* Confidential treatment has been requested for portions of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "*". A complete
version of this exhibit has been filed separately with the Securities and
Exchange Commission.
Exhibit 10.2
A350
PURCHASE AGREEMENT
BETWEEN
AIRBUS S.A.S.
AS SELLER
AND
TAM-LINHAS AEREAS S.A.
AS BUYER
DATE: December 20th, 2005
REFERENCE: CCC 337.0042/05
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 AIRCRAFT PRICE REVISION FORMULA
Exhibit D FORM OF CERTIFICATE OF ACCEPTANCE
Exhibit E FORM OF XXXX OF SALE
Exhibit F SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE
Exhibit G TECHNICAL DATA INDEX
Exhibit H MATERIAL SUPPLY AND SERVICES
LETTERS AGREEMENTS TITLES
------------------ ------
Letter Agreement No 1: *
Letter Agreement No 2: *
Letter Agreement No 3: OPTIONS
Letter Agreement No 4: *
Letter Agreement No 5A: A350-900 PERFORMANCE GUARANTEE (75,000 lbs Thrust)
Letter Agreement No 5B: *
Letter Agreement No 5C: *
Letter Agreement No 6A: *
Letter Agreement No 6B: *
Letter Agreement No 7: *
Letter Agreement No 8: *
Letter Agreement No 9: *
Letter Agreement No 10: MISCELLANEOUS
Letter Agreement No 11: *
Foreword - Page 3/4
A 350-900 PURCHASE AGREEMENT
This X000-000 Xxxxxxxx Agreement (the "AGREEMENT") is made as of the 20th day of
December 2005
BETWEEN:
AIRBUS S.A.S., a societe par actions simplifiee, legal successor of Airbus
S.N.C., formerly known as Airbus G.I.E. and Airbus Industrie G.I.E. created and
existing under French law having its registered office at 0 Xxxx-Xxxxx Xxxxxxx
Xxxxxxxx, 00000 Xxxxxxx-Xxxxx, Xxxxxx and registered with the Toulouse Registre
du Commerce under number RCS Toulouse 383 474 814 (the "SELLER"),
and
TAM - LINHAS AEREAS S.A. a company organised under the laws of Brazil having its
principal place of business at Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4, CEP
04072 - 000, Xxxxxx XXXX, SAO PAULO - SP. BRAZIL (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.
AGREEMENT means this Agreement including the Appendices and
Exhibits hereto and all Letter Agreements entered
into by the Buyer and the Seller in respect
hereof.
AIRCRAFT means an Airbus A350-900 aircraft including the
Airframe, the Engines, 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 as defined in Clause
16.8.1) or training support performed on aircraft
and provided to the Buyer pursuant to this
Agreement.
AIRFRAME means the Aircraft excluding the Engines.
AIRCRAFT BASIC PRICE has the meaning set out in Clause 3.1.
AIRCRAFT PRICE REVISION
FORMULA is set out in 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.
XXXX OF SALE has the meaning set out in Clause 9.2.2.
BUSINESS DAY means (i) a day, other than a Saturday or Sunday
on which business of the kind contemplated by this
Agreement is carried out in France and Brazil, or
(ii) where used in relation to a payment, which is
also a day on which banks are open for business in
France, New York or Brazil.
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
Clause 0 - Page 1/3
assembly of the Aircraft.
ENGINES has the meaning set out in Clause 2.2.
ENGINES MANUFACTURER means the manufacturer of the Engines as set out
in Clause 2.2.
EXCUSABLE DELAY has the meaning set out in Clause 10.1.
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 3.2
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.
MATERIAL has the meaning set out in Clause 1.2 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.
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 9.1.1.
SELLER'S REPRESENTATIVES means the representatives of the Seller referred
to in Clause 15.2.
SELLER REPRESENTATIVES means the services provided by the Seller to
SERVICES 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.
SPARE PARTS means the items of equipment and material 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 A350-900 standard specification
document
Clause 0 - Page 2/3
number G.000.09000, Issue B, dated June 30th,
2005, a copy of which has been annexed hereto in
form of a CD-Rom 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 ACCEPTANCE
PROCESS has the meaning set out in Clause 8.1.1.
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 ten (10) A350-900 Aircraft 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 I or, as applicable. Appendix II to Exhibit A.
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 Aircraft 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 ENGINES
The Airframe shall be equipped with a set of two (2) General
Electric GEnx-1A75 engines (Engine Thrust 75,000 Lbs) (the
"ENGINES").
Clause 2 - Page 1/2
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 (such agreement to be reflected in the execution
of one or more SCNs) 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 Aircraft Basic Price
3.1.1 The Aircraft Basic Price includes the basic price of the
Airframe, nacelles, thrust reversers and Engines (General
Electric Genx 1A75). The Aircraft Basic Price is the sum of:
(i) the basic price of the Aircraft as defined in the Standard
Specification (excluding Buyer Furnished Equipment), which
is:
*
(ii) the sum of the basic prices of all SCNs set forth in
Appendix II to the Exhibit A (the "Aircraft Modification
Package Price"), which is:
*
3.1.2 The Aircraft 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 Final Price
The Final Price of each Aircraft shall be the sum of:
(i) the Aircraft Basic Price as revised as of the Delivery Date
in accordance with Clause 4; plus
(ii) the aggregate of all increases or decreases to the Aircraft
Basic Price as agreed in any Specification Change Notice or
part thereof applicable to the Aircraft subsequent to the
date of this Agreement as revised as of the Delivery Date in
accordance with Clause 4; plus
(iii) any other amount due by the Buyer to the Seller provided
for or resulting from the any other provision of this
Agreement and/or any other written agreement between the
Buyer and the Seller with respect to the Aircraft.
Clause 3 - Page 1/1
4. PRICE REVISION
The Aircraft Basic Price is subject to revision in accordance
with the Aircraft Price Revision Formula up to and including the
Delivery Date (as set forth in Exhibit C).
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: 0121 635 000 100
with:
CALYON
SWIFT: CRLYUS33
ABA: 000000000
1301 avenue of the Americas
Xxx Xxxx, XX 00000
XXX
or to such other account as may be designated in writing by the
Seller.
5.2 COMMITMENT FEE
An amount equal to the initial commitment fee of US Dollars * per
Aircraft already paid by the Buyer to the Seller prior to the
date of this Agreement shall be deducted from the first
Predelivery Payment due under this Agreement.
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", as defined herebelow). The
Predelivery Payment Reference Price is determined by the
following formula:
A = Pb (1 + 0.03N)
Where
A : The Predelivery Payment Reference Price for Aircraft to be
delivered in year T;
T : the year of Delivery of the relevant Aircraft
Pb : the Aircraft Basic Price;
N : (T- *
Clause 5 - Page 1/5
5.3.2 Such Predelivery Payments shall be made in accordance with the
following schedule:
DUE DATE OF PAYMENTS PERCENTAGE OF
PREDELIVERY PAYMENT
REFERENCE PRICE
*
In the event that at signature of the Agreement any of the above
payments due at * months prior to Delivery have already fallen
due as the respective Deliveries are scheduled at less than * '
months after signature, such payments shall be made together with
the payment of * due upon signature of the Agreement.
5.3.3 Any Predelivery Payment received by the Seller shall constitute
an instalment ("acompte") in respect of the Final Price of the
Aircraft. The Seller shall be entitled to hold and use any
Predelivery Payment as absolute owner thereof, subject only to
(i) the obligation to deduct any such Predelivery Payment from
the Final Price when calculating the Balance of Final Price or
(ii) the obligation to repay to the Buyer an amount equal to the
Predelivery Payments pursuant to any other provision of this
Agreement.
5.3.4 If any Predelivery Payment is not received on the relevant due
date specified in Clause 5.3.2 then, and in addition to any other
rights and remedies available to Seller, the Seller shall have
the right to set back the Scheduled Delivery Month by a period of
* for each * days such payment is delayed.
Furthermore, if such delay is greater than * the Seller shall
have no obligation to deliver the Aircraft within the Scheduled
Delivery Month as modified pursuant to the preceding paragraph.
Upon receipt of the full amount of all delayed Predelivery
Payments, together with Default Interest pursuant to Clause 5.7,
the Seller shall inform the Buyer of a new Scheduled Delivery
Month consistent with the Seller's other commitments and
production capabilities.
Clause 5 - Page 2/5
5.3.5 Specification Change Notice Predelivery Payments
The Seller shall be entitled to request Predelivery Payments for
each SCN executed after signature of this Agreement if such SCN
does not originate from the Seller's system or catalogue
configuration guides. Such Predelivery Payments shall correspond
to.
*
5.4 BALANCE OF FINAL PRICE
5.4.1 The Balance of the Final Price payable by the Buyer to the Seller
on the Delivery Date shall be the Final Price less the amount of
all Predelivery Payments received by the Seller for the relevant
Aircraft on or before the Delivery Date.
5.4.2 Upon receipt of the Seller's invoice, immediately prior *
Delivery, the Buyer shall pay to the Seller the Balance of the
Final Price.
5.5 OTHER CHARGES
Unless expressly stipulated otherwise, any other charges due
under this Agreement other than those set out in Clauses 5.2, 5.3
and 5.4 shall be paid by the Buyer at the same time as payment of
the Balance of Final Price or, if invoiced after the Delivery
Date, within * after the invoice date.
5.6 METHOD OF PAYMENT
5.6.1 All payments provided for in this Agreement shall be made in the
United States Dollars (USD) in immediately available funds.
5.6.2 All payments due to the Seller hereunder shall be made in full,
without set-off, counterclaim, deduction or withholding of any
kind. Consequently, the Buyer shall procure that the sums
received by the Seller under this Agreement shall be equal to the
full amounts expressed to be due to the Seller hereunder, without
deduction or withholding on account of and free from any and all
taxes, levies, imposts, dues or charges of whatever nature. In
the event that the tax laws of Brazil change in a manner that
would require the Buyer to make any such deduction or withholding
the Buyer shall pay such additional amounts as may be necessary
in order that the net amount received by the Seller after such
deduction or withholding shall be equal to the amounts which
would have been received in the absence of such deduction or
withholding and pay to the relevant taxation or other authorities
within the period for payment permitted by applicable law, the
full amount of the deduction or withholding.
5.7 DEFAULT INTEREST
If any payment due to the Seller under this Agreement including
but not limited to any Predelivery Payment, option fees for the
Aircraft as well as any payment due to the Seller for any spare
parts, data, documents, training and services, is not received on
the due date, without prejudice to the Seller's other rights
under this Agreement and at law, 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 * deposits in US
Dollars (as published in the Financial Times on the due date)
plus *
Clause 5 - Page 3/5
per year (part year to be prorated).
All such interest shall be compounded monthly and calculated on
the basis of the actual number of days elapsed in the month
assuming a thirty (30) day month and a three hundred and sixty
(360) day year.
5.8 TAXES
5.8.1 The amounts stated in this Agreement to be payable by the Buyer
are exclusive of value added tax ("VAT") chargeable under the
laws of the Delivery Location.
5.8.2 Subject to Buyer exporting the Aircraft after Delivery and
providing the Seller with all necessary documents attesting to
this exportation, the Seller shall pay all taxes, duties or
similar charges of any nature whatsoever levied, assessed,
charged or collected for or in connection with the manufacture,
assembly, sale and delivery under this Agreement of any of the
Aircraft, services, instructions and data delivered or furnished
hereunder provided such charges have been promulgated and are
enforceable under the laws of the Delivery Location, or if
different, FRANCE, the FEDERAL REPUBLIC OF GERMANY, GREAT BRITAIN
or SPAIN.
5.8.3 The Buyer shall bear the costs of and pay any and all taxes,
duties or similar charges of any nature whatsoever not assumed by
the Seller under Clause 5.8.2 including but not limited to any
duties or taxes due upon or in relation to the importation or
registration of the Aircraft in the Buyer's country and/or any
withholdings or deductions levied or required in the Buyer's
country in respect of the payment to the Seller of any amount due
by the Buyer hereunder.
5.8.4 *
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 * agreement between the Buyer
and the Seller against any obligation owed by the Seller to the
Buyer *. regardless of the place of payment or currency (it
being understood that if this obligation is unascertainable it
may be estimated and the set-off made in respect of such
estimate).
Clause 5 - Page 4/5
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 under any * 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
(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.
*
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, in accordance with the provisions
hereof, 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 * Business 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 * Business 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
Each Airframe shall be manufactured in accordance with the
relevant requirements of the laws of the jurisdiction of
incorporation of the Seller or of its relevant Affiliates as
enforced by the Aviation Authority of such jurisdictions.
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
its 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).
Clause 6 - Page 1/1
7 CERTIFICATION
7.1 TYPE CERTIFICATION
The Aircraft shall have been type certificated under European
Aviation Safety Agency (EASA) procedures for joint certification
in the transport category. The Seller shall have obtained the
relevant type certificate (the "TYPE CERTIFICATE") to allow the
issuance of the Export Airworthiness Certificate.
7.2 EXPORT AIRWORTHINESS CERTIFICATE
7.2.1 The Aircraft shall be delivered to the Buyer with an Export
Airworthiness Certificate valid for export of the Aircraft to
Brazil.
