable to the
A330-300 Aircraft as described in the Technical Specification Ref.
G.000.03000 issue 7 Revision 1, dated 15th December 2003, as amended by a
Specification Change Notices ("SCN's") for:
i) implementation of GENERAL ELECTRIC CF6-80E1A3 engines
ii) increase of Design Weight to:
Maximum Take-off Weight ***
Maximum Landing Weight ***
Maximum Zero Fuel Weight ***
without taking into account any further changes thereto as provided in the
Agreement.
2. GUARANTEED PERFORMANCE
2.1. TAKE-OFF
JAR take-off field length at an Aircraft gross weight of *** at the start
of ground run at sea level pressure altitude in *** conditions shall be not
more than a guaranteed value of: ***
2.2. SECOND SEGMENT CLIMB
The Aircraft shall meet JAR regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of ground run at the altitude and temperature
and in the configuration of flap angle and safety speed required to comply
with the performance guaranteed in paragraph 2.1.
2.3. LANDING FIELD LENGTH
JAR certified dry landing field length at an Aircraft gross weight of ***
at sea level pressure altitude shall be not more than a guaranteed value
of: ***
2.4. EN-ROUTE ONE ENGINE INOPERATIVE CLIMB CAPABILITY
The Aircraft shall meet JAR regulations minimum en-route climb gradient
(1.1%), with one engine inoperative and the other one operating at maximum
continuous thrust available at that altitude with air conditioning on, with
anti-icing off, at an Aircraft gross weight of *** in cruise configuration,
in ISA conditions at a pressure altitude of a guaranteed value of not less
than: ***
3. MISSION GUARANTEE
The Aircraft shall be capable of carrying a fixed Zero Fuel Weight of ***
over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
3.1. The departure airport conditions are such as to allow the required take-off
weight to be used without any restriction.
The destination airport conditions are such to allow the required landing
weight to be used without any restriction.
LA 6A GE Page 2/6
LETTER AGREEMENT NO 6A
3.2 An allowance of *** of fuel is included for engine start and taxi out
3.3 An allowance of *** of fuel is included for take-off and climb to *** above
the departure airport with acceleration to climb speed in ISA conditions.
No credit is taken for the distance covered in these segments.
3.4 Climb from *** above departure airport up to cruise altitude using maximum
climb thrust and cruise at fixed Mach number of *** at pressure altitudes
of *** stepping to *** and descent to *** above destination airport are
conducted in ISA conditions. Speeds below *** shall be *** Khots CAS.
3.5 An allowance of *** of fuel is included for approach and landing at the
destination airport.
***
3.6 Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.4 above.
Trip fuel is defined as the fuel used during take-off, climb, cruise,
descent and approach and landing as described in paragraphs 3.3 to 3.5
above.
3.7 At the end of approach and landing *** of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Missed approach
2) Diversion in ISA conditions over a still air distance of ***
starting at *** above destination airport and ending at *** above
alternate airport
3) Holding for *** minutes at *** above alternate in ISA conditions
4) Approach and landing at the alternate
4. MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees a Manufacturer's Weight Empty of not more than a
guaranteed value of: ***.
This is the Manufacturer's Weight Empty as defined in Section 13-10 of the
Specification amended by the SCN's for associated changes as defined in
paragraph 1(i & ii) and which will be derived from the weighing of the
Aircraft.
The Manufacturer's Weight Empty is subject to adjustment as defined in
paragraph 7 below.
5. GUARANTEE CONDITIONS
5.1. The performance certification requirements for the Aircraft, except where
otherwise noted, will be as stated in Section 02 of the Specification.
5.2. For the determination of JAR take-off and landing performance a hard level
dry runway surface with no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes, flaps, landing
gear and engines in the conditions liable to provide the best results shall
be assumed.
For take-off performance no special procedures and no line-up-allowance
have been considered if not otherwise specified.
LA 6A GE Page 3/6
LETTER AGREEMENT NO 6A
5.2.1. When establishing take-off and second segment performance no air will be
bled from the engines for cabin air conditioning or anti-icing.
5.2.2 For the purpose of the take-off elements of the guarantee the centre of
gravity position providing the best results shall be assumed.
5.3. Climb, cruise and descent performance associated with the Guarantees will
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
paragraph 6.3 may be such as to optimise the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air will be bled from the engines for anti-icing.
Cruise performance at *** and above assumes a centre of gravity position
(MAC) giving the best results, unless otherwise stated.
