Terms & Conditions
General Terms & Conditions
of Air Alliance GmbH
(hereinafter referred to as “Air Alliance”)
Airport Siegerland, 57299 Burbach
§ 1 General applicability, scope of application
Air Alliance’s contractual partners are hereinafter referred to as “Purchaser” in the context of purchase transactions, and as “Client” in the context of maintenance and repair contracts.
(1) The supplies, services, offers, order confirmations, contracts and orders of Air Alliance are subject exclusively to the terms and conditions set out below. The General Terms & Conditions are incorporated herein unless Air Alliance and the Purchaser / Client specifically agree otherwise in writing. The General Terms & Conditions thus apply to all future purchase transactions as well as maintenance and repair contracts even if they are not specifically established or referenced.
(2) Upon the receipt of the object of purchase or service, at the latest, these General Terms & Conditions are deemed to have been accepted. Air Alliance does not recognise any conflicting or deviating terms on the part of its contractual partners unless it agrees otherwise in writing; Air Alliance hereby objects to any Purchaser / Client counter-confirmations referencing such party’s terms and conditions or terms of purchase.
(3) Any agreement made between Air Alliance and the Purchaser / Client for the purpose of the implementation in their contract must be made in writing, as do any changes or amendments thereto, including this formal requirement.
(4) The General Terms & Conditions apply to business relationships with consumers, entrepreneurs and merchants. Insofar as these General Terms & Conditions contain provisions that may effectively be established only with entrepreneurs and merchants and are otherwise prohibited by law, such provisions are deemed to have been specifically agreed with such entrepreneurs and merchants. Consumers are subject to applicable legal provisions, with any ineffective provision to be replaced by an effective one that approximates, to the extent possible, the economic purpose of the ineffective provision.
§ 2 Offer and conclusion of a contract
(1) The offers submitted by Air Alliance are subject to change and non-binding in nature. Notices of acceptance as well as orders are not effective until confirmed by Air Alliance in writing (including facsimile and email). Air Alliance does not permit notices of acceptance or orders to be submitted in its name without such written confirmation, which is why contractual partners must not rely on notices of acceptance or orders that Air Alliance has not confirmed in writing (including facsimile and email).
(2) Drawings, depictions, illustrations, measurements, weights and other performance data are not binding in nature unless specifically agreed otherwise in writing. Air Alliance reserves the right to change specifications at any time and without prior notice. Air Alliance is not bound in cases of obvious errors.
(3) Air Alliance staff is not authorised to enter into oral subsidiary agreements or to make oral warranties which exceed beyond the content of the written agreement with Air Alliance.
(4) In the event that goods are ordered electronically, Air Alliance will immediately confirm receipt. While the confirmation itself does not constitute binding acceptance, it may be combined with a notice of acceptance. Air Alliance stores the contract’s wording and will transmit it to the Purchaser / Client by email, along with these General Terms & Conditions, upon request.
(5) The agreement comes into effect if and when (i) the Purchaser / Client accepts the offer and Air Alliance posts an order confirmation or (ii) the requirements of a commercial notice of confirmation are given, or (iii) Air Alliance has bindingly accepted an order or (iv) if and when Air Alliance has started with those works connected with the execution of the order in a manner apparent to the customer.
(6) The object of any contract is always such merchandise (aircraft) or such maintenance or repair service as described in the Air Alliance order confirmation or offer. Other or more specific characteristics or qualities as well as any exceeding purpose of use or other condition of performance of the contract are only agreed if and when confirmed by Air Alliance in writing.
(7) In the event that the Purchaser / Client makes material changes to the contract during the term thereof, Air Alliance is entitled to charge the Purchaser / Client for any service ordered and provided to date.
§ 3 Rates, compensation
(1) Unless specifically stated otherwise, Air Alliance will consider itself bound by the terms of its offers for a period of 30 days from the date thereof. Otherwise, the prices stated in Air Alliance’s order confirmation plus sales tax, if applicable, apply. Additional supplies and services are charged separately.
