GENERAL CONDITIONS - Maintenance, overhauls and repair

1.                          PREAMBLE

1.1                       These general conditions (hereinafter “General Conditions”) shall apply on repairs, maintenance and overhaul as well as any other services (hereinafter collectively referred to as “Services”) that Patria Helicopters AB (hereinafter “Patria”) may perform on helicopters and other aircraft and on spare parts to helicopters and other aircraft (hereinafter collectively referred to as “Aircraft”), and sale of helicopter and aircraft spare parts (hereinafter collectively referred to as “Goods”) when  Patria and the customer (hereinafter “Customer”) agree in writing, or Patria acknowledge order, or in other similar manners thereto.

1.2                       Deviations from the General Conditions shall not apply unless agreed in writing by Patria and the Customer (hereinafter together the “Parties” or each individually a “Party”).

 

2.                          QUOTATION AND ORDER 

2.1                       If a quotation submitted by Patria does not contain a period of validity, then the quotation shall be deemed to expire ten (10) days after it has been issued.

2.2                       Thirty (30) days after Patria quotation on additional work after inspection has expired, Patria will charge a price amounting to one thousand (1.000) SEK excluding Value Added Tax per day the goods remains at Patria without a valid order to continue quoted work.

2.3                       If Patria receives an order for Services from the Customer within the period of validity of quotation, such order shall not be binding upon Patria until Patria has confirmed the order in writing.

2.4                       Data and information in price lists or similar documentation is binding for Patria only if agreed by Patria in writing.

2.5                       Agreement on the provision of the Services and/or Goods between Patria and the Customer (hereinafter “Agreement”) shall be formed when the Customer has accepted without modifications and reservations the quotation by Patria, or if the Parties have otherwise mutually agreed upon the performance of the Services/provision of Goods. The Agreement contains these General Conditions and constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. No terms, conditions, representations, warranties or covenants contained in any correspondence, catalogue, or in any other form shall be applicable unless incorporated herein by express written agreement of the Parties hereto.

 

3.                          DELIVERY AND TIME FOR DELIVERY

3.1                       The Customer shall deliver the Aircraft to Patria under the term “DDP” (INCOTERMS 2010) at patria ordinary facilities, unless otherwise agreed in writing. Patria delivery will be effected "Ex works" (INCOTERMS 2010) at Patria ordinary facilities, save when the Services have been performed at a place assigned by Patria. In such case the delivery, unless otherwise agreed, shall be at the place assigned by Patria. 

3.2                       If the Customer fails to receive delivery after Patria has given notice that the Goods/Aircraft are ready for delivery, Patria may, but is not obligated to, arrange storage of the Goods/Aircraft at the Customer's risk and expense.

3.3                       Patria shall use reasonable efforts to ensure the delivery of the Goods/Aircraft at the agreed time for delivery.

3.4                       If, instead of a fixed date for delivery, the Parties have agreed on a period within which delivery shall take place, such period shall start to run at the last of the following events:

(i)                         the day when the agreement on the delivery time was entered into,

(ii)                        Patria’ reception of the Goods/Aircraft,

(iii)                       Patria’ reception of necessary instructions and/ or

technical data; or

(iv)                       Patria’ reception of demanded security and/or advance payment.

3.5                       The Customer shall be deemed to have accepted the Services performed and Goods delivered by Patria as being in accordance with the Agreement unless the Customer has notified Patria of any non-conformity within three (3) days following the last day on which the Services were performed.

 

4.                          DELAY

4.1                       If Patria finds that it will not be able to del­iver at the agreed time for delivery, Patria shall as soon as possible notify the Customer, stat­ing the reason for the delay and if possible the time when deliv­ery can be ex­pected.

4.2                       If a delay is caused by a circumstance that under Article 12.1 shall be considered a case of relief or by an act of or omission of the Customer, or if a delivery from a sub-contractor is delayed or if the manufacturer of the Goods (hereinafter “Manufacturer”) or a competent public authority (hereinafter “Authority”) requires modification of the Goods/Aircraft or if the Goods/Services do not, due to circum­stances that cannot be consi­dered gross negligence by Patria, meet agreed specif­ications, the time for deliv­ery shall be extended by a reasonable period. The time for delivery shall be extended even if the reason for delay occurs after the origi­nal time for deliv­ery.