5.4. The engines will be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
5.5. Where applicable the Guarantees assume the use of an approved fuel having a
density of *** kg/litre and a lower heating value of *** BTU/lb.
6. GUARANTEE COMPLIANCE
6.1. Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2. Compliance with the take-off, second segment, en-route one engine
inoperative, approach and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual. For
demonstration of take-off performance the optimal procedure may be used.
6.3. Compliance with those parts of the guarantees defined in paragraphs 2 and 3
not covered by the requirements of the certifying Airworthiness Authority
shall be demonstrated by calculation based on data obtained during flight
tests conducted on one (or more, at the Seller's discretion) A330-300
Aircraft of the same aerodynamic configuration as those Aircraft purchased
by the Buyer and incorporated in the In-Flight Performance Program and data
basis ("the IFP") appropriate to the A330-300 Aircraft..
6.4. Data derived from tests will be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance with
established aeronautical practices to show compliance with the Guarantees.
6.5. Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.6. Compliance with the Manufacturer's Weight Empty guarantee defined in
paragraph 4 shall be demonstrated with reference to a weight compliance
report.
6.7. The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's A330-300 Aircraft.
LA 6A GE Page 4/6
LETTER AGREEMENT NO 6A
7. ADJUSTMENT OF GUARANTEES
7.1. In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees shall be appropriately modified to
reflect the effect of any such change.
7.2. The Guarantees apply to the Aircraft as described in paragraph 1 and may be
adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of
the Specification
c) Changes required to obtain certification which causes changes to
the performance or weight of the Aircraft
8. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
9. UNDERTAKING REMEDIES
***
LA 6A GE Page 5/6
LETTER AGREEMENT NO 6A
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 6A GE Page 6/6
LETTER AGREEMENT NO 6B
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
SUBJECT: A330 PERFORMANCE GUARANTEES PW
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 6B PW Page 1/6
LETTER AGREEMENT NO 6B
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to the
A330-300 Aircraft as described in the Technical Specification Ref.
G.000.03000 Issue 7 Revision 1, dated 15th December 2003, as amended by a
Specification Change Notices ("SCN's") for:
i) implementation of PRATT&WHITNEY PW4168A engines
ii) increase of Design Weight to:
Maximum Take-off Weight ***
Maximum Landing Weight ***
Maximum Zero Fuel Weight ***
without taking into account any further changes thereto as provided in the
Agreement.
2. GUARANTEED PERFORMANCE
2.1. TAKE-OFF
JAR take-off field length at an Aircraft gross weight of *** at the start
of ground run at sea level pressure altitude in *** conditions shall be not
more than a guaranteed value of: ***
2.2. SECOND SEGMENT CLIMB
The Aircraft shall meet JAR regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of ground run at the altitude and temperature
and in the configuration of flap angle and safety speed required to comply
with the performance guaranteed in paragraph 2.1.
2.3. LANDING FIELD LENGTH
JAR certified dry landing field length at an Aircraft gross weight of ***
at sea level pressure altitude shall be not more than a guaranteed value
of: ***
2.4. EN-ROUTE ONE ENGINE INOPERATIVE CLIMB CAPABILITY
The Aircraft shall meet JAR regulations minimum en-route climb gradient
(1.1%), with one engine inoperative and the other one operating at maximum
continuous thrust available at that altitude with air conditioning on, with
anti-icing off, at an Aircraft gross weight of *** in cruise configuration,
in ISA conditions at a pressure altitude of a guaranteed value of not less
than: ***
3. MISSION GUARANTEE
The Aircraft shall be capable of carrying a fixed Zero Fuel Weight of ***
over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
3.1. The departure airport conditions are such as to allow the required take-off
weight to be used without any restriction.
The destination airport conditions are such to allow the required landing
weight to be used without any restriction.
LA 6B PW Page 2/6
LETTER AGREEMENT NO 6B
3.2 An allowance of *** of fuel is included for engine start and taxi out
3.3 An allowance of *** of fuel is included for take-off and climb to *** above
the departure airport with acceleration to climb speed in ISA conditions.
No credit is taken for the distance covered in these segments.
3.4 Climb from *** above departure airport up to cruise altitude using maximum
climb thrust and cruise at fixed Mach number of *** at pressure altitudes
of *** stepping to *** and descent to *** above destination airport are
conducted in ISA conditions.
Speeds below *** shall be *** knots CAS.
3.5 An allowance of *** of fuel is included for approach and landing at the
destination airport.
***
3.6 Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.4 above.
