General Terms and Conditions (AGB)
General Terms and Conditions of Zoller Aviation Services GmbH, referred to as ZAS-Aviation
A. Validity of own and third-party Standard Terms and Conditions
1. The following Standard Terms and Conditions of ZAS-Aviation shall apply to all present and future contracts with its customers, meaning contracts for work, services and materials, governing contracts of sale for aircraft and aircraft parts (exchange parts, spare parts, accessories and additional parts), as well as any consulting services.
2. Deviating and/or supplementary own Standard Terms and Conditions from ZAS-Aviation customers shall not become contents of the respective contracts for work, services and materials and contracts of sale, even if ZAS-Aviation does not explicitly object to them and/or provides contractual services for its customers without reservation and/or accepts contractual services without reservation.
B. Conclusion and fulfillment of the contract, special customer obligations
1. Contracts for work, services and materials and contracts of sale that place ZAS-Aviation under obligations must be in writing, at all events written order and/or confirmation of order. Oral ancillary agreements do not apply and do not exist, if to confirmed in writing within 10 days. Written declarations and confirmations from ZAS-Aviation must be objected to in writing without delay; otherwise they shall be deemed to be approved.
2. Any item sent by the Customer to be exchanged, repaired, inspected and/or overhauled shall be sent to ZAS-Aviation carefully packed DDP to ZAS-Aviation’s location.
3. ZAS-Aviation shall be entitled to provide its contractual services, or have them provided, through third-party companies.
4. ZAS-Aviation may withdraw from the contract in the event of the occurrence of force majeure (including embargo and/or import/export restrictions in the area of material procurement) and in case of unforeseeable obstacles to performance and/or obstacles to performance that cannot be overcome through acceptable expense. This shall not include obstacles to performance for which ZAS-Aviation is responsible.
C. Offers, quotations/ costs estimates, down payments
1. All offers and quotations/ costs estimates from ZAS-Aviation are without commitment until they are accepted by its customers.
2. If it is seen after the award of the contract (among other things during dismantling, evaluation or other unforeseeable reasons) that additional work is necessary to fulfill the contract and/or there is a demand for additional material, ZAS-Aviation shall not be bound by quotations and/or concluded contracts. If such cases concern the restoration and/or maintenance of airworthiness the necessary follow-up or supplementary contracts shall be deemed to be awarded automatically, unless the customer objects to ZAS-Aviation within two weeks of knowledge and reference to this effect of fiction. Until then all ZAS-Aviation’s contractual obligations shall be suspended.
3. ZAS-Aviation may make the implementation of the contract dependent on the prior payment of a reasonable down payment and in addition provide partial deliveries and invoice the latter.
D. Delivery, delivery dates and acceptance
1. Delivery dates or delivery periods shall not commence before the award of the contract, the provision of aircraft or of aircraft parts, the documents that have otherwise to be made available and the necessary approvals or before the part payments to be provided by the customers. ZAS-Aviation may demand approval of a suitable extension to the performance period if the violation of the limit was not foreseeable when the contract was awarded. Customers shall not be entitled to set a period of grace with a threat to rescind the contract until is has expired.
2. The handover of aircraft parts shall be carried out in principle from ZAS-Aviation’s location. The latest edition of the international trade terms (INCOTERMS) shall apply.
3. ZAS-Aviation may demand formal acceptance and make the handover of aircraft parts dependent on the prior payment of its provisional or final invoice. The handover shall take place in principle within five working days of the notification of completion. Following this ZAS-Aviation shall be entitled to store the aircraft part concerned against reimbursement of the storage charges. The accruing costs must be paid before the handover. ZAS-Aviation shall only be liable in case of intention or gross negligence for damage caused during storage.
4. If ZAS-Aviation supplies spare or accessory parts on exchange base its Customer shall return an acceptable core without compensation at its own expenses and its title of ownership and appropriate technical documents attached within 30 days after the availability of the exchange item. A core part shall be deemed to be acceptable if it has the agreed part number (P/N), shows only the usual wear and tear and it is in a condition that can be repaired economically. In other cases ZAS-Aviation reserves the right to make an additional charge in the amount of the value of an acceptable core. The exchange item becomes the Customer’s property. Upon delivery of the exchange item to the Customer, the removed one returns to ZAS-Aviation property. At that time, the Customer will save the removed core for ZAS-Aviation what substitutes the handover of the property. The Customer ensures unrestricted power of disposition on the removed core. The Customer cannot request to get back the initial item. If the Customer fails to return the core part within the said period of time, ZAS-Aviation may invoice additional charges for the exchange item based on the price for new items.