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
*
7.3.2. Notwithstanding the provisions of sub-Clauses 7.3.1 (i) and (ii),
if the Change in Law relates to the Engines, the costs shall be
borne in accordance with such arrangements as may be made
separately between the Buyer and the Engines 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 * technical
acceptance process (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) commence *
(ii) take place at the Delivery Location;
(iii) be carried out by the personnel of the Seller, *
(iv) include a technical acceptance flight which shall not exceed
a period of three (3) hours.
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 * Business Days
after its commencement;
(ii) may have a maximum of * of the Buyer's representatives
(with no more than * such representatives having access to
the cockpit at any one time) accompany the Seller's
representatives on a technical acceptance flight and during
such flight the Buyer's representatives shall comply with
the instructions of the Seller's representatives.
8.2.3 If the Buyer, * does not attend and/or fails to co-operate in the
Technical Acceptance Process, the Seller shall be entitled to
complete the Technical Acceptance Process and the Buyer shall be
deemed to have accepted the Technical Acceptance Process as
satisfactory in all respects.
Clause 8 - Page 1/2
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").
8.4 AIRCRAFT UTILISATION
The Seller shall, without payment or other liability to the
Buyer, be entitled to use the Aircraft prior to Delivery as may
be necessary to obtain the certificates required under Clause
7.2, and such use shall not prejudice the Buyer's obligation to
accept Delivery of the Aircraft hereunder.
However the Seller shall not be authorised to use the Aircraft
during more than * hours for any other purpose without the
specific agreement of the Buyer.
*
Clause 8 - Page 2/2
9 DELIVERY
9.1 DELIVERY SCHEDULE
9.1.1 Subject to Clauses 2, 7, 8, 10 and 18, the Seller shall have the
Aircraft Ready for Delivery at the Delivery Location within the
following quarters:
- 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...
At a time closer to the above mentioned quarters, at the latest *
months prior to the beginning of the relevant quarter, the Seller
shall precise to the Buyer the delivery month for the relevant
Aircraft within such quarter, subject to the Seller's then
prevailing industrial and commercial constraints. Each of such
months shall be, with respect to the corresponding Aircraft, the
"SCHEDULED DELIVERY MONTH".
9.1.2 The Seller shall give the Buyer at least * days prior written
notice of the anticipated week in which the Aircraft is scheduled
to be Ready for Delivery.
Thereafter, the Seller shall give the Buyer at least * days prior
written notice of the anticipated date upon which the Aircraft
shall be Ready for Delivery, such notification including the
schedule of the Technical Acceptance Process as set forth in
Clause 8.1.
Thereafter the Seller shall without undue delay notify the Buyer
in writing 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 * 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 xxxx of sale in the form of
Exhibit E (the "XXXX 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 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, it being understood that the Seller shall be under
no duty to store, park, insure, or otherwise protect the
Aircraft.
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 each of the Aircraft is to be
manufactured by Seller in performance of this Agreement and that
the Scheduled Delivery Month is 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". For the sake of clarity,
delays in the launch of the A350 programme or certification do
not constitute an Excusable Delay and the provisions of Clause 11
shall apply to such delays, except if such delays are due to
causes as listed hereabove.
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;
(iv) the Seller shall use all reasonable endeavors to minimize or
overcome any Excusable Delay to the extent it is reasonably
able to do so;
(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; and
*
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 * 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 * 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 * 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
Clause 10 - Page 1/3
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.
10.3.4 *
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 *
days of such occurrence, or in the case of loss or destruction
within * 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 * 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.
*
Clause 10 - Page 2/3
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 3/3
11 NON-EXCUSABLE DELAY
11.1 LIQUIDATED DAMAGES
Should any of the Aircraft not be Ready for Delivery to the Buyer
within * days after the last day of the Scheduled Delivery Month
(as varied by virtue of Clauses 2, 7 and 10) (the "DELIVERY
PERIOD") and such delay is not as a result of an Excusable Delay
or Total Loss (a "NON-EXCUSABLE DELAY"), then the Buyer shall
have the right to claim, and the Seller shall pay by way of
liquidated damages to the Buyer for each day of delay in the
Delivery commencing on the date falling * days after the last day
of the Scheduled Delivery Month, the amounts:
*
The amount of such liquidated damages shall in no event exceed
the total of US Dollars: * in respect of any one Aircraft.
*
The Buyer shall submit a claim in respect of such liquidated
damages in writing to the Seller.
11.2 *
11.3 RE-NEGOTIATION
If, as a result of Non-Excusable Delay, Delivery does not occur
in the period falling * months after the Delivery Period, the
Buyer shall have the right exercisable written notice to the
Seller given not less than fifteen (15) days nor more than one
(1) month after the expiration of the * months falling after the
Delivery Period to require from the Seller a re-negotiation of
the Scheduled Delivery Month for the affected Aircraft. Unless
otherwise agreed between the Seller and the Buyer during such
re-negotiation, the said re-negotiation shall not prejudice the
Buyer's right to receive liquidated damages in accordance with
Clause 11.1 during the period of Non-Excusable Delay.
Clause 11 - Page 1/2
11.4 TERMINATION
If, as a result of Non-Excusable Delay, Delivery does not occur
in the period falling * months after the Delivery Period and the
parties have not renegotiated the Delivery Date pursuant to
Clause 11.2, the Buyer shall have the right exercisable by
written notice to the other party, given not less than one (1)
month nor more than two (2) months after expiration of such *
months to terminate this Agreement in respect of the affected
Aircraft * In the event of such termination neither party shall
have any claim against the other in respect of such nondelivery
except that the Seller shall pay to the Buyer an amount equal to
the Predelivery Payments received from the Buyer hereunder * in
respect of such affected Aircraft, calculated from the date of
payment of such Predelivery Payment until the date of
reimbursement hereunder, and shall pay to the Buyer any amounts
due pursuant to Clause 11.1.
11.5 LIMITATION OF DAMAGES
The Buyer and the Seller agree that payment by the Seller of the
amounts due pursuant to Clause 11.1 shall be considered to be a
liquidated damages provision (Clause penale) within the meaning
of Articles 1152 and 1226 of the French Civil Code 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 2/2
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
*
(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 Engines, 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 *
Clause 12 - 1/16
*, which impair the use of such item shall constitute a
defect in design for the purpose of this Clause and be
covered by the warranty set forth in sub-Clause 12.1.1
(iii).
12.1.3 WARRANTY PERIOD
The warranties contained in Clauses 12.1.1 and 12.1.2 shall be
limited to those defects which become apparent within * 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 removal,
repair, replacement or correction of any Warranted Part which is
defective and the reinstallation thereof on the Aircraft 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 may accept Delivery of 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.
*
12.1.4.3 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.
Clause 12 - 2/16
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 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,
(iii) the labor rate to be used for the reimbursement shall be
labor rate defined in Clause 12.1.7, and
(iv) 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
Clause 12 - 3/16
facilities designated by the Seller and for the return
therefrom of a repaired or replaced Warranted Part shall be
borne by'
*
(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.
*
(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.
The conditions which have to be fulfilled for on-Aircraft
work by the Seller are the following:
(i) in the opinion of the Seller, the work necessitates the
technical expertise of the Seller as manufacturer of the
Aircraft.
*
Clause 12 - 4/16
If * of the above conditions are 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 (if applicable),
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
X.X. 00
X-00000 XXXXXXX XXXXX
XXXXXX
(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
Clause 12 - 5/16
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. 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.
(iii) SELLER'S RIGHTS
The Seller shall further 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
Clause 12 - 6/16
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 repair of a Warranted Part and to the direct
costs of materials incorporated in said repair.
- For the determination of direct labor costs only
manhours spent on removal from the Aircraft,
disassembly, inspection, repair, reassembly, and final
inspection and test of the Warranted Part and
reinstallation thereof on the Aircraft are permissible.
Any manhours required for maintenance work concurrently
being carried out on the Aircraft or Warranted Part are
not included.
- The manhours permissible above shall be multiplied by
an agreed labor rate of US Dollars *, ("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 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 * of the current
catalogue price for a replacement of the defective Warranted
Part, unless previously approved by the Seller in accordance
with sub-Clause 12.1.7 (ii).
Clause 12 - 7/16
(vii) SCRAPPED MATERIAL
The Buyer shall retain any defective Warranted Part beyond
economic repair and any defective part removed from a
Warranted Part during repair for a period of either * days
after the date of completion of repair or * days after
submission of a claim for Inhouse Warranty credit relating
thereto, whichever is longer. Such parts shall be returned
to the Seller within 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 *
or 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 Engine Manufacturer and all
applicable rules, 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 or the relevant Supplier;
(ii) any Aircraft or component, equipment, accessory or part
thereof which has been * operated in a damaged state;
Clause 12 - 8/16
(iii) any component, equipment, accessory and part from which the
trademark, name, part or serial number or other
identification marks have been removed *
*
Clause 12 - 9/16
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 * years after the Delivery of said Aircraft to the
Buyer,, 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.
12.2.3 SELLER'S PARTICIPATION IN THE COSTS
Any part or Item which the Seller is required to furnish to the
Buyer under this Service Life Policy in connection with the
correction or replacement of an Item shall be furnished to the
Buyer with the Seller's financial participation determined in
accordance with the following formula:
P = *
where:
P: financial participation of the Seller,
C: Seller's then current sales prices for the required Item or
Seller designed parts,
T: total time in months since Delivery of the Aircraft in which
the Item subject to a Failure has been originally installed,
and,
N: *
Clause 12 - 10/16
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 in accordance with the applicable Aviation Authority
requirements with respect to each item adequate to enable
determination of whether the alleged Failure is covered by
this Service Life Policy and if so to define the costs to be
borne by the Seller in accordance with Clause 12.2.3;
(ii) the Buyer shall keep the Seller informed of any significant
incidents relating to an Aircraft howsoever occurring or
recorded ;
(iii) the Buyer shall comply with the conditions of Clause
12.1.10;
(iv) the Buyer shall carry out specific structural inspection
programs for monitoring purposes as may be established from
time to time by the Seller. Such programs shall be as
compatible as possible with the 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 * 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.
Clause 12 - 11/16
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 shall be given in
writing.
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.
Clause 12 - 12/16
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 Engines 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 - 13/16
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.
Clause 12 - 14/16
12.4.5 GENERAL
12.4.5.1 All requests under this Clause 12.4 shall be directed to both the
Seller and the Supplier.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause
shall not be deemed to impose on the Seller any obligations not
expressly set forth elsewhere in this Clause 12.
12.4.5.3 All reports, recommendations, data and other documents furnished
by the Seller to the Buyer pursuant to this Clause 12.4 shall be
deemed to be delivered under this Agreement and shall be subject
to the terms, covenants and conditions set forth in this Clause
12.
12.5 WAIVER, RELEASE AND RENUNCIATION
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, ITS
SUPPLIERS AND/OR THEIR INSURERS, 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 (GARANTIE DES VICES
CACHES);
(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, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
Clause 12 - 15/16
12.6 DUPLICATE REMEDIES
The Seller shall not be obliged to provide any remedy which
duplicates any other remedy already provided to the Buyer in
respect of the same defect under any part of this Clause 12 as
such Clause may be amended, complemented or supplemented by other
contractual agreements or by other Clauses of this Agreement.
12.7 NEGOTIATED AGREEMENT
The Buyer specifically recognises that:
(i) the Specification has been agreed upon after careful
consideration by the Buyer using its judgment as a
professional operator of and maintenance provider with
respect to aircraft used in public transportation and as
such is a professional within the same industry as the
Seller;
(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 - 16/16
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 Engines; or
(ii) parts not supplied pursuant to a Supplier Product Support
Agreement; or
(iii) software not created by the Seller.
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, quantity and delivery schedule of Air
Transport Association ("ATA") and Non ATA Technical Data to be
provided under this Agreement are outlined 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
Engines or two (2) different Aircraft models are selected.
14.2.3 The Buyer shall indicate to the Seller the Fleet Serial Number
allocated to each Aircraft corresponding to the Aircraft rank in
the Delivery schedule set forth in Clause 9.1.1 hereof within
forty-five (45) days after execution of this Agreement. The
subsequent allocation of Fleet Serial Numbers to Manufacturer's
Serial Numbers for the purpose of producing customized Technical
Data shall not constitute any property, insurable or other
interest of the Buyer whatsoever in any Aircraft prior to the
Delivery of such Aircraft as provided for in this Agreement.
The affected customized Technical Data are:
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- Aircraft Wiring Lists.
Clause 14 - 1/20
14.3 INTEGRATION OF EQUIPMENT DATA
14.3.1 SUPPLIER EQUIPMENT
Information relating to Supplier equipment which is installed on
the Aircraft by the Seller shall be introduced into the
customized Technical Data to the extent necessary for the
comprehension of the systems concerned, at no additional charge
to the Buyer for the Technical Data basic issue.
14.3.2 BUYER FURNISHED EQUIPMENT
14.3.2.1 The Seller shall introduce Buyer Furnished Equipment data, for
equipment which is installed on the Aircraft by the Seller, into
the customized Technical Data at no additional charge to the
Buyer for the Technical Data basic issue, provided such data is
provided in accordance with the conditions set forth in Clauses
14.3.2.2 through 14.3.2.5 hereunder.