4.3                       If the Customer anticipates that the Services cannot be commenced as agreed in the Agreement due to reasons attributable to the Customer, the Customer shall notify Patria in writing stating the reason and the time when the Customer anticipates that the Services could commence. Patria may by notice require the Customer to set a final reasonable time for when the Services should commence. Any additional costs related to such delay shall be borne by the Customer.

4.4                       If Patria does not deliver the on agreed time and Patria is not entitled to extension of delivery, the Customer is enti­tled to liquidated damages from the date on which deliv­ery should have taken place.

The liquidated damages shall be payable at a rate of point five (0.5) percent of the agreed price for the Services actually performed on the Goods in delay for each complete week of delay. The liquidated damages shall not exceed five (5) percent of the agreed price for the Services actually performed on the Goods in delay.

The liquidated damages become due thirty (30) days after Patria' receipt of the Customer's written demand of such compensation.

The Customer loses its right if he has not lodged a claim in writing within thirty (30) days after delivery should have taken place.

4.5                       If the Customer is entitled to maximum liquidated damages according to clause 443, and if the Goods are still not deliv­ered/Services actually performed, the Customer shall in writing demand delivery within a final reason­able limit of time, which shall be not less than two (2) weeks.

If Patria does not deliver within such final period and this is not due to any circum­stance for which the Customer is responsible, then the Customer may, by notice in writing to Patria, terminate the Agreement.

In case of such termination the only remedy available to the Customer is liquidated damage under clause 4.4.

4.6                       The Customer is, in case of delay of delivery, not entitled to any other remuneration but liquidated damage.

 

5.                          PRICE

5.1                       The agreed price and any other amount payable by the Customer pursuant to this Agreement or under any Contract is exclusive of any value added tax or any other tax of a similar nature. If any such tax is or becomes chargeable and, under the applicable tax regulations it is the seller’s responsibility to collect such tax and account for it to the applicable tax authority, the Customer will pay to Patria (in addition to and at the same time as paying that amount) a sum equal to the total of that tax. If any such tax is or becomes chargeable and, under the applicable tax regulations it is the Customer’s responsibility to collect such tax and account for it to the applicable tax authority, the Customer will pay such tax to the applicable tax authority in addition to any amount it pays Patria under this Agreement or any Contract.

                             In addition to the agreed price the Customer shall pay where applicable, all duties, withholding and other taxes, customs fees and charges and all charges and fees by a classification or inspection society. All such documentation or approvals which are required by applicable laws, and any applicable modifications of such laws, shall be the responsibility of and paid by the Customer.

                             Where this Agreement or any Contract requires the Customer to reimburse Patria for any costs or expenses, the Customer will also at the same time pay and indemnify Patria against all value added tax or other tax of a similar nature incurred by Patria in respect of those costs or expenses to the extent that Patria reasonably determines that it is not entitled to credit or repayment of that tax.

5.2                       If not otherwise agreed, Patria is entitled to charge cost increases due to circumstances, which Patria reasonably could not have avoided or which are caused by the Customer, such as, without limitati­on, increase of costs due to modifications ordered by any authority or Manufacturer, increases of costs for spare parts or other equipment, costs for customs duty and advance payments or deposits for such duty and interest for such deposits, increases of taxes and other charges or fluctuation in exchange rates in relation to the Swedish Krona if the Agreement wholly or partially is concluded in another currency or if Patria cost for spare parts or other equipment is influenced by such fluctuation or charges, provided that the fluctuation during the contractual relationship is equal to or exceeds two (2) percent.

5.3                       Patria will carry out its work at Patria ordinary facilities and during normal working hours. For overtime work ordered by the Customer or emergency service or work performed outside Patria facilities, Patria is entitled to charge the Customer every additional cost in connection with such work.

5.4                       Regardless of the value of the work carried out by Patria, Patria shall always be entitled to charge a price amounting to two thousand five hundred (2.500) SEK excluding value added tax (Minimum Order Value).