5. If part and/or item are exported directly by sea, air, and road to a country outside the European Union, ZAS-Aviation will take over the responsibility to provide appropriate customs documentation to the Customer or its designated forwarder. The Customer guarantees correct closure of the respective customs procedure on leaving the European Union. In case of non-compliance, the Customer shall be liable for the full amount of any additional costs and charges imposed on ZAS-Aviation by national tax administration.
E. Prices, payment
1. All invoice prices shall be due for payment immediately without deduction. All payments shall be made without costs.
2. Complaints about invoices shall be made within seven days of receipt of the invoice. Invoices shall be deemed to be received no later than the third day after the date of the invoice. The customer shall bear the burden of proof of receipt of the invoice at a later date. ZAS-Aviation does not have to accept delayed complaints.
3. Terms of payment granted to the customer shall lapse and outstanding amounts due to ZAS-Aviation shall become due immediately if the customer petitions for bankruptcy or if its financial situation deteriorates to such an extent that the claim or claims appear endangered, if the customer made a false statement on its creditworthiness or if the cover promised by a credit underwriter insurer is revoked or reduced.
4. Setting counterclaims off against claims by ZAS-Aviation shall only be permitted if the counterclaims are not disputed, or if they are ready for discussion or legally established.
5. ZAS-Aviation prices are exclusive any charges resulting from administrative and legislative regulations in force in the Customer’s country and of any customs and duty charges, which are the Customer’s responsibility.
6. Payment shall in no case be postponed or apportioned for any reason whatsoever. Failure to pay any outstanding amount in due time shall render all amounts due by the Customer immediately payable. In the event of a payment delay, the Customer will be, in full right, liable for a 12 (twelve) % annual interest rate or any higher rate required by law, for the period lapsed between due date and the date upon which funds were made available on ZAS-Aviation’s bank account. In the event of a delay or failure by the Customer to pay, ZAS-Aviation will be entitled to suspend performance of all current contracts/orders or to rescind the contract by written notice and retain as liquidated damages any initial payment made by the Customer. The retention of any such payment shall not preclude ZAS-Aviation from seeking compensation from the Customer for further damages and/or costs. The Customer shall be entitled to show and prove that the actual damage caused by such default to ZAS-Aviation is considerably less than the amount retained as liquidated damages. The Customer shall not be entitled to claim compensation for damages on the grounds of non-availability of parts or non- performance of services.
7. Accordingly, in the event that the Customer fails to pay according to the contractual payment terms, ZAS-Aviation reserves the right to rescind the contract through notification sent by registered letter and, if the items/spare parts are already delivered, to demand that said items be returned.
F. Guarantee, liability
1. Guarantee services (work and material) shall be provided at ZAS-Aviation’s location. The customer shall bear all extra costs of agreed deviations.
2. In case of the purchase of aircraft or aircraft parts ZAS-Aviation shall be given an initial opportunity in the framework of the guarantee to provide subsequent performance under §439 (1) German Civil Code (BGB). The statutory liability of ZAS-Aviation for injury of life, body or health shall remain unaffected by the following limitations. With the exception of cases of breaches of a material contractual obligation the reasons for claims for damages of whatever kind shall be limited to intention and gross negligence and in cases of gross negligence with regard to the amount to the respective purchase price for the aircraft or aircraft part. Proof of greater damage or loss would have to be provided. Material obligations are those obligations whose fulfillment enables the due fulfillment of the contract in the first place and in whose compliance the customer may trust as a rule. In case of contracts of any kind for work and materials ZAS-Aviation shall initially be given an opportunity for subsequent performance. Rights under § 634 No. 2 to 4 BGB may only be claimed after unsuccessful subsequent performance. With the exception of intention the amounts of claims for compensation of any kind shall be limited to the respective compensation for work under the contracts for work and service and for work, labor and materials. Proof of greater damage or loss has to be provided.
3. Assignment of all guarantee claims to third parties is excluded.
4. Consequential damage resulting from a late notice of defect shall be for the account of the Customer.
5. In case of direct damages or consequential damages on aircraft parts which have been handed over to ZAS-Aviation, ZAS-Aviation is entitled to organize the repair or supply an alternative change part. With the exception of cases of intention the liability of ZAS-Aviation is limited to the market value of the aircraft or aircraft part, if a repair is not possible or only possible at unreasonably high costs. Proof of greater damage or loss has to be provided.
6. ZAS-Aviation shall not be liable for loss of and/or damage to items that are not firmly fixed to the aircraft part and the other contents of aircraft parts.