Trip fuel is defined as the fuel used during take-off, climb, cruise,
descent and approach and landing as described in paragraphs 3.3 to 3.5
above.
3.7 At the end of approach and landing *** of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Missed approach
2) Diversion in ISA conditions over a still air distance of ***
starting at *** above destination airport and ending at *** above
alternate airport
3) Holding for *** at *** above alternate in ISA conditions
4) Approach and landing at the alternate
4. MANUFACTURER'S WEIGHT EMPTY
The seller guarantees a manufacturer's weight empty of not more than a
guaranteed value of: ***.
This is the Manufacturer's Weight Empty as defined in sect on 13-10 of the
specification amended by the SCN's for associated changes as defined in
paragraph 1(i & ii) and which will be derived from the weighing of the
Aircraft.
The Manufacturer's Weight Empty is subject to adjustment as defined in
paragraph 7 below.
5. GUARANTEE CONDITIONS
5.1. The performance certification requirements for the Aircraft, except where
otherwise noted, will be as stated in section 02 of the specification.
5.2. For the determination of JAR take-off and landing performance a hard level
dry runway surface with no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes, flaps, landing
gear and engines in the conditions liable to provide the best results shall
be assumed.
For take-off performance no special procedures and no line-up allowance
have been considered if not otherwise specified.
LA 6B PW Page 3/6
LETTER AGREEMENT NO 6B
5.2.1. When establishing take-off and second segment performance no air will be
bled from the engines for cabin air conditioning or anti-icing.
5.2.2 For the purpose of the take-off elements of the guarantee the centre of
gravity position providing the best results shall be assumed.
5.3. Climb, cruise and descent performance associated with the Guarantees will
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
paragraph 6.3 may be such as to optimise the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air will be bled from the engines for anti-icing.
Cruise performance at *** and above assumes a centre of gravity position
(MAC) giving the best results, unless otherwise stated.
5.4. The engines will be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
5.5. Where applicable the Guarantees assume the use of an approved fuel having a
density of *** kg/litre and a lower heating value of *** BTU/lb.
6. GUARANTEE COMPLIANCE
6.1. Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2. Compliance with the take-off, second segment, en-route one engine
inoperative, approach and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual. For
demonstration of take-off performance the optimal procedure may be used.
6.3. Compliance with those parts of the guarantees defined in paragraphs 2 and 3
not covered by the requirements of the certifying Airworthiness Authority
shall be demonstrated by calculation based on data obtained during flight
tests conducted on one (or more, at the Seller's discretion) A330-300
Aircraft of the same aerodynamic configuration as those Aircraft purchased
by the Buyer and incorporated in the In-Flight Performance Program and data
basis ("the IFP") appropriate to the A330-300 Aircraft..
6.4. Data derived from tests will be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance with
established aeronautical practices to show compliance with the Guarantees.
6.5. Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.6. Compliance with the Manufacturer's Weight Empty guarantee defined in
paragraph 4 shall be demonstrated with reference to a weight compliance
report.
6.7. The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's A330-300 Aircraft.
LA 6B PW Page 4/6
LETTER AGREEMENT NO 6B
7. ADJUSTMENT OF GUARANTEES
7.1. In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees shall be appropriately modified to
reflect the effect of any such change.
7.2. The Guarantees apply to the Aircraft as described in paragraph 1 and may be
adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of
the Specification
c) Changes required to obtain certification which causes changes to
the performance or weight of the Aircraft
8. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
9. UNDERTAKING REMEDIES
***
LA 6B PW Page 5/6
LETTER AGREEMENT NO 6B
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 6B PW Page 6/6
LETTER AGREEMENT NO 6C
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong international Airport
Shanghai 201202
People's Republic of China
SUBJECT: A330-300 AIRCRAFT PERFORMANCE GUARANTEES RR
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 6C RR Page 1/6
LETTER AGREEMENT NO 6C
1. AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to the
A330-300 Aircraft as described in the Technical Specification Ref.
G.000.03000 Issue 7 Revision 1, dated 15th December 2003, as amended by a
Specification Change Notices ("SCN's") for:
i) implementation of ROLLS ROYCE RB211-TRENT 772B engines
ii) increase of Design Weight to:
Maximum Take-off Weight ***
Maximum Landing Weight ***
Maximum Zero Fuel Weight ***
without taking into account any further changes thereto as provided in the
Agreement.