(2) Unless specifically noted otherwise in the order confirmation, rates are EXW (ex works).
(3) No cash discount is applied unless otherwise agreed in writing.
(4) In the event that Air Alliance itself works on the aircraft, Air Alliance is entitled – but not obligated – to perform any necessary preliminary work independently and without consulting the Purchaser / Client if and to the extent that doing so is in the economic interest of the Purchaser / Client or serves the purpose of timely completion. Work of this kind is charged on an hourly basis. If any additional costs should emerge from this, Air Alliance is entitled to invoice these additional costs without the previous allowance of the Purchaser / Client. The Purchaser / Client implicitly gives his allowance hereto with the conclusion of the contract. However, if such added costs exceed 15% of the amount of the agreed purchase price, the obtaining of the explicit allowance is required.
(5) The Purchaser / Client must pay its own potentially travel expenses (to Siegerland airport or another place of transfer).
§ 4 Terms of payment
(1) Unless agreed otherwise, Air Alliance’s invoices are due and payable in full immediately upon issuance.
(2) Air Alliance is entitled, even in the presence of conflicting terms on the part of the Purchaser / Client, to apply payments against his or her oldest debts. Air Alliance will inform the Purchaser / Client about the way of the carried out clearing. In the event that Air Alliance has already incurred costs and/or interest, it may apply payments first to such costs, then to any interest and finally to the principal debt.
(3) Payments are not deemed to have been made unless and until Air Alliance may fully dispose of the amount in question. In the case of acceptance of checks, payments are deemed to have been made once a check has been irrevocably redeemed.
(4) In the event that the Purchaser / Client falls behind on payments due, all claims are payable immediately unless the Purchaser / Client can prove that the delay in payment is not attributable to him. Air Alliance is entitled to charge damage for delay and, after the lapse of any grace period which has first been allotted by Air Alliance, rescind the agreement.
(5) If Air Alliance becomes aware of circumstances raising questions about the creditworthiness of the Purchaser / Client, including but not limited to returned checks or the discontinuation of payments, Air Alliance is entitled to call due any remaining debt even if it accepted checks. In this case, Air Alliance is further entitled to demand advance payments or security.
§ 5 Delivery and performance periods, delivery and default damages
(1) Delivery periods and deadlines are primarily evident in order confirmations and may additionally further be stated in offers. They are non-binding in nature and should be considered estimates. Binding deadlines are subject to separate written agreements. At the earliest, delivery periods commence upon the settlement of all technical questions.
(2) Air Alliance is not responsible and bears no liability for delays in delivery and performance due to Force Majeure or events that more than just temporarily compromise Air Alliance’s ability to effect delivery, including but not limited to strike, lock-out, official directives, etc., also if and when these occur at suppliers of Air Alliance or at their sub-suppliers, even if binding deadlines were established. In the presence of Force Majeure or such event, Air Alliance is entitled to postpone delivery or performance for as long as such hindrance persists plus reasonable start-up time or rescind this agreement. The Purchaser / Client may in these cases terminate the agreement only if and when it can no longer reasonably be expected to wait. In these cases the liability of Air Alliance is excluded.
(3) In the event that the estimated date of delivery / completion is not observed, Air Alliance is to be allotted a reasonable grace period to render performance or take remedial action. Only upon the lapse of such grace period may Air Alliance find itself in default – unless it seriously and finally refused performance. The need to allot a grace period also applies if a specific calendar date was set for delivery or completion. Only after such grace period has lapsed without results the Purchaser / Client is entitled to rescind the agreement and demand damages. In this case Air Alliance is entitled to charge any service rendered to date if and to the extent that it is of any economic use to the Purchaser / Client.
(4) The observation of Air Alliance’s obligation to discharge its duties of delivery and performance is contingent on the timely and proper satisfaction of the Purchaser’s / Client’s obligations, with Air Alliance reserving the right to cite non-performance.
(5) In the event that the Purchaser / Client fails to render timely acceptance or culpably violates other duties of cooperation, Air Alliance is entitled – without prejudice to any other claims or rights – to indemnification for any damages incurred as a result, including added expenditures.