G. Realisation rights
1. Surrender of an aircraft or aircraft part may be refused until the full and complete payment of ZAS-Aviation’s claims in respect of the aircraft or aircraft parts concerned. In addition, a contractual lien on the aircraft or aircraft parts concerned will be created for ZAS-Aviation to secure the respective claim. If the customer is in default for longer than 60 days, has not raised any substantiated objections up to then and ZAS-Aviation has notified a corresponding action by the 75th day of default it may realize the aircraft or aircraft parts concerned in accordance with the statutory rules for the enforcement of liens and obtain satisfaction from the proceeds of realization.
H. Retention of title
1. If ZAS-Aviation has supplied aircraft or aircraft parts that are capable of being privileged it shall retain title in them until full payment of the purchase price or the claim for compensation for work.
2. If third parties claim own rights in ZAS-Aviation’s reserved property the customer shall object, point out the retention of title and inform ZAS-Aviation immediately.
3. If title to the aircraft or aircraft part concerned is lost through combining, mixing or other processing, ZAS-Aviation shall without further agreement become co-owner of the aircraft or aircraft part concerned in the ratio of the value.
I. Data protection
1. ZAS-Aviation shall have the right to pass on customer data insofar as this is necessary to safeguard its legitimate interests and there is no reason to assume that the customer's interest in the exclusion of transmission outweighs this.
2. ZAS-Aviation reserves all property rights, copyright and other industrial property rights in all documentation, drawings and/or other records that it makes available to its customers in physical or electronic form. These may not be passed to third parties.
J. Concluding provisions
1. All legal positions from all legal relations between ZAS-Aviation and its customers are governed by the laws of the Federal Republic of Germany. The application of the UN Sales Convention is excluded as far as permissible. On request each customer shall receive an English version, which can also be read on the ZAS-Aviation's homepage http://www.ZAS-Aviation.com.
2. The place of performance, fulfillment and payment for the obligations of customers towards ZAS-Aviation is Baden-Baden, Federal Republic of Germany. ZAS-Aviation reserves the right to sue its customers at the location of their general legal venue. In case of contracts with merchants Baden-Baden shall be deemed to be the agreed legal venue.
3. If any of these Standard Terms and Conditions are or become wholly or partially invalid this shall not affect the remaining terms and conditions.
Baden-Baden, January 15th, 2017
A. Validity of own and third-party Standard Terms and Conditions
1. The following Standard Terms and Conditions of ZAS-Aviation shall apply to all present and future contracts with its customers, meaning contracts for work, services and materials, governing contracts of sale for aircraft and aircraft parts (exchange parts, spare parts, accessories and additional parts), as well as any consulting services.
2. Deviating and/or supplementary own Standard Terms and Conditions from ZAS-Aviation customers shall not become contents of the respective contracts for work, services and materials and contracts of sale, even if ZAS-Aviation does not explicitly object to them and/or provides contractual services for its customers without reservation and/or accepts contractual services without reservation.
B. Conclusion and fulfillment of the contract, special customer obligations
1. Contracts for work, services and materials and contracts of sale that place ZAS-Aviation under obligations must be in writing, at all events written order and/or confirmation of order. Oral ancillary agreements do not apply and do not exist, if to confirmed in writing within 10 days. Written declarations and confirmations from ZAS-Aviation must be objected to in writing without delay; otherwise they shall be deemed to be approved.
2. Any item sent by the Customer to be exchanged, repaired, inspected and/or overhauled shall be sent to ZAS-Aviation carefully packed DDP to ZAS-Aviation’s location.
3. ZAS-Aviation shall be entitled to provide its contractual services, or have them provided, through third-party companies.
4. ZAS-Aviation may withdraw from the contract in the event of the occurrence of force majeure (including embargo and/or import/export restrictions in the area of material procurement) and in case of unforeseeable obstacles to performance and/or obstacles to performance that cannot be overcome through acceptable expense. This shall not include obstacles to performance for which ZAS-Aviation is responsible.
C. Offers, quotations/ costs estimates, down payments
1. All offers and quotations/ costs estimates from ZAS-Aviation are without commitment until they are accepted by its customers.
2. If it is seen after the award of the contract (among other things during dismantling, evaluation or other unforeseeable reasons) that additional work is necessary to fulfill the contract and/or there is a demand for additional material, ZAS-Aviation shall not be bound by quotations and/or concluded contracts. If such cases concern the restoration and/or maintenance of airworthiness the necessary follow-up or supplementary contracts shall be deemed to be awarded automatically, unless the customer objects to ZAS-Aviation within two weeks of knowledge and reference to this effect of fiction. Until then all ZAS-Aviation’s contractual obligations shall be suspended.