2. GUARANTEED PERFORMANCE
2.1. TAKE-OFF
JAR take-off field length at an Aircraft gross weight of *** at the start
of ground run at sea level pressure altitude in *** conditions shall be not
more than a guaranteed value of: ***
2.2. SECOND SEGMENT CLIMB
The Aircraft shall meet JAR regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of ground run at the altitude and temperature
and in the configuration of flap angle and safety speed required to comply
with the performance guaranteed in paragraph 2.1.
2.3. LANDING FIELD LENGTH
JAR certified dry landing field length at an Aircraft gross weight of ***
at sea level pressure altitude shall be not more than a guaranteed
value of: ***
2.4. EN-ROUTE ONE ENGINE INOPERATIVE CLIMB CAPABILITY
The Aircraft shall meet JAR regulations minimum en-route climb gradient
(1.1%), with one engine inoperative and the other one operating at maximum
continuous thrust available at that altitude with air conditioning on, with
anti-icing off, at an Aircraft gross weight of *** in cruise configuration,
in ISA conditions at a pressure altitude of a guaranteed value of not less
than: ***
3. MISSION GUARANTEE
The Aircraft shall be capable of carrying a fixed Zero Fuel Weight of ***
over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
3.1. The departure airport conditions are such as to allow the required take-off
weight to be used without any restriction.
The destination airport conditions are such to allow the required landing
weight to be used without any restriction.
LA 6C RR Page 2/6
LETTER AGREEMENT NO 6C
3.2 An allowance of *** of fuel is included for engine start and taxi out
3.3 An allowance of *** kg of fuel is included for take-off and climb to ***
above the departure airport with acceleration to climb speed in ISA
conditions.
No credit is taken for the distance covered in these segments.
3.4 Climb from *** above departure airport up to cruise altitude using maximum
climb thrust and cruise at fixed Mach number of *** at pressure altitudes
of *** stepping to *** and descent to *** above destination airport are
conducted in ISA conditions.
Speeds below *** shall be *** knots CAS.
3.5 An allowance of *** of fuel is included for approach and landing at the
destination airport.
***.
3.6 Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.4 above.
Trip fuel is defined as the fuel used during take-off, climb, cruise,
descent and approach and landing as described in paragraphs 3.3 to 3.5
above.
3.7 At the end of approach and landing *** of fuel will remain in the tanks.
This represents the estimated fuel required for:
1) Missed approach
2) Diversion in ISA conditions over a still air distance of ***
starting at *** above destination airport and ending at *** above
alternate airport
3) Holding for *** minutes at *** above alternate in ISA conditions
4) Approach and landing at the alternate
4. MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees a Manufacturer's Weight Empty of not more than a
guaranteed value of: ***.
This is the Manufacturer's Weight Empty as defined in Section 13-10 of the
Specification amended by the SCN's for associated changes as defined in
paragraph 1(i & ii) and which will be derived from the weighing of the
Aircraft.
The Manufacturer's Weight Empty is subject to adjustment as defined in
paragraph 7 below.
5. GUARANTEE CONDITIONS
5.1. The performance certification requirements for the Aircraft, except where
otherwise noted, will be as stated in Section 02 of the Specification.
5.2. For the determination of JAR take-off and landing performance a hard level
dry runway surface with no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes, flaps, landing
gear and engines in the conditions liable to provide the best results shall
be assumed.
For take-off performance no special procedures and no line-up allowance
have been considered if not otherwise specified.
LA 6C RR Page 3/6
LETTER AGREEMENT NO 6C
5.2.1. When establishing take-off and second segment performance no air will be
bled from the engines for cabin air conditioning or anti-icing.
5.2.2 For the purpose of the take-off elements of the guarantee the centre of
gravity position providing the best results shall be assumed.
5.3. Climb, cruise and descent performance associated with the Guarantees will
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
paragraph 6.3 may be such as to optimise the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air will be bled from the engines for anti-icing.
Cruise performance at *** and above assumes a centre of gravity position
(MAC) giving the best results, unless otherwise stated.
5.4. The engines will be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
5.5. Where applicable the Guarantees assume the use of an approved fuel having a
density of *** kg/litre and a lower heating value of *** BTU/lb.
6. GUARANTEE COMPLIANCE
6.1. Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2. Compliance with the take-off, second segment, en-route one engine
inoperative, approach and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual. For
demonstration of take-off performance the optimal procedure may be used.
6.3. Compliance with those parts of the guarantees defined in paragraphs 2 and 3
not covered by the requirements of the certifying Airworthiness Authority
shall be demonstrated by calculation based on data obtained during flight
tests conducted on one (or more, at the Seller's discretion) A330-300
Aircraft of the same aerodynamic configuration as those Aircraft purchased
by the Buyer and incorporated in the In-Flight Performance Program and data
basis ("the IFP") appropriate to the A330-300 Aircraft.