 

6.                          PAYMENT

6.1                       Payment shall, unless otherwise agreed, be made when Patria has given notice to Customer that the Goods/Aircraft are ready for delivery. Patria is entitled to designate to the Customer the place and means of payment as well as the currency of payment. If not otherwise designated, all payments to Patria by the Customer shall be made by a wire transfer to a bank account in Sweden designated by Patria within thirty (30) days from the date of the invoice. Payment shall be made in full, without any set off, counterclaim or deduction.

6.2                       If the Customer fails to pay by the agreed date, Patria is entitled to an interest on delayed payments at a rate of two (2) percent for each month or part of month from the day on which payment became due, until Patria has received a final and unconditional payment in full. The Customer shall pay Patria all costs related to the collection of overdue amounts, including reasonable attorneys' fees.

6.3                       Patria is at any time entitled to demand security acceptable to Patria for payment and/or advance payment.

6.4                       If Patria has reason to assume that the Customer will not fulfil its obligations under this Agreement, Patria may immediately suspend the work on the Aircraft and demand security acceptable to Patria and/or advance payment in accordance with Article 6.3. If secur­ity, acceptable to Patria, is not provided Patria­ may terminate the Agreement forthwith.

6.5                       If the Agreement is terminated for any reason, Patria is entitled to dismantle and repossess any property that Patria has inserted in the Aircraft without any obligation to install the dismantled or exchanged parts of the Aircraft.  If the termination is due to acts or omissions of the Customer, Patria is also entitled to claim compensation for the loss it has suffered, including indirect loss, loss of profit and any other consequential economic loss.

6.6                       Any assistance or work performed by Patria outside the scope of the Agreement shall be charged as extra work in accordance with Patria's standard rates then in effect and with these General Conditions.

 

7.                          RESERVATION OF TITLE

Goods delivered by Patria shall remain the property of Patria until paid for in full, and may be repossessed by Patria in accordance with Article 8.

 

8.                          SECURITY

8.1                       The Customer hereby grants Patria, a continuing security inter­est in all the Customer's Goods/Aircraft possessed by or within Patria control, for any demand of payment or damages that Patria, its affiliates, subsidi­aries or associated companies may have on the Customer or its parent or its affiliates, subsidiaries or associated companies. The security interest does also include any right to insur­ance compensation that may be dis­bursed with respect to the Goods/Aircraft within Patria' control. In addition hereto Patria is entitled to set off receivables against debts to the Customer or its parent or its affiliates, subsidiaries or associated companies. The Customer hereby waives any and all claims, defenses, and causes of action that the Customer may have in connection with the exercise of any such security interest by Patria.

8.2                       If Patria, its affiliates, subsidi­aries or associated companies do not receive payment for the amount due within two months, Patria is entitled to sell the Goods/Aircraft as Patria may see fit without observing the provisions in chapter 10 sec­tion 2 of the Swedish Commercial Code.

Patria is also entitled repossess the Goods/Aircraft referred to in Art. 7 immediately.

The Customer shall, at Patria request, sign a written notice of such security to any third party.

 

9.                          UNCOLLECTED GOODS

9.1                       Should Customer’s Goods/Aircraft not have been collected six months after the time at which they were ready to be collected, then Patria shall no longer be responsible for the Goods/Aircraft.

                            Patria may at that time sell the Goods/Aircraft or, should the Goods/Aircraft be worth less than twenty-five thousand (25 000) SEK, dispose of the Goods/aircraft in whatever other way Patria sees fit.

                            If the Goods/Aircraft are sold, then Patria shall be entitled to keep the part of the proceeds corresponding to Patria’ claim on the Customer as well as any other costs incurred by Patria in connection with the storage or sale of the Goods/Aircraft.

 

10.                       LIABILITY FOR DEFECTS       

10.1                     Patria shall, at its own cost and expense, remedy defective Services resulting from faulty workmanship car­ried out by Patria at Patria' facilities by repairing or reperforming, at its sole discretion, such defective Services. Patria' liability is limited for six (6) months or three hundred (300) operating hours, which­ever occurs first, from the time when Patria given notice to the Customer that the Goods are ready for delivery.