Default of acceptance causes the risk of accidental deterioration or demise to be transferred to the Purchaser / Client.
In the event that Air Alliance rescinds the agreement, damages amounting to 15% of the net purchase price apply and may be set off against down payments made by the Purchaser / Client, if any. The Purchaser / Client is free to furnish proof to the effect that Air Alliance suffered no or lesser damages. Other legal claims for damages are not affected.
§ 6 Transfer of risk
(1) Basically it is the Purchaser’s / Client’s obligation to collect the merchandise (aircraft) at the domicile of the debtor. The Purchaser / Client bears the risks associated with transport. Accordingly, the risk of any accidental deterioration (damage) or demise (total loss) caused by non-affiliated third parties passes to the Purchaser / Client as soon as the object of purchase is handed over to it or readied for collection on Air Alliance’s premises as per agreement.
(2) In the presence of a delivery agreement, the risk passes to the Purchaser / Client as soon as the goods (aircraft) are handed over to the transporting party – be it Air Alliance, the Purchaser / Client itself or a third party.
(3) In the event that the transfer is delayed for reasons attributable to the Purchaser / Client, the risk is transferred to it as soon as the goods in question are ready for collection.
(4) Upon request, Air Alliance will assign to the Purchaser / Client any claim it may hold against non-affiliated third parties as a result of the deterioration or demise of an object of purchase.
§ 7 Warranties
(1) Liability for defects is based on the agreement entered into with respect to the condition of the goods. In the case of aircraft, only the manufacturer’s product description amounts to such an agreement, whereas the manufacturer’s public statements, marketing and advertising messages do not constitute contractual warranties.
(2) In the event that Air Alliance- or manufacturer-issued operating or maintenance instructions are not followed, if changes are made to the object of purchase, if replacement parts or materials not meeting the original specifications are used, claims based on aircraft defects are forfeited unless the Purchaser / Client refutes a substantiated claim to the effect that the relevant defect was brought about by any of the above circumstances.
(3) Defects found only on part of the aircraft do not provide sufficient cause for the entire aircraft’s rejection unless such part is an essential component within the meaning of Sec. 93 of the civil code (BGB).
(4) Minor instances of deviation from contractual specifications that do not materially affect an aircraft’s use cannot render an aircraft non-compliant and must not give rise to objections. Likewise, no liability is accepted for regular wear and tear or consumables.
(5) Air Alliance’s liability for instances of deviation concerning the quality of materials used is limited to the total amount of its own claims against the manufacturer or supplier. Air Alliance will assign its claims against the manufacturer or supplier to the Purchaser / Client and is not itself subject to legal claims unless legal action against the third party in question is unsuccessful.
(6) Defect-based claims against Air Alliance inure to the exclusive benefit of the Purchaser / Client and cannot be transferred.
(7) Air Alliance does not issue any legal warranty to the Purchaser / Client. Manufacturers’ guarantees are not affected. The Purchaser / Client receives a manufacturer’s warranty certificate & maintenance manual outlining the warranty terms upon delivery / handover. The Purchaser / Client is free, under such warranty certificate, to assert claims against the manufacturer directly.
(8) Additional special characteristics of warranties for new aircraft:
a. New aircraft and new parts are supplied free from manufacturing and material defects.
b. Warranties for entrepreneurs / merchants:
In the event of justified complaints / defects, Air Alliance will, at its option and in consideration of the costs it may incur, take corrective action or effect replacement – in each case, to the exclusion of all other claims. For the purpose of both corrective action and replacement, Air Alliance is to be allotted a reasonable period of time.
Remedial action requires that the rejected aircraft be returned to Air Alliance. The Purchaser’s / Client’s failure to return the rejected aircraft results in the loss of all of its warranty claims, irrespective of grounds. If a repair may be performed on site, the Purchaser / Client hereby already undertakes to keep the aircraft available for and accessible to an Air Alliance service technician and facilitate its on-site repair.