6.4. Data derived from tests will be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance with
established aeronautical practices to show compliance with the Guarantees.
6.5. Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.6. Compliance with the Manufacturer's Weight Empty guarantee defined in
paragraph 4 shall be demonstrated with reference to a weight compliance
report.
6.7. The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's A330-300 Aircraft.
LA 6C RR Page 4/6
LETTER AGREEMENT NO 6C.
7. ADJUSTMENT OF GUARANTEES
7.1. In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees shall be appropriately modified to
reflect the effect of any such change.
7.2. The Guarantees apply to the Aircraft as described in paragraph 1 and may be
adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of
the Specification
c) Changes required to obtain certification which causes changes to
the performance or weight of the Aircraft
8. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
9. UNDERTAKING REMEDIES
***
LA 6C RR Page 5/6
LETTER AGREEMENT NO 6C
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 6C RR Page 6/6
LETTER AGREEMENT NO 7
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: MISCELLANEOUS
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement, upon execution thereof, shall
constitute an integral, nonseverable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
LA 7 Page 1/7
LETTER AGREEMENT NO 7
1. CLAUSE 5 PAYMENTS
1.1 The Buyer and the Seller acknowledge that sub-Clause 5.3.5 and sub-Clause
5.11 of this Agreement shall not be applicable.
1.2 The parties agree to add to sub-Clause 5.3.2 the following paragraph:
QUOTE
***
UNQUOTE
2. CLAUSE 7 CERTIFICATION
Notwithstanding the terms of sub-Clause 7.3.1 (ii) the parties agree to add
the following sentence to sub-Clause 7.3.1 (ii):
QUOTE
***
UNQUOTE
LA 7 Page 2/7
LETTER AGREEMENT NO 7
3. CLAUSE 9 DELIVERY
3.1 The parties agree to add to sub-Clause 9.3.1 the following paragraph:
QUOTE
***
UNQUOTE
3.2 The parties agree to delete sub-Clause 9.3.2 in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
4. CLAUSE 10 EXCUSABLE DELAY
4.1 The parties agree to add to sub-Clause 10.1 the following sentence:
QUOTE
***
UNQUOTE
4.2 The parties agree to delete sub-Clause 10.2 (i) in its entirety and replace
it by the following:
QUOTE
***
LA 7 Page 3/7
LETTER AGREEMENT NO 7
UNQUOTE
4.3 The parties agree to delete sub-Clause 10.3.3 in its entirety and replace
it with the following:
QUOTE
***
UNQUOTE
4.3 The parties agree to delete sub-Clause 10.5 in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
LA 7 Page 4/7
LETTER AGREEMENT NO 7
5. CLAUSE 11 NON EXCUSABLE DELAY
The parties agree to delete sub-Clause 11.3 in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
6. CLAUSE 14 TECHNICAL DATA AND SOFTWARE SERVICES
The parties agree to delete sub-Clause 14.5 in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
7. CLAUSE 15 SELLER REPRESENTATIVE
***
LA 7 Page 5/7
LETTER AGREEMENT NO 7
8. CLAUSE 20 TERMINATION
The parties agree to add to sub-Clause 20.2 the following paragraph:
QUOTE
***
UNQUOTE
9. CLAUSE 21 ASSIGNMENTS AND TRANSFERS
The parties agree to delete sub-Clause 21.2 in its entirety and replace it
with the following:
QUOTE
***
UNQUOTE
LA 7 Page 6/7
LETTER AGREEMENT NO 7
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AIRLINES AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
LA 7 Page 7/7
SIDE LETTER NO 1
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
Subject: ***
China Eastern Corporation, Limited (the "Buyer") and Airbus S.A.S. (the
"Seller") have entered into a Purchase Agreement ("the Agreement") dated as of
even date herewith which covers the manufacture and the sale by the Seller and
the purchase by the Buyer of the A330-300 model aircraft (the "Aircraft" as
described in the Agreement).
Now the Buyer and the Seller agree the following:
***
Side Letter 1-Page 1/1
SIDE LETTER NO 1
If the foregoing correctly sets forth our understanding, please execute three
(3) originals in the space provided below and return one (1) original of this
Letter Agreement to the Seller.