10.2                     The Customer shall have the responsibility to establish that its claim is covered by this warranty. Patria undertakes no liability for defects from faulty workm­anship in Services carried out by a third party or defects in equip­ment from faulty design or materials delivered to Patria by a third party. Patria shall use its best endeavours to extend to the Customer, if requested, the benefit of any warranty or all Patria rights to claim compensation for defects from faulty workm­anship carried out by a third party or defects in equipment from faulty design or materials delivered to Patria by a third party. For any product or part not manufactured by Patria, the Customer shall only be entitled to the benefit of any warranty or guarantee given by the Manufacturer of such product or part, to the extent that it is assignable by Patria to the Customer.

10.3                     Patria' undertaking to remedy defects shall only apply if the Goods/Aircraft are used or maintained in a correct way under normal operations, if mothballing and reactivation after mothballing have been carried out in a correctly manner and if correct fuel lubricants have been used. Patria is not, in any case, liable for damages resulting from overloading or corrosion. Patria shall not be liable for any defect due to or arising in connection with:

                             (i) any materials, components, tools, designs or software provided by the Customer;

                             (ii) negligence or wilful misconduct of the Customer;

                              (iii) improper service work, installation or alterations carried out by the Customer;

                             (iv) normal wear and tear;

                             (v) use of unsuitable material or consumables by the Customer; or

                             (vi) any use, service or operation of any equipment, parts or components upon which Service was performed which is not in conformity with manuals, instructions or specifications provided by the Manufacturer of such equipment, parts or components or which is otherwise not in accordance with normal industry practice.

10.4                     The Customer shall immediately take appropriate steps to prevent any defect from becoming more serious. The Customer shall notify Patria in writing of a defect without delay after the defect has become apparent, and not later than two weeks after the expiration of the period defined in clause 10.1. The notice shall contain a detailed description of how the defect manifests itself and the Customer shall state if he wishes to requisite Patria guarantee and the information there­in shall be verified by the guarantee-card and logbook and jour­nal if it is prescribed that such log­book or journal shall be kept. Patria’ liability is subject to the dismantling of the Aircraft or part thereof.

10.5                     If the Customer fails to notify Patria of a defect in writing within the time limits set forth in Article 10.4 or if the notice does not contain the information required, the Customer shall forfeit its right to make any claim in respect of the defect.

10.6                     Remedy of the defect shall take place at Patria ordinary prem­ises. All transports in connection with repair or replac­ement shall be at the Customer's risk and expense. Also, the cost resulting from dismantling or reinstallation shall be borne by the Customer. Any replaced parts shall become Patria's property.

10.7                     The Customer shall bear all and any increased costs for remedying a defect if the work must be performed outside Patria' prem­ises and/or beyond ordi­nary working hours.

10.8                     If the Customer gives such notice as described in Article 10.4 and no defect is found for which Patria is liable, Patria shall be entitled to compensation for the work and costs which it has incurred as a result of the notice.

10.9                     If Patria fails to fulfil its obligation to remedy a defect for which Patria is liable within a reasonable time, the Customer shall by written notice require it to do so within a final time, which shall not be less than two (2) weeks.

If Patria fails to fulfil its obligations within that time limit, the Customer may apply the provisions of Article 4.4 – 4.6.

10.10                   Notwithstanding the provisions of Articles 10.1-10.9 Patria shall have no liability for any defects in the Goods/Services for more than twelve (12) months after Patria given notice to the Customer that the Goods/Aircraft are ready for delivery.

10.11                   This warranty shall be the sole remedy for any Defects in Services and Goods, and is in lieu of any other warranties, guarantees, obligations and liabilities express or implied against non-conformity or defects. The Customer hereby waives all other remedies, warranties, guarantees and liabilities, express or implied, arising by law or otherwise (including without limitation fitness for purpose or merchantability). Patria shall in no case be liable for any consequential or indirect damages that a defect may cause. This includes, but is not limited to, loss of production, loss of profit, and any other conse­quential or indirect damages.