3. ZAS-Aviation may make the implementation of the contract dependent on the prior payment of a reasonable down payment and in addition provide partial deliveries and invoice the latter.
D. Delivery, delivery dates and acceptance
1. Delivery dates or delivery periods shall not commence before the award of the contract, the provision of aircraft or of aircraft parts, the documents that have otherwise to be made available and the necessary approvals or before the part payments to be provided by the customers. ZAS-Aviation may demand approval of a suitable extension to the performance period if the violation of the limit was not foreseeable when the contract was awarded. Customers shall not be entitled to set a period of grace with a threat to rescind the contract until is has expired.
2. The handover of aircraft parts shall be carried out in principle from ZAS-Aviation’s location. The latest edition of the international trade terms (INCOTERMS) shall apply.
3. ZAS-Aviation may demand formal acceptance and make the handover of aircraft parts dependent on the prior payment of its provisional or final invoice. The handover shall take place in principle within five working days of the notification of completion. Following this ZAS-Aviation shall be entitled to store the aircraft part concerned against reimbursement of the storage charges. The accruing costs must be paid before the handover. ZAS-Aviation shall only be liable in case of intention or gross negligence for damage caused during storage.
4. If ZAS-Aviation supplies spare or accessory parts on exchange base its Customer shall return an acceptable core without compensation at its own expenses and its title of ownership and appropriate technical documents attached within 30 days after the availability of the exchange item. A core part shall be deemed to be acceptable if it has the agreed part number (P/N), shows only the usual wear and tear and it is in a condition that can be repaired economically. In other cases ZAS-Aviation reserves the right to make an additional charge in the amount of the value of an acceptable core. The exchange item becomes the Customer’s property. Upon delivery of the exchange item to the Customer, the removed one returns to ZAS-Aviation property. At that time, the Customer will save the removed core for ZAS-Aviation what substitutes the handover of the property. The Customer ensures unrestricted power of disposition on the removed core. The Customer cannot request to get back the initial item. If the Customer fails to return the core part within the said period of time, ZAS-Aviation may invoice additional charges for the exchange item based on the price for new items.
5. If part and/or item are exported directly by sea, air, and road to a country outside the European Union, ZAS-Aviation will take over the responsibility to provide appropriate customs documentation to the Customer or its designated forwarder. The Customer guarantees correct closure of the respective customs procedure on leaving the European Union. In case of non-compliance, the Customer shall be liable for the full amount of any additional costs and charges imposed on ZAS-Aviation by national tax administration.
E. Prices, payment
1. All invoice prices shall be due for payment immediately without deduction. All payments shall be made without costs.
2. Complaints about invoices shall be made within seven days of receipt of the invoice. Invoices shall be deemed to be received no later than the third day after the date of the invoice. The customer shall bear the burden of proof of receipt of the invoice at a later date. ZAS-Aviation does not have to accept delayed complaints.
3. Terms of payment granted to the customer shall lapse and outstanding amounts due to ZAS-Aviation shall become due immediately if the customer petitions for bankruptcy or if its financial situation deteriorates to such an extent that the claim or claims appear endangered, if the customer made a false statement on its creditworthiness or if the cover promised by a credit underwriter insurer is revoked or reduced.
4. Setting counterclaims off against claims by ZAS-Aviation shall only be permitted if the counterclaims are not disputed, or if they are ready for discussion or legally established.
5. ZAS-Aviation prices are exclusive any charges resulting from administrative and legislative regulations in force in the Customer’s country and of any customs and duty charges, which are the Customer’s responsibility.
6. Payment shall in no case be postponed or apportioned for any reason whatsoever. Failure to pay any outstanding amount in due time shall render all amounts due by the Customer immediately payable. In the event of a payment delay, the Customer will be, in full right, liable for a 12 (twelve) % annual interest rate or any higher rate required by law, for the period lapsed between due date and the date upon which funds were made available on ZAS-Aviation’s bank account. In the event of a delay or failure by the Customer to pay, ZAS-Aviation will be entitled to suspend performance of all current contracts/orders or to rescind the contract by written notice and retain as liquidated damages any initial payment made by the Customer. The retention of any such payment shall not preclude ZAS-Aviation from seeking compensation from the Customer for further damages and/or costs. The Customer shall be entitled to show and prove that the actual damage caused by such default to ZAS-Aviation is considerably less than the amount retained as liquidated damages. The Customer shall not be entitled to claim compensation for damages on the grounds of non-availability of parts or non- performance of services.