Agreed and accepted, Xxxxxx and accepted,
For and on behalf of For and on behalf of
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
Name: /s/ Xxx Xxxxxxx Name: /s/ Xxxx Xxxxxxxx
------------------------------- ----------------------------------
Title: Title: CEO
------------------------------
CHINA EASTERN AVIATION
IMPORT AND EXPORT CORPORATION
Name: /s/ Xxx Xxxxxx
-------------------------------
Title:
------------------------------
Side Letter 1 - Page 2/2
AMENDMENT NO 1
TO THE A330 PURCHASE AGREEMENT
BETWEEN
AIRBUS S.A.S.
AND
CHINA EASTERN AIRLINES CORPORATION LTD
AND
CHINA EASTERN AVIATION IMPORT AND EXPORT CORPORATION
Page 1/6
AMENDMENT NO 1
This amendment No. 1 to the A330 Purchase Agreement dated as of October 09th,
2004 is made as of the 10th day of December 2004.
BETWEEN
AIRBUS S.A.S., a societe par actions simplifiee, legal successor of Airbus
S.N.C., formerly known as Airbus G.I.E created and existing under French law and
registered with the Toulouse Registre du Commerce under number RCS Toulouse 383
474 814 and having its registered office at
1 Rond-Point Xxxxxxx Xxxxxxxx
31707 BLAGNAC Cedex
FRANCE
(hereinafter referred to as "the Seller") of the one part,
CHINA EASTERN AIRLINES CORPORATION, LIMITED, having its principal office at:
Pudong International Airport
SHANGHAI 201202
PEOPLE'S REPUBLIC OF CHINA
(hereinafter referred to as the "Airline") of the other part
AND
CHINA EASTERN AVIATION IMPORT AND EXPORT CORPORATION, having its principal
office at:
Pudong International Airport
SHANGHAI 201202
PEOPLE'S REPUBLIC OF CHINA
(hereinafter referred to as the "Trading Corporation", the Airline and the
Trading Corporation hereinafter referred to jointly and severally as the
"Buyer").
Page 2/6
WHEREAS
- The parties hereto have signed on the 09th day of October 2004 an A330
Purchase Agreement called hereinafter together with its Exhibits and
Letter Agreements (the "Agreement") for the sale of a certain number
of A330 aircraft, collectively referred to as the "Aircraft".
- Now the Buyer wishes and the Seller agrees to enter into an amendment
No. 1 (the "Amendment") to convert five (5) Aircraft respectively
referred to as Aircraft No. 3, 4, 5, 11 and 17 under the Agreement
into A330-200 Aircraft (the "Converted Aircraft") at delivery dates
detailed in Paragraph 3 of this Amendment.
- The Buyer will have no further right of conversion with respect to the
Aircraft which has been converted.
- Except as provided herein in the Amendment, upon signature of this
Amendment the Converted Aircraft shall be deemed Aircraft.
- For the sake of clarity, Letter Agreement No.6 to the Agreement will
not apply to the Converted Aircraft.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
Page 3/6
1. GENERAL
The following paragraphs will define the specific amendments to the
Agreement which will apply only to the Converted Aircraft to be delivered
to the Buyer.
2. CONVERTED AIRCRAFT SPECIFICATION
The Converted Aircraft will be manufactured in accordance with the Standard
Specification document No. G.000.02000, Issue 4 Revision 1 dated December
15. 2003 (the "Standard Specification") ***
***
***
3. CONVERTED AIRCRAFT DELIVERY DATES
The Converted Aircraft shall be delivered at the following dates:
Aircraft No. 3: ***
Aircraft No. 4: ***
Aircraft No. 5: ***
Aircraft No. 11: ***
Aircraft No. 17: ***
4. CONVERTED AIRCRAFT AIRFRAME BASIC PRICE
4.1 The Airframe Basic Price is the sum of:
(i) ***
(ii) the budget of the basic prices of all SCNs is:
USD ***
(US Dollars ***)
4.2 The Airframe Basic Price has been established in accordance with the
average economic conditions prevailing in December 2002, January 2003,
February 2003 and corresponding to a theoretical delivery in January 2004
(the "Base Period").
5. PREDELIVERY PAYMENTS
Predelivery Payments will be revised in accordance with the terms of this
Amendment.
Page 4/6
6. ***
6.1 ***
6.2 ***
Page 5/6
IN WITNESS WHEREOF, this Amendment No. 1 was entered into the day and year above
written.