14.3.2.2 The Buyer shall supply the data related to Buyer Furnished
Equipment to the Seller at least six (6) months before the
scheduled delivery of the customized Technical Data. The Buyer
Furnished Equipment data supplied to the Buyer by the Seller
shall be in English Language.
14.3.2.3 The supplied Buyer Furnished Equipment data shall be established
in compliance with ATA 2200 standard Specification in the
applicable Revision.
Subsequent revisions of the ATA Specification shall be considered
as applicable.
14.3.2.4 The Buyer and the Seller shall agree on the requirements for the
provision to the Seller of BFE data for "on-aircraft
maintenance", such as but not limited to timeframe, media and
format, for integration of such data into Technical Data, with
the aim of managing the BFE data integration process in an
efficient, expedite and economic manner.
14.3.2.4 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.
14.3.2.7 In the event of the Seller providing directly certain items which
are considered as Buyer Furnished Equipment according to the
Specification pursuant to and in accordance with Clause 18.1.4,
this Clause 14.3.2 shall remain fully applicable to the data
related to such Buyer Furnished Equipment.
Clause 14 - 2/20
14.4 DELIVERY
14.4.1 Technical Data are delivered on-line and/or off-lline, as set
forth in Exhibit G hereto.
14.4.2 In the event of the Technical Data and corresponding revisions
being delivered in a format other than on-line, the Technical
Data and corresponding revisions to be supplied by the Seller
shall be sent to one address only as advised by the Buyer.
14.4.3 In such case, 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.
14.4.4 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.
14.4.5 It shall be the responsibility of the Buyer to coordinate and
satisfy local Aviation Authorities' needs for Technical Data.
14.5 REVISION SERVICE
Unless otherwise specifically stated, revision service shall be
provided on a free of charge basis for a period of * years after
Delivery of the last firmly ordered Aircraft covered under this
Agreement.
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 production and methods of transmission
where beneficial and economical. The Buyer accepts to consider
any new development proposed by the Seller for possible
implementation.
Clause 14 - 3/20
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,
- 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.
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 (COC) 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 (COC).
Clause 14 - 4/20
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 Seller shall promptly notify the Buyer and shall
inform the Buyer with respect to the conduct and/or settlement of
any such claim. The Buyer agrees to reimburse the Seller for all
payments or settlements made in respect of such injury, loss or
damage including any expenses incurred by the Seller in defending
such claims.
14.9.3.4 In the event of the Buyer selling, leasing or otherwise
transferring the Aircraft to which the COC data apply, the Buyer
hereby agrees that, unless the COC data are removed from the
Technical Data at the Buyer's request and expense prior to such
transfer:
(i) the Buyer shall remain fully liable for the COC data and any
and all effects of their incorporation, as set forth in this
Clause 14.9;
(ii) the Seller may disclose the COC data to the subsequent
owner(s) or operator(s) of the transferred Aircraft;
(iii) it shall be the sole responsibility of the Buyer to notify,
or cause to be notified, the subsequent owner(s) or
operator(s) of the existence of the such COC data in the
Technical Data applicable to the corresponding Aircraft.
The Seller hereby disclaims any and all liabilities whatsoever
for the COC data in the event of transfer, sale or lease as set
forth hereabove.
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 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 three (3) copies to be used on
three (3) computers. 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.
Clause 14 - 5/20
14.10.2 AIRN@V FAMILY
Certain Technical Data are provided on DVD and/or on line under
licence conditions as defined in Appendix A to this Clause.
The AirN@v Family covers several Technical Data domains, with the
following AirN@v Family products:
- AirN@v Maintenance,
- AirN@v Engineering,
- AirN@v Planning,
- AirN@v Repair,
- AirN@v Shop.
Details of the documents included in such products are set forth
in Exhibit G.
The licence to use AirN@v Family products shall be granted free
of charge for the Aircraft for as long as the revisions of such
Technical Data are free of charge in accordance with Clause 14.5.
At the end of such period, the yearly revision service for AirN@v
Family products 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|WORLD CUSTOMER PORTAL
14.10.3.1 The Buyer shall be entitled to obtain access to a wide range of
information and services, including Technical Data, available in
the secure zone of Airbus' Customer Portal Airbus|Wor1d
("AIRBUS|WORLD").
Access to the secure zone of Airbus|World, which is reserved to
Airbus owners and operators (the "SECURE ZONE"), shall be subject
to the prior signature by the Buyer of the "General Terms and
Conditions of Access to and Use of Airbus Secure Area of Customer
Portal" (hereinafter the "GTC").
A description of the Basic Services, which are available to the
Buyer in the Secure Zone and are provided to the Buyer free of
charge after signature of the GTC, for as long as the Buyer
operates the Aircraft, is set forth in Appendix B to this Clause
14.
Furthermore, although part of the data available on Airbus|World
is neither sensitive nor confidential and is also available to
the general internet public in the public zone of the portal (the
"PUBLIC ZONE"), it is however recommended that for simplicity of
access the Buyer find this information in the Secure Zone.
14.10.3.2 On-Line Technical Data
14.10.3.2.1 The Technical Data defined in Exhibit "G" as being provided
on-line shall be made available to the Buyer through the Secure
Zone.
Such provision shall be at no cost as long as revision service
for such Technical Data is free of charge in accordance with
Clause 14.5.
14.10.3.2.2 The list of the Technical Data available on-line may be extended
from time to time.
Clause 14 - 6/20
For any Technical Data which is or becomes available on-line, the
Seller reserves the right to suppress other formats for the
concerned Technical Data.
14.10.3.3 Access to the Secure Zone shall be granted free of charge for a
maximum of * of the 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 For the sake of clarification, it is hereby specified that
Technical Data accessed through the Secure Zone - which access
shall be covered by terms and conditions set forth in the GTC -
shall remain subject to the conditions of this Clause 14.
In addition, should the Secure Zone provide access to Technical
Data in software format, the use of such software shall be
further subject to the conditions of Appendix A hereto.
14.11 WARRANTIES
14.11.1 The Seller warrants that the Technical Data are prepared in
accordance with the state of art at the date of their conception.
Should any Technical Data prepared by the Seller contain error,
omission, 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, ITS
SUPPLIERS AND/OR THEIR INSURERS, 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 (GARANTIE DES VICES
CACHES);
(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
Clause 14 - 7/20
TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 14.11.2, "THE SELLER" SHALL
INCLUDE THE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE
INSURERS.
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.
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 - 8/20
APPENDIX A TO CLAUSE 14
APPENDIX A TO CLAUSE 14
LICENCE FOR USE
OF
SOFTWARE
Clause 14 - 9/20
APPENDIX A TO CLAUSE 14
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.
Clause 14 - 10/20
APPENDIX A TO CLAUSE 14
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
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:
- * 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
have 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 (except if Seller has consented to other
usages), 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;
- not 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;
Clause 14 - 11/20
APPENDIX A TO CLAUSE 14
- 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;
- not permit any third-party to use the Software in any
manner, including but not limited to, any outsourcing, loan,
commercialization of the Software or commercialization by
merging the Software into another software or adapting the
Software, without prior written consent from the Licensor.
The Licensor, *, shall be entitled, subject to providing
reasonable prior written notice thereof to the Licensee and
provided the same will not interfere with the Licensee's
commercial operation, 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 (unless otherwise
provided for in this Agreement).
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:
- promptly 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.
Clause 14 - 12/20
APPENDIX A TO CLAUSE 14
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.
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 nonconformity 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 (GARANTIE DES VICES
CACHES):
(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 NONCONFORMITY OR DEFECT IN ANY SOFTWARE
DELIVERED UNDER THIS SOFTWARE LICENCE.
FOR THE PURPOSES OF THIS CLAUSE 11, "THE LICENSOR" SHALL INCLUDE
THE
Clause 14 - 13/20
APPENDIX A TO CLAUSE 14
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: 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.
Clause 14 - 14/20
APPENDIX A TO CLAUSE 14
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 Members or 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 - 15/20
APPENDIX B TO CLAUSE 00
XXXXXXXX X TO CLAUSE 14
AIRBUS|WORLD CUSTOMER PORTAL
SECURE ZONE
BASIC SERVICES
Clause 14 - 16/20
APPENDIX B TO CLAUSE 14
1. GENERAL SERVICES
1.1 GCS GENERAL INFORMATION
Providing general information such as:
- Airbus Abbreviations Dictionary (AAD)
- Airbus Monitored Retrofit Campaign
- Engineering and Technical Services (Contact List)
- Events & Symposium
- On-line Services General Information
- Training Catalogues
- Monthly Service Report
- Tutorials
- Spares Information
- Fast Magazine
- Upgrade Services
1.2 FTP SITE
This service provides access on an ad-hoc basis to specific
documents or data that first need to be downloaded onto the
user's local workstation for display and use, after prior
arrangement with the corresponding Airbus technical counterpart.
1.3 "WHAT IS NEW" FACILITY AND E-MAIL NOTIFICATION
The "What is New function" allows a user to be informed of new
information put On-Line within a specific date range (default
value is between user's last login and "now")
This facility is applicable to following services:
- XXXX (Drawings)
- AOG RG
- CAWA
- ETDS
- General Information
- SPSA
- TPPO
- VIM
As a complementary service to the "What is New facility", a
subscription to e-mail notification is available for some mainly
used documents.
This function provides information of new data on-line, with
direct access links, via e-mail, according to the user's
subscription.
Clause 14 - 17/20
APPENDIX B TO CLAUSE 14
2. TECHNICAL DATA
2.1 ETDS (ENGINEERING TECHNICAL DOCUMENTATION) SERVICE
The service provides access via a document index to the contents
of:
- Service Bulletins - all SB in PDF, but SB issued after July
1997 in PDF and SGML
- Technical Follow-Up (TFU) - all
- Modification Information Document (MID) - all
- All Operators Telex (AOT) - all
- Operators Information Telex (OIT) - all
- Flight Operations Telex (FOT) - all
- Service Information Letter (SIL) - all
- Consignes de Navigabilite (CN) - all
- Advisory Directives (AD) - all
In addition, links between such documents are available through
the service.
Documents can be printed or downloaded, depending of their
electronic format.
SBs available in SGML format can be downloaded in SGML.
Printing will be based on PDF format.
2.2 STDO (SUPPLIER TECHNICAL MANUALS) SERVICE
The Supplier Technical Manuals service provides an on-line
consultation of Suppliers' component maintenance manuals (CMMv)
available in PDF.
It allows access to Suppliers' CMMs that are effective for the
Buyer's fleet.
Through the application interface, users are able to:
- Search documents by Aircraft type, ATA references, document
type, Supplier code and Part number;
- Access, print and download via the PDF reader plug in
(Acrobat Reader) the available release of the Suppliers'
technical documentation.
Clause 14 - 18/20
APPENDIX B TO CLAUSE 14
3. SPARE PARTS AND REPAIR
3.1 ARG (AOG AND REPAIR GUIDE) SERVICE
Access to vendor and repairs stations by P/N.
3.2 ASDS (AIRBUS SUPPORT DATA FOR SUPPLIER) SERVICE
This service offers for all Airbus aircraft:
- Part number information such as price, lead-time,
manufacturer code, stock status and location
- Part number interchangeability
- Single purchase order status
- Useful information such as contact details, help function
and e-mail
- Internet parts ordering
- Information link to selected in-house forwarders
- Support guide and excess inventory list
3.3 VIM (VENDOR INFORMATION MANUAL) SERVICE
The service offers:
- List of Airbus vendors with location, fax, phones, addresses
and contacts
- List of repairs stations
- List of equipment manufactured by the vendors
3.4 SPSA (SUPPLIER PRODUCT SUPPORT AGREEMENTS) SERVICE
Information relative to agreements negotiated between Airbus and
Aircraft Equipment Suppliers. DMC and MTBUR are available for the
main Suppliers
3.5 SPARES SERVICES
This service is already available in an autonomous mode through
the Spares Portal (xxxx://xxxxxx.xxxxxx.xxx).
The service offers for all AIRBUS aircraft:
- Part number information such as price, lead-time,
manufacturer code, stock status and location
- Part number interchangeability
- Single purchase order status
- Useful information such as contact details, help function
and e-mail
- Internet parts ordering
- Information link to selected in-house forwarders
- Support guide and excess inventory list
Clause 14 - 19/20
APPENDIX B TO CLAUSE 14
4. WARRANTY
4.1 CAWA (CONTRACTS AND WARRANTY ADMINISTRATION) SERVICE
The Warranty Claim Service proposes four main functions:
- Warranty claims booking
- Consultation of the warranty claims status
- Consultation of statistics on response time regarding
closed/open files
- Consultation of warranty guide
5. CUSTOMIZE & DELIVER
5.1 ACCL (A/C COMPARISON LIST) service
Aircraft configuration comparison list, 6 months and 1 month
before Delivery
5.2 CDIS (CUSTOMIZATION AND DELIVERY INFORMATION) SERVICES
The following service provides access to:
- RFC (Request For Change)
- AIR (Aircraft Inspection Report)
- SCN (Specification change Notices)
- CCR (Customer Change Register)
- Concessions
Clause 14 - 20/20
15 SELLER REPRESENTATIVES
15.1 CUSTOMER SUPPORT DIRECTOR
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 The Seller shall provide free of charge the services of Seller
customer services representatives ("SELLER'S REPRESENTATIVES")
acting in an advisory capacity as defined in Appendix A of this
Clause 15.