7. Accordingly, in the event that the Customer fails to pay according to the contractual payment terms, ZAS-Aviation reserves the right to rescind the contract through notification sent by registered letter and, if the items/spare parts are already delivered, to demand that said items be returned.
F. Guarantee, liability
1. Guarantee services (work and material) shall be provided at ZAS-Aviation’s location. The customer shall bear all extra costs of agreed deviations.
2. In case of the purchase of aircraft or aircraft parts ZAS-Aviation shall be given an initial opportunity in the framework of the guarantee to provide subsequent performance under §439 (1) German Civil Code (BGB). The statutory liability of ZAS-Aviation for injury of life, body or health shall remain unaffected by the following limitations. With the exception of cases of breaches of a material contractual obligation the reasons for claims for damages of whatever kind shall be limited to intention and gross negligence and in cases of gross negligence with regard to the amount to the respective purchase price for the aircraft or aircraft part. Proof of greater damage or loss would have to be provided. Material obligations are those obligations whose fulfillment enables the due fulfillment of the contract in the first place and in whose compliance the customer may trust as a rule. In case of contracts of any kind for work and materials ZAS-Aviation shall initially be given an opportunity for subsequent performance. Rights under § 634 No. 2 to 4 BGB may only be claimed after unsuccessful subsequent performance. With the exception of intention the amounts of claims for compensation of any kind shall be limited to the respective compensation for work under the contracts for work and service and for work, labor and materials. Proof of greater damage or loss has to be provided.
3. Assignment of all guarantee claims to third parties is excluded.
4. Consequential damage resulting from a late notice of defect shall be for the account of the Customer.
5. In case of direct damages or consequential damages on aircraft parts which have been handed over to ZAS-Aviation, ZAS-Aviation is entitled to organize the repair or supply an alternative change part. With the exception of cases of intention the liability of ZAS-Aviation is limited to the market value of the aircraft or aircraft part, if a repair is not possible or only possible at unreasonably high costs. Proof of greater damage or loss has to be provided.
6. ZAS-Aviation shall not be liable for loss of and/or damage to items that are not firmly fixed to the aircraft part and the other contents of aircraft parts.
G. Realisation rights
1. Surrender of an aircraft or aircraft part may be refused until the full and complete payment of ZAS-Aviation’s claims in respect of the aircraft or aircraft parts concerned. In addition, a contractual lien on the aircraft or aircraft parts concerned will be created for ZAS-Aviation to secure the respective claim. If the customer is in default for longer than 60 days, has not raised any substantiated objections up to then and ZAS-Aviation has notified a corresponding action by the 75th day of default it may realize the aircraft or aircraft parts concerned in accordance with the statutory rules for the enforcement of liens and obtain satisfaction from the proceeds of realization.
H. Retention of title
1. If ZAS-Aviation has supplied aircraft or aircraft parts that are capable of being privileged it shall retain title in them until full payment of the purchase price or the claim for compensation for work.
2. If third parties claim own rights in ZAS-Aviation’s reserved property the customer shall object, point out the retention of title and inform ZAS-Aviation immediately.
3. If title to the aircraft or aircraft part concerned is lost through combining, mixing or other processing, ZAS-Aviation shall without further agreement become co-owner of the aircraft or aircraft part concerned in the ratio of the value.
I. Data protection
1. ZAS-Aviation shall have the right to pass on customer data insofar as this is necessary to safeguard its legitimate interests and there is no reason to assume that the customer's interest in the exclusion of transmission outweighs this.
2. ZAS-Aviation reserves all property rights, copyright and other industrial property rights in all documentation, drawings and/or other records that it makes available to its customers in physical or electronic form. These may not be passed to third parties.
J. Concluding provisions
1. All legal positions from all legal relations between ZAS-Aviation and its customers are governed by the laws of the Federal Republic of Germany. The application of the UN Sales Convention is excluded as far as permissible. On request each customer shall receive an English version, which can also be read on the ZAS-Aviation's homepage http://www.ZAS-Aviation.com.
2. The place of performance, fulfillment and payment for the obligations of customers towards ZAS-Aviation is Baden-Baden, Federal Republic of Germany. ZAS-Aviation reserves the right to sue its customers at the location of their general legal venue. In case of contracts with merchants Baden-Baden shall be deemed to be the agreed legal venue.
3. If any of these Standard Terms and Conditions are or become wholly or partially invalid this shall not affect the remaining terms and conditions.
Baden-Baden, January 15th, 2017