For and on behalf of: For and on behalf of:
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
By: /s/ Xxx Xxxxxxx By: /s/ Xxx Xxxxxx
--------------------------------- ------------------------------------
Its: Xxx Xxxxxx
-------------------------------- Its: V.P. Contracts
CHINA EASTERN AVIATION IMPORT
AND EXPORT CORPORATION
By: /s/ Xxx Xxxxxx
---------------------------------
Its:
--------------------------------
Date: December 10th, 2004
Page 6/6
LETTER AGREEMENT NO 1 TO AMENDMENT NO. 1
CHINA EASTERN AIRLINES CORPORATION, LIMITED
Pudong International Airport
Shanghai 201202
People's Republic of China
SUBJECT: CONVERTED AIRCRAFT PERFORMANCE GUARANTEES RR
CHINA EASTERN AIRLINES CORPORATION ("the Buyer") and AIRBUS S.A.S. ("the
Seller") have signed on the 09th day of October 2004 an A330 Purchase Agreement
called hereinafter together with its Exhibits and Letter Agreements (the
"Agreement") for the sale of a certain number of A330 aircraft, collectively
referred to as the "Aircraft".
The parties have entered into an amendment No.1 (the "Amendment") dated as of
even date herewith to convert five (5) Aircraft into A330-200 Aircraft (the
"Converted Aircraft").
Both parties agree that this Letter Agreement No.1 to the Amendment shall
constitute an integral part of said Amendment.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
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LETTER AGREEMENT NO 1 TO AMENDMENT NO. 1
1. AIRCRAFT CONFIGURATION
1.1 The guarantees defined below ("the Guarantees") are applicable to the
Converted Aircraft as described in the Technical Specification Ref.
G.000.02000 Issue 4 Revision 1 dated 15th December 2003 as amended by
Specification Change Notice (SCN) for the increase in Design Weights to:
Maximum Take-off Weight ***
Maximum Landing Weight ***
Maximum Zero Fuel Weight ***
and powered by Rolls Xxxxx Xxxxx 772B engines without taking into account
any further changes thereto as provided in the Agreement ("the
Specification").
2. GUARANTEED PERFORMANCE
2.1 JAR Take-off Field Length
JAR take-off field length on a dry runway at an Aircraft gross weight of
*** at the start of ground run at sea level pressure altitude in ***
conditions shall be not more than a guaranteed value of ***.
2.2 Second Segment Climb
The Aircraft shall meet JAR regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of the ground run at the altitude and
temperature and in the configuration of flap angle and safety speed
required to comply with the performance guaranteed in Para 2.1 above.
2.3 Landing Field Length
JAR certified landing field length at an Aircraft gross weight of *** at
sea level pressure altitude with zero wind and slope shall be not more than
a guaranteed value of ***.
2.4 En-route One Engine Inoperative Climb Capability
The Aircraft shall meet JAR regulations minimum en-route climb gradient
(1.1%), with one engine inoperative and the other operating at maximum
continuous thrust available at that altitude with air conditioning on,
anti-ice off, at an Aircraft gross weight of *** in cruise configuration,
in ISA conditions at a pressure altitude of a guaranteed value of not less
than ***.
3 MISSION GUARANTEES
3.1 Mission Payload
The Aircraft shall be able of carrying a guaranteed payload of *** over a
still air distance of *** nautical miles (representative of PVG to SVO
mission (*** ground distance) against a *** kts headwind) when operated
under the conditions defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction. The airport altitude is ***
feet.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. The airport altitude is ***
feet.
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LETTER AGREEMENT NO 1 TO AMENDMENT NO.1
3.1.2 Allowances of *** of fuel is considered for engine start and taxi out.
3.1.3 Allowances of *** of fuel and *** time are considered for take-off and
climb to *** above departure airport with acceleration to climb speed at
ISA conditions.
3.1.4 Climb from *** above the departure airport up to cruise altitude using
maximum climb thrust and cruise at fixed Mach number of *** at pressure
altitudes between *** and *** and *** descent to *** above the destination
airport are conducted in ISA conditions. Speeds below *** shall be ***
knots CAS.
3.1.5 Allowances of *** fuel and *** of time are considered for approach and
landing at destination.
3.1.6 An allowance of *** of fuel to be taken from the reserves is considered
for taxi in.
3.1.7 Stage distance is defined as the distance covered during climb, cruise and
descent as described above in Paragraph 3.0.4 above.