15.2.2 In the event of a need for non-routine technical assistance, the
Buyer shall have non-exclusive access to the Seller's
Representatives closest to the Buyer's main base after the end of
the assignment of the Seller's Representatives referred to in
Appendix A of this Clause 15. A list of the contacts for the
Seller's Representatives closest to the Buyer's main base shall
be provided to the Buyer.
15.2.3 The Seller shall cause similar services to be provided by
competent representatives of the Engines Manufacturer and by
Supplier representatives when reasonably necessary and
applicable.
15.2.4 The Seller shall provide to the Buyer an annual written
accounting of the consumed man-months and any remaining man-month
balance. Such accounting shall be deemed as final and acceptable
to the Buyer unless the Seller receives written objection from
the Buyer within thirty (30) days of receipt of such accounting.
15.2.5 If requested by the Buyer, Seller Representative services
exceeding the allocation specified in Appendix A of this Clause
15 may be provided by the Seller subject to terms and conditions
to be mutually agreed.
15.3 BUYER'S SERVICE
15.3.1 From the date of arrival of the first of the Seller's
Representatives and for the duration of the assignment, the Buyer
shall provide free of charge a suitable lockable office,
conveniently located with respect to the Buyer's maintenance
facilities, with complete office furniture and equipment
including telephone and facsimile connections for the sole use of
the Seller's Representatives.
Should the Buyer already provide such facilities through another
Purchase Agreement with the Seller, the above Buyer's service may
not be provided if they do not appear necessary.
15.3.2 The Buyer shall reimburse the Seller the costs for the initial
and termination assignment travel of the Seller's Representatives
of one (1) confirmed ticket, Business Class, to and from their
place of assignment and TOULOUSE, FRANCE.
15.3.3 The Buyer shall also provide at no charge to the Seller air
transportation, confirmed reservations for the annual vacation of
the persons mentioned in sub- Clause 15.2.1 above to and from
their place of assignment and the airport on the
Clause 15 - 1/3
Buyer's network nearest to TOULOUSE, FRANCE.
15.3.4 Should the Buyer request any of the Seller's Representatives
referred to in Clause 15.2 above, to travel on business to a city
other than his usual place of assignment, the Buyer shall be
responsible for all related transportation costs and expenses.
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.
15.4 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 * 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 * 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 firm
Aircraft ordered under this Agreement.
16.2.2.2 With respect to Flight Operations Training, the quantity of
training allocated to each Aircraft shall be provided up to one
(1) year after Delivery of each corresponding Aircraft.
16.2.3 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, or in Hamburg, Germany (each the "SELLER'S
TRAINING CENTER") or one of its affiliated training centers in
Miami, U.S.A., or any other future Seller's training center in
Europe or the Americas (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.
16.3.3.1 Upon the Buyer's request, the Seller may also provide certain
training at a location other than the Seller's Training Centers
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.
16.3.3.2 If the training as set forth in Clause 16.3.3.1 above is either
an Airbus EASA - Part 147 (for maintenance training) or a Type
Rating Training Organisation (TRTO) (for flight operation
training) approved course, the Buyer shall provide access to its
training facilities to the Seller's and the relevant Aviation
Authorities' representatives for the necessary approval of such
facilities for the training.
Clause 16 - 1/21
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
between nine (9) and 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 course syllabi,
training aids and training equipment necessary for the
organisation of the training courses; however, for the
purpose of performing training, training equipment does not
include aircraft;
(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 Centers or Affiliated
Training Centers shall be free-of-charge. Training data and
documentation shall be marked "FOR TRAINING ONLY" and as
such are supplied for the sole and express purpose of
training;
(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 Centers or
Affiliated Training Centers at no charge to the Buyer;
The above shipment shall be delivered Free Carrier ("FCA")
to the airport closest to the location at which the training
actually takes place, as the term Free Carrier ("FCA") is
defined by publication 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 Seller's training courses are provided by the Seller's
instructors, the Seller shall deliver a Certificate of
Recognition, a Certificate of Course Completion or an
Attestation, as applicable, at the end of any such training
course. Any such certificate shall not represent authority or
qualification by any Aviation Authorities but may be presented to
such Aviation Authorities in order to obtain relevant formal
qualification.
In the event of the training courses being provided by a training
provider selected by the Seller, the Seller shall cause such
training provider to deliver a Certificate of Recognition, a
Certificate of Course Completion or an Attestation, as
applicable, at the end of any such training course. Any such
certificate shall not represent
Clause 16 - 2/21
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 * days prior
to the training, a cancellation charge of * of Airbus Customer
Services Catalogue price shall be applied.
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 "Standard 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 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.
Clause 16 - 3/21
16.6 LOGISTICS
16.6.1 TRAINEES
16.6.1.1 The Seller shall provide *: for local transportation to the
Seller's Training Centers or Affiliated Training Centers.
16.6.1.2 The Seller shall provide * for local transportation to the
Seller's Training Centers or Affiliated Training Centers.
16.6.1.2 Living and travel 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 Centers or Affiliated Training Centers.
In the event of training being provided by the Seller's
instructors at any location other than the Seller's Training
Centers 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 directly 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 Centers 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.
Clause 16 - 4/21
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 Centers 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 * captain and * first officer, as defined in Appendix
A to this Clause 16. The training manual used shall be the
Seller's Flight Crew Operating Manual (FCOM), except for base
Flight training, for which the Buyer's customized FCOM shall be
used.
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 * session of * minutes per pilot, according to the
related Airbus training course definition.
16.7.1.2.2 In the event of it being necessary to ferry the 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.
16.7.2 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
Clause 16 - 5/21
Buyer's Aircraft, can be given at the earliest * 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 TRANSITION TYPE RATING INSTRUCTOR (TRI) COURSE
The Seller shall provide transition 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.
16.7.6 During any and all flights performed in accordance with this
Clause 16.7, 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.
16.8 MAINTENANCE TRAINING
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 Centers or Affiliated Training Centers.
In the event of practical training on aircraft being requested by
the Buyer, such practical training can be organized with the
assistance of the Seller, in accordance with Clause 16.8.1
hereunder.
16.8.1 PRACTICAL TRAINING ON AIRCRAFT
IF the practical training does not need to be covered by an EASA
- Part 147 (or equivalent) certificate, the Seller may assist the
Buyer in organizing such practical training on aircraft, at the
Buyer's expense.
In the event of the Buyer requiring a full EASA - Part 147
certificate from the Seller, the practical training on aircraft
shall be conducted by the Seller, at the Buyer's expense, in a
EASA - Part 145 facility approved and selected by the Seller.
In the event of the Buyer requiring such practical training to be
conducted at the Buyer's EASA - Part 145 (or equivalent) approved
facilities, such training shall be subject to prior approval by
the Seller of the facilities at which the training is to be
Clause 16 - 6/21
conducted.
The provision of an instructor by the Seller for the practical
training shall be deducted from the trainee days allowance
defined in Appendix A to this Clause 16, subject to the
conditions detailed in Paragraph 3.2 thereof.
The 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 PROPULSION SYSTEM MANUFACTURER TRAINING
*
Upon the Buyer's request, the Seller shall provide to the Buyer
the list of the maintenance and overhaul training courses (the
"Supplier Training Catalog") provided by major Suppliers and the
applicable Engines Manufacturer on their products.
16.10 TRAINING AIDS FOR THE BUYER'S TRAINING ORGANISATION
16.10.1 The Seller shall provide to the Buyer training aids, including
the AIRBUS COMPUTER BASED TRAINING (AIRBUS CBT), as used in the
Seller's Training Centers, and the VIRTUAL AIRCRAFT (WALK AROUND
AND COMPONENT LOCATION), free of charge as defined in Appendix A
to this Clause 16.
The Airbus CBT and training aids supplied to the Buyer shall be
similar to those used in the Seller's Training Centers for the
training provided for the Buyer. The Airbus CBT and Virtual
Aircraft in use at the Seller's Training Centers are 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 * after
delivery of the Airbus CBT or the Virtual Aircraft to the Buyer
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
Clause 16 - 7/21
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 * 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 LICENCES
16.10.4.1 AIRBUS CBT LICENSE
16.10.4.1.1 The Seller shall grant the Buyer a Licence to use the Airbus CBT,
under conditions defined in Appendix C to this Clause 16.
16.10.4.1.2 Supply of sets of CBT Courseware, as defined in Appendix C, and
additional to those indicated in Appendix A, as well as any
extension to the Licence of such CBT Courseware, shall be subject
to terms and conditions to be mutually agreed.
16.10.4.2 VIRTUAL AIRCRAFT LICENSE
16.10.4.2.1 The Seller shall grant the Buyer a Licence to use the Virtual
Aircraft, under conditions defined in Appendix C to this Clause
16. For the purpose of such Licence, the term "Airbus CBT" as
used in such License shall mean the "Virtual
Clause 16 - 8/21
Aircraft".
16.10.4.2.2 Supply of sets of Virtual Aircraft Software, as defined in
Appendix C, and additional to those indicated in Appendix A, as
well as any extension to the Licence of such Virtual Aircraft
Software, shall be subject to terms arid conditions to be
mutually agreed.
16.10.5 The Seller shall not be responsible for and hereby disclaims any
and all liabilities resulting from or in connection with the use
by the Buyer of the Airbus CBT, the Virtual Aircraft and any
other training aids provided under this Clause 16.10.
16.11 PROPRIETARY RIGHTS
The Seller's training data and documentation, Airbus CBT, Virtual
Aircraft and training aids are proprietary to the Seller and/or
its Affiliates and/or its suppliers and the Buyer agrees not to
disclose the content of the courseware or any information or
documentation provided by the Seller in relation to training, in
whole or in part, to any third party without the prior written
consent of the Seller.
16.12 INDEMNITIES AND INSURANCE
INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE
TO THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.
THE BUYER WILL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE
CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.
Clause 16 - 9/21
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 ten (10) Aircraft,
unless otherwise specified.
1. FLIGHT OPERATIONS TRAINING
1.1 FLIGHT CREW TRAINING (STANDARD TRANSITION COURSE OR CROSS CREW
QUALIFICATION (CCQ) AS APPLICABLE)
The Seller shall provide flight crew training (standard
transition course or CCQ as applicable) free of charge for * of
the Buyer's flight crews per firmly ordered Aircraft,
*
1.2 FLIGHT CREW LINE INITIAL OPERATING EXPERIENCE
The Seller shall provide to the Buyer pilot instructor(s) free of
charge for a period of * pilot instructor months.
1.2.1 The maximum number of pilot instructors present at any one time
shall be limited to * pilot instructors.
1.3 INSTRUCTOR CABIN ATTENDANTS' FAMILIARIZATION COURSE
The Seller shall provide to the Buyer instructor cabin
attendants' training free of charge for * of the Buyer's
instructor cabin attendants.
1.4 PERFORMANCE / OPERATIONS COURSE(S)
1.4.1 The Seller shall provide to the Buyer * 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 TRANSITION TYPE RATING INSTRUCTOR (TRI) COURSE
The Seller shall provide to the Buyer transition type rating
instructor training (transition or CCQ, as applicable) free of
charge for * of the Buyer's flight instructors.
Clause 16 - 10/21
APPENDIX A TO CLAUSE 16
2 MAINTENANCE TRAINING
2.1 MAINTENANCE TRAINING COURSES
2.1.1 The Seller shall provide to the Buyer * trainee days of
maintenance training free of charge for 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.
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 * trainees per firmly ordered Aircraft and to a
maximum of * courses in total.
2.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
The Seller shall provide to the Buyer * maintenance instructor(s)
at the Buyer's base free of charge for * period(s) of * week(s)
each, up to the "A" check.
3 TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
3.1 For instruction at the Seller's Training Centers or Affiliated
Training Centers: one (1) day of instruction for one (1) trainee
equals one (1) trainee day. The number of trainees originally
registered at the beginning of the course shall be counted as the
number of trainees to have taken the course.
3.2 For instruction outside of the Seller's Training Centers or
Affiliated Training Centers: one (1) day of instruction by one
(1) Seller instructor equals the actual number of trainees
attending the course or a minimum of twelve (12) trainee days.
3.3 For practical training, one (1) day of instruction by one (1)
Seller instructor equals the actual number of trainees attending
the course or a minimum of six (6) trainee days.
3.4 In the event of training being provided outside of the Seller's
Training Centers 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.
Clause 16 - 11/21
APPENDIX A TO CLAUSE 16
4 TRAINING AIDS FOR BUYER'S TRAINING ORGANISATION
The Seller shall provide to the Buyer free of charge:
- * Airbus CBT (flight and/or maintenance) related to the
Aircraft type(s) as covered by this Agreement (including *
of CBT Courseware and * of CBT Software for flight and * of
CBT Courseware and * of CBT Software for maintenance, as
applicable). The detailed description of the Airbus CBT
shall be provided to the Buyer at the Training Conference;
- * Virtual Aircraft (Walk around and Component Location)
related to the aircraft type (s) as covered in this
Agreement.