 

11.                       PRODUCT LIABILITY etc.

11.1                     Patria shall not be liable for loss or damage to property or, death or injury to persons caused by the Goods/Aircraft or technical specifications, save for if the Customer can prove that Patria has caused the incident due to gross negligence or intent.

11.2                     The Customer shall indemnify and hold harmless Patria to the extent that Patria incurs liability towards any third party due to damage, loss, death and injury, caused by the Goods/Aircraft.

11.3                     Patria shall under no circumstance be liable for loss of production, loss of profit or any other indirect consequential econo­mic loss.

11.4                    Patria liability is limited to an amount equal to actual payment of insurance compensation from its liability insurer or the amount actually paid by the Customer for the Services/Goods pertaining to the damages, whichever is smaller.

 

12.                       GROUNDS FOR RELIEF (FORCE MAJEURE)

12.1                     The following circumstances shall be considered as grounds for relief if they impede the performance of the Agreement or makes performance unreasonably onerous; labour disputes or conflicts and any other circumstance beyond the control of the Parties such as fire, war, mobilisation or military call up a com­parable scope, requisition, seizure, instructions by authority, currency restric­tions, insurrection and civil commotion, shortage of transport, general non-availability of materials, restric­tions in the use of power and defects or delays in deliveries by subcontractors caused by any such circumstance as referred to in this clause.

A Party shall immediately in writing notify the other Party if an event referred to above should occur.

12.2                     Notwithstanding other provisions in the Agreement, either Party shall be entitled to terminate the Agreement without incurring any liability by notice in writing to the other Party if the performance of the Agreement is delayed more than six months by reasons stipulated in Art. 12.1.

12.3                     If grounds for relief prevent the Customer from fulfilling its obligations, the Customer shall compensate Patria for expenses incurred in securing and protecting the Goods.

 

13.                       CONFIDENTIALITY, INTELLECTUAL PROPERTY AND EXPORT LICENSES

13.1                    Neither Party shall copy or disclose to a third party any document or data provided by the other Party without the prior written consent of the other Party or use them for purposes other than those for which they were provided. However, Patria shall be entitled to disclose information to other companies within Patria Group on the condition that Patria shall be liable to ensure that such companies comply with this obligation of confidentiality. This confidentiality obligation shall be in force until five (5) years have passed from the disclosure of the information at stake. This confidentiality obligation shall not extend to information that is generally available or otherwise public without a breach of the Agreement, a Party has received from a third party without any obligation of confidentiality, provided that such third party was entitled to provide such information without any breach of its obligations, was in the possession of a Party prior to receipt of the information from the other Party without any obligation of confidentiality, or a Party has independently developed without using any confidential information, as witnessed by written records.

13.2                    The intellectual property rights associated with the Services or any document or data provided by Patria in connection therewith shall remain Patria's property. The Customer shall defend, indemnify and hold harmless Patria against all claims, losses and damages, including reasonable attorneys' fees, arising out of or resulting from any reuse, modification, reproduction or publication of Patria's intellectual property documents or data.

13.3                    The Agreement and execution of it shall be subject to valid export license or import license of the appropriate governmental authorities. In the event governmental authorities refuses to approve the export license or import license or cancels such an approved license, Patria shall not be liable to provide any Goods or Services if and to the extent such provision would be prevented by the lack of such license nor Patria shall be liable to pay any compensation, including but not limited to any direct, indirect or consequential damages. Failure to get an export license or import license or cancellation thereof shall be deemed to be a force majeure situation under Art. 12.

 

14.                       GOVERNING LAW

The Agreement shall be governed and by and construed in accordance with Swedish law.

 

15.                       DISPUTES

15.1                     All disputes, claims or differences which arise out of or in connection with the Agree­ment shall be finally settled by arbitration in Sweden pursuant to the rules of the Swedish Arbitration Act of 1999.

15.2                     The place of Arbitration shall be Stockholm and the language to be used shall be English.

15.3                     The arbitration tribunal shall apply the Swedish Code of judicial Proce­dure provisions regarding voting and dispersion of legal costs.

15.4                     Patria may, however, claim amounts due, interest and reimburse­ments of costs and expenses included, and payable by the Customer, at any formally competent court or authority in Sweden, or in any other competent jurisdiction.