Flight time is defined as the time used during take-off, climb, cruise,
descent, approach and landing as described above in Paragraphs 3.1.3 to
3.1.5
3.1.8 After approach and landing *** of usable fuel shall remain in the tanks.
This represents the estimated fuel defined as the sum of:
1) Allowance: Contingency fuel *** of flight time
2) Missed approach
3) Diversion in ISA conditions over a still air distance of ***
(representative of SVO to MHP at zero wind) starting at ***
altitude above the destination airport and ending at *** altitude
above the diversion airport
4) Holding for *** minutes at *** altitude above diversion airport
in ISA conditions
5) Approach and land at diversion airport
6) A fuel mark up of *** has been applied for missed approach to
approach and landing at diversion airport
3.2 Operating Weight Empty definition
The Mission Payload guarantee defined in Paragraph 3.1 above has been based
on a fix estimated Operating Weight Empty of ***.
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees a Manufacturer's Weight Empty of *** plus ***. This
is Manufacturer's Weight Empty as defined in Section 13-10.00.00 amended by
the SCN for associated changes as defined in Para 1.1 and which will be
derived from the weighing of the Aircraft and is subject to adjustment as
defined in paragraph 7.2 below.
5 GUARANTEE CONDITIONS
5.1 The performance certification requirements for the Aircraft, except where
otherwise noted, will be as stated in Section 02 of the Specification.
5.2 For the determination of JAR take-off and landing performance a hard level
dry runway surface with no line-up allowance, no obstacles, zero wind,
atmosphere according to ISA, except as otherwise noted and the use of
speedbrakes, flaps, landing gear and engines in the conditions liable to
provide the best results shall be assumed.
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LETTER AGREEMENT NO 1 TO AMENDMENT NO.1
5.2.1 When establishing take-off performance no air shall be bled from the
engines for cabin air conditioning or anti-icing.
5.2.2 For the purposes of the take-off elements of the Guarantee the centre of
gravity position providing the best results shall be assumed.
5.3 Climb, cruise and descent performance associated with the Guarantees shall
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
paragraph 6.3 may be such as to optimize the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air shall be bled from the engines for anti-icing.
Cruise performance at *** and above assumes a centre of gravity position
of *** MAC.
5.4 The engines shall be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
5.5 Where applicable the Guarantees assume the use of an approved fuel having a
density of *** kg/litre and a lower heating value of *** BTU/lb.
6 GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2 Compliance with the take-off, second segment landing and one engine
inoperative elements of the Guarantees shall be demonstrated with reference
to the approved Flight Manual.
6.3 Compliance with those parts of the guarantees defined in paragraphs 2 and 3
not covered by the requirements of the certifying Airworthiness Authority
shall be demonstrated by calculation based on data obtained during flight
tests conducted on one (or more, at the Seller's discretion) A330-200
aircraft of the same aerodynamic configuration as those Aircraft purchased
by the Buyer and incorporated in the In-Flight Performance Program and data
bases ("the IFP") appropriate to the Aircraft.
6.4 Compliance with the Manufacturer's Weight Empty guarantee defined in
paragraph 4 shall be demonstrated with reference to a weight compliance
report.
6.5 Data derived from tests shall be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance with
established aeronautical practices to show compliance with the Guarantees.
6.6 Compliance with the Guarantees shall be based on the performance of the
airframe/engine combination as defined in Paragraph 1 above and shall not
be contingent on engine performance defined in the engine manufacturer's
specification.
6.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after the delivery of each of the Buyer's Converted Aircraft.
7 ADJUSTMENT OF GUARANTEES
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LETTER AGREEMENT NO 1 TO AMENDMENT NO. 1
7.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees shall be appropriately modified to
reflect the effect of any such change.
7.2 The Guarantees apply to the Aircraft as described in paragraph 1 and may be
adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of
the Specification
c) Changes required to obtain certification which cause changes to
the performance or weight of the Aircraft
8 UNDERTAKING REMEDIES
***
9 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
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LETTER AGREEMENT NO 1 TO AMENDMENT NO. 1
If the foregoing sets forth our understanding please execute the original and
one copy thereof in the space provided and return the copy to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of: For and on behalf of:
CHINA EASTERN AIRLINES AIRBUS S.A.S.
CORPORATION LIMITED
By: /s/ Xxx Xxxxxxx By: /s/ Xxx Xxxxxx
--------------------------------- ------------------------------------
Its: Xxx Xxxxxx
-------------------------------- Its: V.P. Contracts
CHINA EASTERN AVIATION IMPORT
AND EXPORT CORPORATION
By: /s/ Xxx Xxxxxx
---------------------------------
Its:
--------------------------------
Date: DECEMBER 10th, 2004
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