- * of training documentation on CD-ROM;
- * CD-ROM of cockpit panels for training.
Clause 16 - 12/21
APPENDIX B TO CLAUSE 16
APPENDIX "B" TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate Aviation Authorities or the
specific airline policy of the trainee demand greater or additional
requirements, they shall apply as prerequisites.
FLIGHT CREW STANDARD TRANSITION COURSES
CAPTAIN PREREQUISITES:
- Previously qualified on JAR/FAR/CS 25 aircraft and commercial
operations
- Valid and Current Airline Transport Pilot License (ATPLY)
- Previous command experience
- Fluency in English (able to write, read and communicate at an
adequately understandable level in English language)
- Jet experience
- Flight time:
- 1,500 hours as pilot
- 1,000 hours on JAR/FAR/CS 25 aircraft
- 200 hours experience as airline, corporate or military transport
pilot
FIRST OFFICER PREREQUISITES:
- Previously qualified on JAR/FAR/CS 25 aircraft and commercial
operations
- Aircraft and commercial operations valid and current CPL (Commercial
pilot license) with Instrument rating,
- Fluency in English (able to write, read and communicate at an
adequately understandable level in English language)
- Jet experience
- Flight time:
- 500 hours as pilot
- 300 hours on JAR/FAR/CS 25 aircraft
- 200 hours experience as airline, corporate or military transport
pilot
If the Trainee does not speak English or is not fluent enough to follow the
Standard Transition course, he shall follow the Adapted language transition and
provide a translator as indicated by the Seller.
If no Jet experience, both CAPTAIN and/or FIRST OFFICER must follow before
entering the transition course, a dedicated "Jet Familiarization entry level
course". Such course(s), if required, shall be at the Buyer's expense.
Clause 16 - 13/21
APPENDIX B TO CLAUSE 16
FIRST TYPE RATING COURSE
This course is designed for Ab initio pilots who do not hold an aircraft type
rating on their pilot license
PILOT PREREQUISITES
- Valid and current CPL (commercial pilot license)
- Valid and current Instrument Rating on multi engine aircraft
- APTLY written examination
- Fluency in English (able to write, read and communicate at an
adequately understandable level in English language)
- Flight experience:
- 220 hours as pilot
- 100 hours as pilot in command (PIC)
- 25 hours on multi engine aircraft (up to 10 hours can be
completed in a simulator)
In addition to the above conditions and in accordance to the JAR Flight Crew
Licensing (FCL) and the Airbus Training Policy, a pilot applying for a first
type rating must have followed either an approved JAR Multi Crew Cooperation
(MCC) program or regulatory equivalent or the "Airbus Entry Level Training (ELT)
program" (combined MCC and Jet familiarization course). Such course, if
required, shall be at the Buyer's expense.
CCQ ADDITIONAL PREREQUISITES
In addition to the prerequisites set forth for the Flight Crew Standard
Transition Course, both CAPTAIN and FIRST OFFICER must:
- be qualified and current on the base aircraft type
- have 150 hours minimum and 3 months minimum of operations on the base
aircraft type.
TRI COURSE ADDITIONAL PREREQUISITES
In addition to the prerequisites set forth for the Right Crew Standard
Transition Course, it is the responsibility of the Buyer to:
- select instructor candidate(s) with airmanship and behaviour
corresponding to the role and responsibility of an airline instructor
- designate instructor candidate(s) with the Airbus prerequisite, which
corresponds to the JAR requirements (ref JAR - FCL 1 - Requirements/
Subparts H - Instructor rating (Aeroplane)
Clause 16 - 14/21
APPENDIX B TO CLAUSE 16
PERFORMANCE AND OPERATIONS PERSONNEL PREREQUISITES
The Buyer's performance and operations personnel shall be fluent in English
(able to write, read and communicate at an adequately understandable level in
English language).
All further detailed prerequisites shall be provided by the Seller to the Buyer
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 (able to write, read and
communicate at an adequately understandable level in English language)
adequate to be able to follow the training (If this is not the case, the
Buyer shall assign a minimum of one (1) translator for eight (8) trainees).
- Technical experience in the line or/and base maintenance activity of
commercial jet aircraft
Additional prerequisites for Aircraft Rigging Course
Qualification as line or line and base mechanic on one type of Airbus aircraft
family
Additional prerequisites for Maintenance Initial Operating Experience
Qualification as line or line and base mechanic on the concerned Airbus aircraft
type (for Course)
MAINTENANCE TRAINING DIFFERENCE COURSES ADDITIONAL PREREQUISITES
In addition to the prerequisites set forth for Maintenance Personnel, the
personnel shall be current and operating on the base aircraft
Clause 16 - 15/21
APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINING
CLAUSE 16 - 16/21
APPENDIX C TO CLAUSE 16
LICENCE FOR USE OF AIRBUS COMPUTER BASED TRAINTNG (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.
2 GRANT
Clause 16 - 17/21
APPENDIX C TO CLAUSE 16
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 - 18/21
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:
- * 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 have 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 (except if the Seller has consented to other
usages), 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. Intranet or
Extranet;
- not alter, reverse engineer, modify or adapt the Airbus CBT,
or integrate all or part of the Airbus CBT in any manner
whatsoever into another software product;
- not correct the Airbus CBT, except that such correction
right may exceptionally be granted to the Buyer by the
Seller in writing;
- not translate, disassemble or decompile the Airbus CBT
Software or create a software product derived from the
Airbus CBT Software;
- not attempt to or authorise a third party to discover or
re-write the Airbus CBT source codes in any manner
whatsoever;
- not delete any identification or declaration relative to the
intellectual property rights, trademarks or any other
information related to ownership or intellectual property
rights provided in the Airbus CBT by the Seller;
- not pledge, sell, distribute, grant, sub-license, 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 and provided the same
will not interfere with the Buyer's commercial operations, 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 - 19/21
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
copyright 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 - 20/21
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 THE AIRBUS
CBT LICENCE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER
HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS
AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER,
ITS SUPPLIERS AND/OR THEIR INSURERS, EXPRESS OR IMPLIED, ARISING
BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN THE AIRBUS CBT DELIVERED UNDER THIS AGREEMENT INCLUDING BUT
NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES
CACHES);
(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
OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY OR PART THEREOF OR THE AIRBUS CBT DELIVERED
HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR
LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT
OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN THE AIRBUS CBT
DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 8.2, "THE SELLER" SHALL INCLUDE
THE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
Clause 16 - 21/21
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 h
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, and shall promptly notify the Buyer of such
refusal.
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 de I'entrepot 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
00000 XXXXXXX
XXXXXXX XXXXXXXX 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, directly 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 * days, or
unapproved within * 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
Clause 18 - Page 2/3
install such equipment. The Buyer may also elect to have the
Aircraft so delivered, provided it is in the condition
otherwise required by this Agreement.
18.4 TITLE AND RISK OF LOSS
Title to and risk of loss of any BFE shall at all times remain
with the Buyer except that risk of loss (limited to cost of
replacement of said BFE and excluding in particular loss of use)
shall be with the Seller for as long as such BFE shall be under
the care, custody and control of the Seller.
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 Affiliates, their respective
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 Affiliates, Suppliers, their
respective 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 Affiliates, Suppliers, their
respective 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 Affiliates, subcontractors,
Suppliers, their respective 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 Affiliates, their respective
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 ail 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) consecutive 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 * 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 under
any * agreement between the Buyer or any of its Affiliates and
the Seller or any of its Affiliates (the "Other Agreement"): *
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 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 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 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 reasonably acceptable to the Seller,
taking into account then applicable market practice.
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 reasonably acceptable to the Seller,
taking into account the then applicable market practice.
21.2 ASSIGNMENTS BY SELLER
The Seller may at any time, with the prior written consent of the
Buyer, which shall not be unreasonably withheld, 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.
Seller's address for notices is:
AIRBUS
Attn. To V. P. Contracts
1 Rond-Point Xxxxxxx Xxxxxxxx
31707 Blagnac Cedex
France
Buyer's address for notices is:
TAM - LINHAS AEREAS S.A.
Attn. Contracts Director
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO-SP.
BRAZIL
or such other address or such other person as the party receiving
the notice or 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.
Clause 22 - Page 1/4
22.4 LAW AND JURISDICTION
22.4.1 This Agreement shall be governed by and construed in accordance
with the laws of France.
22.4.2 Any dispute arising out of or in connection with this Agreement
shall be within the exclusive jurisdiction of the Tribunal de
Commerce of Paris.
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 this Agreement shall be in English.
Clause 22 - Page 2/4
22.9 COUNTERPARTS
This Agreement has been executed in two (2) original copies.
Notwithstanding the above, this Agreement may be executed by the
parties in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts
shall together constitute one and the same Agreement.
22.10 CONFIDENTIALITY
This Agreement including any Exhibits, other documents or data
exchanged between the Buyer and the Seller for the fulfilment of
their respective obligations under the Agreement 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, both parties agree:
- 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 written consent of
the other party hereto.
- that any and all terms and conditions of the transaction
contemplated in this Agreement are strictly personal and
exclusive to the Buyer, including in particular, but not
limited to, the Aircraft pricing (the "Personal
Information"). The Buyer therefore agrees to notify the
Seller reasonably in advance of any required disclosure of
Personal Information to financial institutions, including
operating lessors, investment banks and their agents or
other relevant institutions for aircraft sale and leaseback
or any other Aircraft or Predelivery Payment financing
purposes (the "Receiving Party"), and if requested by the
Seller, to consult with the Seller for a reasonable period
of time in relation thereto.
Without prejudice to the foregoing, any disclosure of Personal
Information to a Receiving Party shall be subject to written
agreement between the Buyer and the Seller, including in
particular, but not limited to:
(i) the contact details of the Receiving Party,
(ii) the extent of the Personal Information subject to
disclosure,
(iii) the Aircraft pricing to be provided to the Receiving Party.
Furthermore, the Buyer and the Seller shall use their best
reasonable efforts to limit the disclosure of the contents of
this Agreement to the extent legally permissible in any filing
required to be made by the Buyer and the Seller with any
governmental or regulatory agency. The Buyer and the Seller agree
that prior to any such disclosure or filing, the Seller and the
Buyer shall jointly review and agree on the terms and conditions
of the document to be filed or disclosed.
The provisions of this Clause 22.10 shall survive any termination
of this Agreement for a period of five (5) years.
Clause 22 - Page 3/4
IN WITNESS WHEREOF this Agreement was entered into the day and year first above
written.
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Clause 22 - Page 4/4
EXHIBIT A
EXHIBIT A
SPECIFICATION
The A350-900 and A350-800 Standard Specifications are contained in a separate
CD-ROM.
- Exhibit A - Page 1/1
APPENDIX I TO EXHIBIT A
TAM A35O-800 SCN DEFINITION
*
3
APPENDIX I TO EXHIBIT A
TAM A350-800 SCN DEFINITION
*
Option list Issue 1
3
APPENDIX II TO EXHIBIT A
TAM A350-900 SCN DEFINITION
*
Page l of 2
APPENDIX II TO EXHIBIT A
TAM A350-900 SCN DEFINITION
*
Option list Issue 1
Page 2 of 2
EXHIBIT B
EXHIBIT B
FORM OF
SPECIFICATION CHANGE NOTICE
- Exhibit B - Page 1/1
AIRBUS TAM - LINHAS AERAS
(LOGO) SPECIFICATION CHANGE NOTICE
(SCN) SCN Number _____________________________
Issue __________________________________
Dated __________________________________
Page ___________________________________
TITLE: _________________________________________________________________________
DESCRIPTION ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change: _________________________________________
Operational Weight Empty Change: ____________________________________________
Allowable Payload Change: ___________________________________________________
REMARKS / REFERENCES
RFC ... _____________________________________________________________________
SPECIFICATION CHANGED BY THIS SCN
A350-900 Aircraft Standard Specification Reference No G 000 09000
Issue B dated 30-June-2005
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 TAM - LINHAS AERAS
(LOGO) SPECIFICATION CHANGE NOTICE
(SCN) SCN Number _____________________________
Issue __________________________________
Dated __________________________________
Page ___________________________________
SPECIFICATION REPERCUSSION:
After contractual agreement with respect to weight, performance, delivery,
etc, the indicated part of the specification wording will read as follows:
AIRBUS TAM - LINHAS AERAS
(LOGO) SPECIFICATION CHANGE NOTICE
(SCN) SCN Number _____________________________
Issue __________________________________
Dated __________________________________
Page ___________________________________
SCOPE OF CHANGE (FOR INFORMATION ONLY)
EXHIBIT C
AIRCRAFT PRICE REVISION FORMULA
1 BASIC PRICE
The Aircraft Basic Price quoted in Clause 3.1 of the Agreement is subject
to adjustment for changes in economic conditions as measured by data
obtained from the US Department of Labor, Bureau of Labor Statistics, and
in accordance with the provisions hereof.
2 BASE PERIOD
The Aircraft 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
as defined by "EClb" and "ICb" index values indicated hereafter.
"EClb" and "ICb" index values indicated herein shall not be subject to any
revision.
3 INDEXES
Labor Index: "Employment Cost Index for Workers in Aerospace manufacturing"
hereinafter referred to as "ECI SIC 3721W", quarterly published by the US
Department of Labor, Bureau of Labor Statistics, in "NEWS", and found in
Table 6, "WAGES and SALARIES (not seasonally adjusted): Employment Cost
Indexes for Wages and Salaries for private industry workers by industry and
occupational group", or such other name that may be from time to time used
for the publication title and/or table, (Aircraft manufacturing, standard
industrial classification code SIC 3721, base month and year June 1989 =
100).
The quarterly value released for a certain month (March, June, September
and December) shall be the one deemed to apply for the two preceding
months.
Index code for access on the Web site of the US Bureau of Labor Statistics:
ECU28102L
Material Index: "Industrial commodities" (hereinafter referred to as "IC")
as published in "Producer Price Indexes" (Table 6. Producer price indexes
and percent changes for commodity groupings and individual items). (Base
Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor Statistics:
WPU03THRU15.
- Exhibit C - Page 1/3
EXHIBIT C
AIRCRAFT PRICE REVISION FORMULA
4 REVISION FORMULA
Pn = (Pb + F) x [(0.75 x ECIn / ECIb) + (0.25 x lCn/ICb)]
Where :
Pn : Aircraft Basic Price as revised as of the Delivery Date of the
Aircraft
Pb : Aircraft Basic Price at economic conditions December 2002,
January 2003, February 2003 averaged (January 2004 delivery
conditions)
F : (0.005 x N x Pb)
where N = the calendar year of delivery of the Aircraft minus
2004
ECln : the arithmetic average of the latest published values of the ECl
SIC 3721W-lndex available at the Delivery Date of the Aircraft
for the 11th, 12*(1) and 13th month prior to the month of
Aircraft Delivery
EClb : ECl SIC 3721 W-lndex for December 2002, January 2003, February
2003 averaged (=165.0)
ICn : the arithmetic average of the latest published values of the
IC-Index available at the Delivery Date of the Aircraft for the
11th, 12th and 13th month prior to the month of Aircraft Delivery
ICb : IC-Index for December 2002, January 2003, February 2003, averaged
(= 136.8)
- Exhibit C - Page 2/3
EXHIBIT C
AIRCRAFT PRICE REVISION FORMULA
5 GENERAL PROVISIONS
5.1 Roundings
The Labor Index average and the Material Index average shall be computed to
the first decimal. If the next succeeding place is five (5) or more, the
preceding decimal place shall be raised to the next higher figure.
Each quotient (ECln/ECIb) and (ICn/ICb) shall be rounded to the
nearest ten-thousandth (4 decimals). If the next succeeding place is five
(5) or more, the preceding decimal place shall be raised to the next higher
figure.
The final factor shall be rounded to the nearest ten-thousandth (4
decimals).
The final price shall be rounded to the nearest whole number (0.5 or more
rounded to 1).
5.2 Substitution of Indexes for Aircraft Price Revision Formula
If;
(i) the United States Department of Labor substantially revises the
methodology of calculation of the Labor Index or the Material Index as
used in the Aircraft Price Revision Formula, or
(ii) the United States Department of Labor discontinues, either temporarily
or permanently, such Labor Index or such Material Index, or
(iii) the data samples used to calculate such Labor Index or such Material
Index are substantially changed;
the Seller shall select a substitute index for inclusion in the Aircraft
Price Revision Formula (the "Substitute Index").
The Substitute Index shall reflect as closely as possible the actual
variance of the Labor Costs or of the material costs used in the
calculation of the original Labor Index or Material Index as the case may
be.
As a result of the selection of the Substitute Index, the Seller shall make
an appropriate adjustment to the Aircraft Price Revision Formula to combine
the successive utilisation of the original Labor Index or Material Index
(as the case may be) and of the Substitute Index.
5.3 Final Index Values
The Index values as defined in Clause 4 above shall be considered final and
no further adjustment to the basic prices as revised at Delivery of the
Aircraft shall be made after Aircraft Delivery for any subsequent changes
in the published Index values.
- Exhibit C - Page 3/3
EXHIBIT D
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of the A350-900 purchase agreement dated __th ____
2005 and made between TAM - LINHAS AEREAS S.A. and AIRBUS S.A.S., as amended
(the "PURCHASE AGREEMENT"), the acceptance tests relating to the A350-900
aircraft, Manufacturer's Serial Number: [______], Registration Marks: [______]
(the "AIRCRAFT"), have taken place at [______] or [______] on the [_____] day of
[____________].
In view of said tests having been carried out with satisfactory results, TAM
Linhas Aereas S.A. 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 [____________]
TAM - LINHAS AEREAS S.A.
By:
---------------------------------
Its:
--------------------------------
Page 1/1
EXHIBIT E
XXXX OF SALE
Know all men by these presents that Airbus S.A.S. (the "SELLER"), "societe par
actions simplifiee" existing under French law and whose address is 1 rond-point
Xxxxxxx Xxxxxxxx, 31707 Blagnac Cedex, FRANCE, is, this [________], 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 A350-900 General Electric Model Genex 72 A
MANUFACTURER'S ENGINE SERIAL NUMBERS:
SERIAL NUMBER: [_________] LH: [_________]
RH: [_________]
REGISTRATION MARKS: [_________]
[and has such title to the BFE as was acquired by it from TAM Linhas Aereas S.A.
by a Xxxx of Sale dated [____________] (the "BFE Xxxx of Sale").]
The Airframe, Engines and Parts are hereafter together referred to as the
Aircraft (the "AIRCRAFT").
The Seller does hereby on 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
[and the BFE] to be the property thereof:
TAM - LINHAS AEREAS S.A.
(the "BUYER")
The Seller hereby warrants to the Buyer, its successors and assigns that it has
good and lawful right to sell, deliver and transfer title to the Aircraft to the
Buyer and that there is hereby 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 [and such title to the BFE as the
Seller has acquired pursuant to the BFE Xxxx of Sale.]
This Xxxx of Sale shall be governed by and construed in accordance with the laws
of France.
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 - 1/16
EXHIBIT G
TECHNICAL DATA INDEX
Where applicable, data will be established in general compliance with ATA
Specification 2200 (iSpec2200), Information Standards for Aviation Maintenance
(Revision 2003).
The following index identifies the Technical Data provided in support of the
Aircraft.
The explanation of the table is as follows:
NOMENCLATURE Self-explanatory.
ABBREVIATED DESIGNATION (Abbr) Self-explanatory.
AVAILABILITY (Avail)
Technical Data can be available:
- ON-LINE (ON) through the relevant Service on Airbus Customer Portal
and / or
- OFF-LINE (OFF) through the most suitable means applicable to the size of
the concerned document (e.g CD or DVD).
FORMAT (Form)
Following formats can be used:
- SGML - Standard Generalized Xxxx-up Language, which allows further data
processing by the Buyer.
- XML - Evolution of the SGML format to cope with WEB technology
requirements.
- PDF (PDF) - Portable Document Format allowing data consultation.
- Advanced Consultation Tool, which comes with the relevant consultation and
navigation system.
- Advanced Customization Tool - FOSP (Flight Operations Standard Package) is
the advanced customization tool to be used by the Buyer to browse a manual,
customize a manual in accordance with its own operational or regulatory
requirements and/or publish a manual in OIS format.
Exhibit G - 2/16
EXHIBIT G
TYPE C CUSTOMIZED. Refers to manuals that are applicable to an individual
Airbus customer/operator fleet or aircraft.
G GENERIC. Refers to manuals that are applicable for all Airbus
aircraft types/models/series.
E ENVELOPE. Refers to manuals that are applicable to a whole group of
Airbus customers for a specific aircraft type/model/series.
QUANTITY (Qty) Self-explanatory for physical media.
DELIVERY (Deliv) Delivery refers to scheduled delivery dates and is expressed
in either the number of corresponding days prior to first
Aircraft Delivery, or nil (0) corresponding to the first
Delivery day.
The number of days indicated shall be rounded up to the next
regular revision release date.
Exhibit G - 3/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
OPERATIONAL MANUALS AND DATA
Flight Crew Operating Manual / FCOM OFF Advanced C 90
Quick Reference Leaflet (QRL) Customization
Tool
FCOM ON Advanced C 90
Customization
Tool
FCOM ON XML C 90
FCOM OFF XML C 90
FCOM OFF PAPER(**) C 90 (**) NOTE: This Manual will be provided
only if it's still produced in this
format by the Seller, at the time of
the delivery date.
QRL OFF Paper C 90 * Two per Aircraft at Delivery + 20
copies per Aircraft
QRL ON XML C * 90
QRL OFF XML C 90
Flight Crew Training Manual FCTM ON Advanced C 90
Customization
Tool
FCTM OFF Advanced C 90
Customization
Tool
FCTM ON XML C 90
FCTM OFF XML C 90
Cabin Crew Operating Manual CCOM OFF Advanced C 90
Customization
Tool
CCOM ON Advanced C 90
Customization
Tool
CCOM ON XML C 90
CCOM OFF XML C 90
Exhibit G - 4/16
EXHIBIT G
Flight Manual / Configuration FM/CDL OFF (PDF*) C 0 (*) plus one copy per Aircraft at
Deviation List Delivery under PDF or securised
format, as agreed with the
Airworthiness Authorities
FM/CDL ON Advanced C 0
Customization
Tool
FM/CDL ON XML C * 0
FM/CDL OFF XML C 0
FM/CDL OFF PAPER (**) C (**) NOTE: This Manual will be provided
only, If it's still produced in this
format by the Seller, at the time of
the delivery date.
Exhibit G - 5/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
OPERATIONAL MANUALS AND DATA (CONT'D)
Master Minimum Equipment List MMEL OFF (PDF *) C 0 (*) plus one copy per Aircraft at Delivery
under PDF or securised format, as
agreed with the Airworthiness
Authorities
MMEL OFF Advanced C 180
Customization
Tool
MMEL ON Advanced C 180
Customization
Tool
MMEL ON XML C 180
MMEL OFF XML C 180
MMEL OFF PAPER (**) C 180 (**) NOTE: This Manual will be provided,
only if it's still produced in this
format by the Seller, at the time of
the delivery date.
Trim Sheet TS OFF WordDoc C 0 Office Automation format (.doc) for further
TS ON WordDoc C * 0 processing by the Buyer
Weight and Balance Manual WBM OFF (PDF *) C 0 (*) plus one copy per Aircraft at Delivery
under PDF or securised format, as
agreed with the Airworthiness
Authorities
WBM OFF Advanced C 90
Customization
Tool
WBM ON Advanced C 90
Customization
Tool
WBM ON XML C 90
WBM OFF XML C 90
WBM OFF PAPER (**) C 90 (**) NOTE: This Manual will be provided,
only if it's still produced in this
format by the Seller, at the time of
the delivery date.
Exhibit G - 6/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
OPERATIONAL MANUALS AND DATA (CONT'D)
Performance Engineer's Programs PEP OFF Advanced C 90
Consultation
Tool
PEP ON Advanced C 90
Consultation
Tool *
Performance Programs Manual PPM OFF Advanced C 90
Consultation
Tool
PPM ON Advanced C 90
Consultation
Tool
Exhibit G - 7/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
MAINTENANCE AND ASSOCIATED MANUALS
Air N@v / MAINTENANCE, including: AirN@v ON Advanced C 90
Aircraft Maintenance Manual Maintenance Consultation
Illustrated Parts Catalog (Airframe) Tool
Illustrated Parts Catalog (Powerplant) AirN@v OFF Advanced C 90 Recommended basic delivery quantity
Trouble Shooting Manual Maintenance Consultation
Aircraft Schematics Manual Tool on DVD
Aircraft Wiring Lists
Aircraft Wiring Manual
Electrical Standard Practices Manual
AirN@v / Associated Data
Consumable Material List
Standards Manual
*
Aircraft Maintenance Manual XXX XX XXXX X 00
XXX XXX XXXX X 90 If selected by the Buyer, SGML
format will not be automatically
supplied. Effective delivery will
only take place upon explicit
request from the Buyer
AMM OFF CD PDF (**) C 90 (**) NOTE: This Manual will be
provided, only if it's still
produced in this format by the
Seller, at the time of the
delivery date.
Aircraft Schematics Manual ASM ON SGML C 90
ASM OFF SGML C 90 See comments under AMM SGML
ASM OFF CD PDF (**) C 90 (**) NOTE: This Manual will be
provided, only if it's still
produced in this format by the
Seller, at the time of the
delivery date.
Aircraft Wiring Lists AWL ON SGML C 90
AWL OFF SGML C 90 See comments under AMM SGML
AWL OFF CD PDF (**) C 90 (**) NOTE: This Manual will be
provided, only if it's still
produced in this format by the
Seller, at the time of the
delivery date.
Aircraft Wiring Manual AWM ON SGML C 90
Exhibit G - 8/16
EXHIBIT G
AWM OFF SGML C 90 See comments under AMM SGML
Consumable Material List CML ON SGML G * 000
XXX XXX XXXX X 180 See comments under AMM SGML
Exhibit G - 9/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
MAINTENANCE AND ASSOCIATED MANUALS (CONT'D)
AirN@v/ENGINEERING, including Engineering ON Advanced C 90
Airworthiness Directives / AD Technical Consultation
Consignes de Navigabilite/CN Data Tool
(French DGAC) Service
All Operator Telex / AOT
Operator Information Telex / OIT AirN@v OFF Advanced C 90 AirN@v Engineering is an "Engineering
Flight Operator Telex / FOT Consultation Documentation Combined Index"
Modification / MOD Tool providing an access to some
Modification Proposal / MP Engineering document indexes and
Service Bulletin / SB contents and providing
Service Information Letter / SIL cross-references between such
Technical Follow-Up / TFU documents through advanced search
Vendor Service Bulletin / VSB functions.
Electrical Load Analysis ELA OFF PDF/RTF/ C +30 One ELA supplied for each Aircraft,
XLS delivered one month after Aircraft
Delivery
* PDF File + Office automation format
RTF & Excel file delivered on one
single CD for ELA updating by the
Buyer
Electrical Standard Practices Manual ESPM ON SGML G 90
ESPM OFF SGML G 90 See comments under AMM SGML
ESPM ON PDF G 90
ESPM OFF CD-P G 90
Electrical Standard Practices ESP OFF P2* G 90 * Refers to a two-side printed
booklet document
Illustrated Parts Catalog (Airframe) IPC ON XXXX X 00
XXX XXX XXXX X 90 See comments under AMM SGML
IPC OFF CD PDF (**) C 90 (**) NOTE: This Manual will be
provided, only if it's still
produced in this format by the
Seller, at the time of the
delivery date.
Illustrated Parts Catalog PIPC ON SGML C 90
(Powerplant) PIPC OFF SGML C 90 See comments under AMM SGML
Exhibit G - 10/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
MAINTENANCE AND ASSOCIATED MANUALS (CONT'D)
AirN@v / PLANNING, including: AirN@v ON Advanced E 90* With first AMM issue
Maintenance Planning Document Planning Consultation
Tool
AirN@v OFF Advanced E 90* Upon Customer's request, the MPD may
Planning Consultation also be supplied in PDF / Refer
Tool on DVD below.
Maintenance Planning Document MPD ON SGML E 90
MPD OFF SGML E 90 See comments under AMM SGML
MPD OFF PDF E 360 * Supplied upon Buyer's request
only
Contains PDF, Excel File and TSDF /
Task Structured Data File for further
processing
Maintenance Review Board Report MRBR ON PDF E 360 MRB Report ocument includes the
MRBR OFF CD-P E * 360 Certification Maintenance
Requirements (CMR) and Airworthiness
Limitation Items (ALI) documents.
Support Equipment Summary SES ON PDF G 360
SES OFF* CD-P G 360 * Contained on one single CD with
TEI/TEM
Tool and Equipment Drawings XXX ON Advanced E 360 On-line Consultation from Engineering
Consultation Drawings Service
Tool
Tool and Equipment index TEI ON PDF E 360
TEI OFF* CD-P E 360 * Contained on one single CD with
TEM & SES
Illustrated Tool and Equipment TEM ON PDF E 360
Manual
TEM OFF* CD-P E 360 * Contained on one single CD with
TEI & SES
Trouble Shooting Manual TSM ON SGML C 90
TSM OFF SGML C 90 See comments under AMM SGML
Exhibit G - 11/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
STRUCTURAL MANUALS
AirN@v / REPAIR, Including: AirN@v ON Advance E 90.
Structural Repair Manual Repair Consultation
Tool
Nacelle Structural Repair Manual AirN@v OFF Advance E 90.
(Integrated in Airbus SRM) Repair Consultation
Non Destructive Testing Manual + Tool On DVD
AirN@v / Associated Data > * Recommended basic delivery quantity
Consumable Material List
Standards Manual
*
Structural Repair Manual SRM ON SGML E 90
SRM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Nacelle Structural Repair Manual NSRM ON SGML E 90
(integrated in Airbus SRM) NSRM OFF SGML E 90 See comments under SRM SGML
Nondestructive Testing Manual NTM ON SGML E 90
NTM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Exhibit G - 12/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
OVERHAUL DATA
AirN@v / WORKSHOP. including: AirN@v ON Advance E 180
Component Maintenance Manual - Workshop Consultation
Manufacturer Duct & Fuel Pipe Repair Tool
Manual + AirNOv / Associated Data > AirN@v OFF Advance E
Consumable Material List Workshop Consultation
Standards Manual Tool On DVD
Component Maintenance Manual - CMMM ON PDF E 180
Manufacturer CMMM OFF CD-P E 180 Supplied upon Buyer's request
Component Maintenance Manual - CMMM ON SGML E 180
Manufacturer CMMM OFF SGML E 180 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will on]y take place
upon, explicit request from the Buyer
Duct & Fuel Pipe Repair Manual DFPRM ON PDF E * 180
DFPRM OFF CD-P E 180 Supplied upon Buyer's request
Duct & Fuel Pipe Repair Manual DFPRM ON SGML E 180
DFPRM OFF SGML E 180 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Component Maintenance Manual - CMMV ON PDF E 180 Consultation from the Supplier Technical
Vendor Data On-Line Service on Airbus Customer
Portal
CMMV OFF CD-P E 180 Supplied by Vendors
Component Documentation Status CDS ON Advanced C 180 Revised until 180 days after Aircraft
Consultation Delivery
Tool
CDS OFF Advanced C 180
Consultation
Tool
Component Evolution List CEL ON PDF G -- Delivered as follow-up to CDS
CEL OFF CD-P G --
Exhibit G - 13/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
ENGINEERING DOCUMENTS
Mechanical Drawings MD ON Advanced C 0 On-line Consultation from Engineering
Consultation Drawings Service
Tool
Parts Usage (Effectivity) PU ON Advanced C 0 On-line Consultation from Engineering
Consultation Drawings Service
Tool
Parts List PL ON Advanced C * 0 On-line Consultation from Engineering
Consultation Drawings Service
Tool
Standards Manual SM ON SGML E 90
SM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Process and Material Specification PMS ON PDF G 0
PMS OFF CD-P G 0
Exhibit G - 14/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
MISCELLANEOUS PUBLICATIONS
Aircraft Characteristics for Airport AC/MFP ON PDF E 360
and Maintenance Facility Planning
ATA 100 Breakdown Index ATAB ON PDF E 360 6 Digits ATA 100 Breakdown Index
C@DETS (Technical Data Training Tool) C@DETS OFF Advanced G 360 Training Tool applicable to major
Consultation technical Data (AMM/TSM/ IPC/ WDM/
Tool on CD SRM / NTM) and to associated Data.
C@DETS ON PDF G 000
Xxxxxxxx Xxxxxxxx Xxxxxx XXX XX PDF E 90
ARM OFF CD-P E 90
Aircraft Rescue & Firefighting Chart ARFC ON PDF E 180
ARFC OFF P1* E 180 * Refers to a one-side printed
document
List of Effective Technical Data LETD ON PDF C 90
List of Radioactive and Hazardous LRE ON PDF G * 90
Elements
LRE OFF CD-P G 90
Live Animal Transportation Calculation LATC ON Advanced E 90
Tool Consultation
Tool
LATC OFF Advanced E 90
Consultation
Tool
Service Bulletins SB ON Advanced C 0
Consultation
Tool
SB ON SGML C 0
SB OFF SGML C 0
SB ON PDF (**) C 0 (**) NOTE: This Manual will be
provided, only if it's still
produced in this format by the
Seller, at the time of the
delivery date.
SB OFF CD-P C 0
Exhibit G - 15/16
EXHIBIT G
NOMENCLATURE ABBR AVAIL FORM TYPE DELIV COMMENTS
------------ ---- ----- ---- ---- ----- --------
Supplier Product Support Agreements 2000 SPSA ON PDF G 360 Based on General Conditions of
Purchase (GCP) 2000 Issue 5
SPSA OFF CD-P G 360
Transportability Manual TM ON PDF E 180
TM OFF CD-P E 180
Vendor Information Manual VIM ON Advanced G * 360
Consultation
Tool
VIM OFF Advanced G 360
Consultation
Tool
VIM/GSE ON Advanced G 360
Consultation
Tool
Exhibit G - 16/16
EXHIBIT "H"
EXHIBIT "H"
MATERIAL
SUPPLY AND SERVICES
Exhibit H - 1/24
EXHIBIT "H"
1 GENERAL
1.1 This Exhibit defines the terms and conditions for the material
support services offered by the Seller to the Buyer in the
following areas:
- Initial provisioning of data and material
- Replenishment of material
- 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 MATERIAL SUPPORT
Material is classified into the following categories (hereinafter
referred to as "MATERIAL"):
(i) Seller Parts (Seller's proprietary Material bearing an
official part number of the Seller or Material 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 of Exhibit
H are available for lease by the Seller to the Buyer.
1.2.2 The Material support to be provided hereunder by the Seller
covers items classified as Material 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.
1.2.3 Engines, quick engine change kit 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 Engines Manufacturer. The Seller shall use its
reasonable efforts to assist the Buyer in case of any
difficulties with availability of Engines 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 in commercial air
transport service (the "TERM"), the Seller shall maintain or have
maintained such stock of Seller Parts as is deemed reasonable by
the Seller and shall
Exhibit H - 2/24
EXHIBIT "H"
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 AIRBUS SPARES SUPPORT AND SERVICES HEADQUARTER
1.3.1 The Seller has established its Airbus Spares Support Centre in
HAMBURG, FEDERAL REPUBLIC OF GERMANY ("AIRBUS SPARES SUPPORT
CENTRE") and shall maintain or cause to be maintained during the
Term a central store of Seller Parts.
1.3.2 The Airbus Spares 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 Airbus Spares 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 or its licensee(s)
("the Licensees") 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
by the Seller and manufactured by the Seller or its Licensee(s).
1.4.2 The Buyer may manufacture or have manufactured for its own use
without paying any license fee to the Seller 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 or its
Licensees 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).
Exhibit H - 3/24
EXHIBIT "H"
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 or royalty, nor shall
they in any way be construed to affect the rights of third
parties.
1.4.4 Furthermore, in the event of the Buyer manufacturing or having
manufactured any parts, subject to the conditions of Clause
1.4.2, such manufacturing and any use made of the manufactured
part shall be under the sole liability of the Buyer and the
consent given by the Seller shall not be construed as express or
implicit approval howsoever either of the Buyer or of the
manufactured parts.
It shall further be the Buyer's responsibility to ensure that
such manufacturing is performed in accordance with the relevant
procedures and Aviation Authority requirements.
1.4.5 The Buyer shall allocate or cause to be allocated its own
partnumber to any part manufactured or caused to be manufactured
subject to Clause 1.4.2 above. The Buyer shall not be allowed to
use or cause to be used the Airbus Partnumber of the Seller Part
to which such manufactured part is equivalent.
1.4.6 Notwithstanding any right provided to the Buyer under Clause
1.4.2, the Buyer shall not be entitled under any circumstances to
sell any part manufactured or caused to be manufactured under
Clause 1.4.2 to any third party.
Exhibit H - 4/24
EXHIBIT "H"
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 Airbus Spares Support Centre
for the purpose of formulating an acceptable schedule and working
procedure to accomplish the initial provisioning of Material.
2.2.2 The date of the meeting shall be mutually agreed upon by the
Buyer and the Seller, 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 shall 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 or prior to 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 Airbus Spares Support
Centre, including participation of major Suppliers, which Initial
Provisioning Conference shall take place on the date mutually
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 Contractual Definition Freeze of the first
Aircraft, whichever is the latest.
*
Exhibit H - 5/24
EXHIBIT "H"
2.5 SELLER-SUPPLIED DATA
The Seller shall prepare and supply to the Buyer the data set
forth hereunder.
2.5.1 INITIAL PROVISIONING DATA
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 Material.
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 material.
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.
Exhibit H - 6/24
EXHIBIT "H"
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 Material 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
Material 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
Material, 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 MATERIAL
2.9.1 To cover the requirements in Material for entry into service of
the Aircraft, the Seller shall use its reasonable efforts to
deliver Material ordered during the Initial Provisioning Period
against the Buyer's orders and according to a mutually agreed
schedule. Such deliveries shall cover the Material requirements
in line with the Aircraft fleet build up, only up to that portion
of the ordered quantity that is recommended for the number of
Aircraft operated during the Initial Provisioning Period.
The Seller shall in addition use its reasonable efforts to cause
Suppliers to provide to the Buyer a similar service for their
items.
Exhibit H - 7/24
EXHIBIT "H"
2.9.2 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 Material.
2.9.3 In the event of the Buyer cancelling or modifying (without any
liability of the Seller for the cancellation or modification) any
orders for Material outside the time limits defined in Clause
2.9.2, the Buyer shall reimburse the Seller for any costs
incurred in connection therewith.
2.9.4 All transportation costs for the return of Material under this
Clause 2, including any 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 Material 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.
Exhibit H - 8/24
EXHIBIT "H"
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 Material 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 Catalog can be dispatched within the lead times
defined in the Spare Parts Price Catalog.
Lead times for Seller Parts, which are not published in the
Seller's Spare Parts Price Catalog, are quoted upon request.
3.2.2 Material 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 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.
Exhibit H - 9/24
EXHIBIT "H"
3.3 DELIVERY STATUS
The Seller shall make available to the Buyer on the Airbus Spares
Portal the status of supplies against orders.
3.4 EXCUSABLE DELAY
Clause 10.1 of the Agreement shall apply to the Material 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 Material 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
Material or credit the Buyer for the returned Material. In such
case, transportation costs shall be borne by the Seller.
The Buyer shall endeavour to minimize such costs, particularly
through the use of its own airfreight system for transportation
at no charge to the Seller.
3.6 PACKAGING
All Material shall be packaged in accordance with ATA 300
Specification, Category III for consumable/expendable material
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 Material.
3.7 CESSATION OF DELIVERIES
The Seller reserves the right to restrict, stop or otherwise
suspend deliveries if the Buyer fails to meet its obligations
defined in Clauses 4.2 thru 4.4.
Exhibit H - 10/24
EXHIBIT "H"
4 COMMERCIAL CONDITIONS
4.1 PRICE
4.1.1 The Material prices shall be:
- Free Carrier (FCA) the Airbus Spares Support Centre for
deliveries from the Airbus Spares 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 Catalog. 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 materials (including significant variation of
exchange rates),
- significant error in estimation or expression of any price.
4.1.4 Prices of Material 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 Material's value and shall be
determined item by item.
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.
Exhibit H - 11/24
EXHIB1T "H"
4.2.3 The Buyer shall make all payments hereunder to the Seller's
account with:
XXXXXXX & XXXXXXXX XX-00000 Xxxxxxx-Xxxxxxx
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 *
months deposits in US Dollars (as published in the Financial
Times on the due date) plus * per year (part year to be
prorated).
4.3 *
4.4 TITLE
Title to any Material 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 Material, 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 favour of any third
party.
4.5 BUY-BACK
4.5.1 BUY-BACK OF OBSOLETE MATERIAL
The Seller agrees to buy back unused Seller Parts which may
become obsolete up to * months after 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,
Exhibit H - 12/24
EXHIBIT "H"
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.
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 INITIAL PROVISIONING SURPLUS MATERIAL
4.5.2.1 The Seller agrees that at any time after * and within * after
Delivery of the first Aircraft to the Buyer, the Buyer shall have
the right to return to the Seller, at a credit of * of the
original purchase price paid by the Buyer, unused and undamaged
Material as per sub-Clause 1.2 (i) and at a credit of * of the
original Supplier list price, unused and undamaged Material 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 * with a transit time of * and said
Material 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 * shelflife remaining when
returned to the Seller and provided that the Material is returned
with the Seller's original documentation (tag, certificates).
4.5.2.2 In the event of the Buyer electing to procure Material 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 Material 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 Material
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
Material under this Clause 4, including any insurance and customs
duties applicable or other related expenditures, shall be borne
by the Buyer.
4.6 INVENTORY USAGE DATA
The Buyer undertakes to provide periodically to the Seller a
quantitative list of the
Exhibit H - 13/24
EXHIBIT "H"
parts used for maintenance and overhaul of the Aircraft. The
range and contents of this list shall be established according to
SPEC 2000, Chapter 5, or as mutually agreed between the Seller
and the Buyer.
Exhibit H - 14/24
EXHIBIT "H"
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 * 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 * 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 expenses 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".
Exhibit H - 15/24
EXHIBIT "H"
5.4 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
5 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, ITS
SUPPLIERS AND/OR THEIR INSURERS EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN
ANY MATERIAL DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT
LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES
CACHES);
(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 MATERIAL 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 MATERIAL
DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 5.4, "THE SELLER" SHALL INCLUDE
THE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
Exhibit H - 16/24
EXHIBIT "H"
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), facsimile, 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
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 * days, the
Lease shall be converted into a sale. Should the Lessee not
return the Leased Part to the Lessor within * 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 *
days plus the current sales price of the Leased Part at the
moment of the conversion of the Lease.
Exhibit H - 17/24
EXHIBIT "H"
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 * days. If
the shipment of the Leased Part has been arranged and the Lessee
cancels the lease order, the minimum chargeable period of * 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 Catalog
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 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
Exhibit H - 18/24
EXHIBIT "H"
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 on the individual lease document
provided by the Lessor at the start of each Lease transaction.
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 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: * of the Lessor's current sales price for a new
part plus * of the accumulated Lease fees shall be invoiced.
According to the Lessors 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.
Exhibit H - 19/24
EXHIBIT "H"
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
Catalog shall be paid by the Lessee to the Lessor. Should the
Lessee exercise such option, * 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 WARRANTY AND NOTICE PERIODS
The Lessee's remedy and the Lessor's obligation and liability
under this Clause 6.9, 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.
Exhibit H - 20/24
EXHIBIT "H"
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
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 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
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 LESSEE AGAINST THE LESSOR, ITS
SUPPLIERS AND/OR THEIR INSURERS EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN
ANY LEASED PART DELIVERED UNDER THESE LEASING CONDITIONS
INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES
CACHES);
(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
Exhibit H - 21/24
EXHIBIT "H"
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 LESSOR" SHALL INCLUDE
THE LESSOR, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
Exhibit H - 22/24
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 - 23/24
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 - 24/24
LETTER AGREEMENTS - CONTENTS
CONTENTS
LETTERS AGREEMENTS
------------------
Letter Agreement No 1: *
Letter Agreement No 2: *
Letter Agreement No 3: OPTIONS
Letter Agreement No 4: *
Letter Agreement No 5A: A350-900 PERFORMANCE, GUARANTEE (75,000 lbs Thrust)
Letter Agreement No 5B: *
Letter Agreement No 5C: *
Letter Agreement No 6A: *
Letter Agreement No 6B: *
Letter Agreement No 7: *
Letter Agreement No 8: *
Letter Agreement No 9: *
Letter Agreement No 10: MISCELLANEOUS
Letter Agreement No 11: *
LETTER AGREEMENT NO 1
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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.
- Letter Agreement No 1 - Page 1/5
[Three pages redacted]
*
LETTER AGREEMENT NO 1
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 1 - Page 5/5
LETTER AGREEMENT NO 2
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. (the "Buyer") and AIRBUS S.A.S. (the "Seller") have
entered into an X000-000 Xxxxxxxx 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 A350-900 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.
- Letter Agreement No 2 - Page 1/6
[4 pages redacted]
*
LETTER AGREEMENT NO 2
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 2 - Page 6/6
LETTER AGREEMENT NO 3
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: OPTION RIGHTS
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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, non severable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
- Letter Agreement No 3 - Page 1/4
LETTER AGREEMENT NO 3
1 GENERAL
The Seller hereby grants to the Buyer the right to purchase up to 5
additional A350-900 (or A350-800) Aircraft (hereinafter "the Option
Aircraft").
The Option Aircraft shall be manufactured in accordance with the
Aicraft Specification set out in Clause 2 of the Agreement
* and including any development changes which may be incorporated by
the Seller prior to the delivery of the Option Aircraft.
*
*
*
2 OPTION AIRCRAFT PRICE
*
3 OPTION EXERCISE AND DELIVERY DATE
*
*
*
*
4 VALIDITY
*
- Letter Agreement No 3 - Page 2/4
LETTER AGREEMENT NO 3
*
*
*
8 ASSIGNMENT
The Option Aircraft are personal to the Buyer and cannot be assigned
to any third party without the Seller's prior written consent.
- Letter Agreement No 3 - Page 3/4
LETTER AGREEMENT NO 3
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 3 - Page 4/4
LETTER AGREEMENT NO 4
TAM - UNHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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.
- Letter Agreement No 4 - Page 1/5
[Three pages Redacted]
LETTER AGREEMENT NO 4
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 4 - Page 5/5
LETTER AGREEMENT No 5A
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: A350-900 PERFORMANCES GUARANTEE *
TAM - LINHAS AEREAS S.A. ("the Buyer*) and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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.
- Letter Agreement No 5A - Page 1/19
LETTER AGREEMENT NO 5A
1. AIRCRAFT CONFIGURATION.
The guarantees, defined below ("the Guarantees") are applicable to the
A350-900 Aircraft as described in the Standard Specification referenced G
000 09000 Issue B dated 30 June 2005 amended by a Specification Change
Notice ("SCN") for installation of General Electric GEnx-1A75 engines,
hereinafter referred to as the Specification",
*
*
*
*
*
*
*
- Letter Agreement No 5A - Page 2/19
[15 pages redacted]
*
LETTER AGREEMENT NO 5A
If the foregoing correctly sets forth our understanding, please execute two(2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 5A - Page 18/18
[one page redacted]
*
LETTER AGREEMENT NO 5B
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Xxxx 0,
XXX 00000 - 000, Xxxxxx XXXX,
XXX XXXXX -SP,
BRAZIL
Subject: A 350-900 PERFORMANCES GUARANTEE *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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.
- Letter Agreement No 5B - Page 1/20
[17 pages redacted]
*
LETTER AGREEMENT NO 5B
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 5B - Page 19/19
[one page redacted]
*
LETTER AGREEMENT NO 5C
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Xxxx 0,
XXX 00000 - 000, Xxxxxx XXXX,
XXX XXXXX -SP,
BRAZIL
Subject
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-800 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 A350-800 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.
- Letter Agreement No 5C - Page 1/19
[16 pages redacted]
*
LETTER AGREEMENT No 5C
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 5C - Page 18/18
[One page redacted]
*
LETTER AGREEMENT NO 6A
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Jardim CECl,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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, no severable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
- Letter Agreement No 6A - Page 1/15
Pages 2 to 14 redacted
*
LETTER AGREEMENT NO 6A
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
-------------------------------------
Name: Xxxx Xxxxxx Xxxxx
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 6A - Page 15/15
LETTER AGREEMENT NO 6B
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-800 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 A350-800 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, no severable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
- Letter Agreement No 6B - Page 1/16
Pages 2 to 15 redacted
*
LETTER AGREEMENT NO 6B
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 6B - Page 16/16
LETTER AGREEMENT NO 7
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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.
- Letter Agreement No 7 - Page 1/3
LETTER AGREEMENT NO 7
*
- Letter Agreement No 7 - Page 2/3
LETTER AGREEMENT NO 7
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 7 - Page 3/3
LETTER AGREEMENT NO 8
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO - SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. (the "Buyer") and AIRBUS S.A.S. (the "Seller") have a
entered into an X000-000 Xxxxxxxx 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 A350-900 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.
- Letter Agreement No 8 - Page 1/5
Pages 2 to 4 redacted
*
LETTER AGREEMENT NO 8
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 8 - Page 5/5
LETTER AGREEMENT NO 9
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000,00 xxxxx, Xxxx 0,
XXX 00000 - 000, Xxxxxx XXXX,
SAO PAULO-SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an X000-000 Xxxxxxxx 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 A350-900 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.
- Letter Agreement No 9 - Page 1/15
Page 2 to 4 redacted
*
LETTER AGREEMENT NO 9
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 9 - Page 5/15
Pages 6 to 15 redacted
*
LETTER AGREEMENT NO 10
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Xxxx 0,
XXX 00000 - 000, Xxxxxx XXXX,
XXX XXXXX -SP,
BRAZIL
Subject: MISCELLANEOUS
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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, no severable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
- Letter Agreement No 10 - Page 1/4
Pages 2 to 3 redacted
*
LETTER AGREEMENT NO 10
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 10 - Page 4/4
LETTER AGREEMENT NO 11
TAM - LINHAS AEREAS S.A.
Xxxxxxx Xxxxxxxx, 000, 00 xxxxx, Lote 4,
CEP 04072 - 000, Xxxxxx XXXX,
SAO PAULO-SP,
BRAZIL
Subject: *
TAM - LINHAS AEREAS S.A. ("the Buyer") and AIRBUS S.A.S. ("the Seller") have
entered into an A350-900 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 A350-900 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, no severable part of said Agreement and shall be
governed by all its provisions, as such provisions have been specifically
amended pursuant to this Letter Agreement.
- Letter Agreement No 11 - Page 1/3
LETTER AGREEMENT NO 11
*
- Letter Agreement No 11 - Page 2/3
LETTER AGREEMENT NO 11
If the foregoing correctly sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of this Letter
Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
TAM - LINHAS AEREAS S.A. AIRBUS S.A.S.
/s/ Marco Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxx
------------------------------------- ----------------------------------------
Name: Marco Xxxxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Head of Transactions and Control
Deputy Head of Commercial
Date: December 20th, 2005 Date: December 20th, 2005
/s/ Xxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxxx Maluf
Title: Director
Date: December 20th, 2005
WITNESS WITNESS
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxx
Title: Legal Counsel Title: Regional Sales Director
Date: December 20th, 2005 Date: December 20th, 2005
- Letter Agreement No 11 - Page 3/3