Air Alliance will bear any expenditures incurred in connection with inspections and remedial action, including but not limited to transportation, travel, parts and labour, if and to the extent that there is an actual defect. However, if the Purchaser’s / Client’s request for defect removal is revealed to have been unjustified, Air Alliance may demand that it be reimbursed for any related costs.
In the event that remedial action fails, the Purchaser / Client may rescind the agreement, to the exclusion of damages and abatement.
The period in which claims based on defects may be asserted equals one year and commences upon the transfer of risk. Claims automatically expire if no legal action is taken within six months of Air Alliance’s written notice of refusal to take remedial action, provided the Purchaser / Client was advised of this consequence.
Obvious defects must be reported promptly, the latest four weeks after the receipt of the merchandise (aircraft), by sending written notice to Air Alliance. Failure to do so will exclude the assertion of the warranty claim. To be effective, the duly dispatch of such notice is adequate. The Purchaser / Client bears the full burden of proof with respect to all claim requirements, including but not limited to the defect itself, the time of its discovery and the timeliness of the notice of defect. Defects that cannot be discovered during such period despite a diligent inspection must be reported to Air Alliance immediately following detection. Test flights are to be kept within the confines of regular test operations.
c. Warranty for consumers:
In the presence of justified complaints / defects, the Purchaser / Client may choose corrective action or replacement. However, Air Alliance is entitled to refuse the selected remedy if it would entail unreasonable costs and the Purchaser / Client would not suffer considerable disadvantages as a result of the other option. Air Alliance bears the expenditures required for the purpose of inspecting and taking remedial action, including but not limited to transportation, travel, parts and labour.
In the event that remedial action fails, the customer may, at its option, rescind or demand abatement as permitted by law.
The period of limitation equals two years from the transfer of risk.
Within a period of two months from the time the goods’ objectionable condition was discovered, the Purchaser / Client must notify Air Alliance in writing of any obvious defects, such notice having to reach Air Alliance within such period to be considered timely. In the event that the Purchaser / Client fails to provide such notice, the warranty rights expire two months from the time the defect was discovered, except for cases of bad faith on Air Alliance’s part. The Purchaser / Client bears the burden of proof with respect to the time at which the defect was discovered. In the event that the Purchaser / Client was induced to purchase the aircraft by means of misleading manufacturer information, the Purchaser / Client itself bears the burden of proof with respect to its purchase decision.
(9) Special characteristics of warranties for used aircraft:
a. Warranties for entrepreneurs / merchants:
For used aircraft and other used objects of delivery liability for defects is excluded for entrepreneurs / merchants.
b. Warranties for consumers:
Legal provisions apply subject to the clauses contained in item 8, c. For used aircraft, the period of limitation equals one year from the transfer of risk. The burden of proof with respect to the aircraft’s defectiveness lies with the Purchaser / Client.
§ 8 Retention of title
(1) Air Alliance retains the title to the object of purchase / aircraft until the purchase price or, in cases of ongoing business relationships, all outstanding claims have been settled in full.
(2) The Purchaser / Client holds a right of resale only in the regular course of business, and it already assigns to Air Alliance, and Air Alliance hereby accepts, its claims under any resale. In the event of default, at the latest, the Purchaser / Client must identify the debtor of any claim it assigned.
(3) The Purchaser / Client undertakes to notify Air Alliance of any accident in which the transferred object of purchase was damaged. Upon request, it must further advise the liability insurer of the other party to the accident as to the assignment of its claims to Air Alliance, and instruct such insurer to make payments exclusively to Air Alliance. Air Alliance revocably authorises the Purchaser / Client to collect the claims assigned to Air Alliance for its own account and in its own name. Such authorisation may only be revoked if the Purchaser / Client fails to properly meet its payment obligations and is in default.
(4) When processing aircraft / goods that were supplied but remain the property of third parties, Air Alliance is to be regarded as manufacturer within the meaning of Sec. 950 BGB and retains the title to the products through all processing stages. In the event that third parties are involved in processing, Air Alliance merely holds a co-ownership share in the amount of the invoice for any goods subject to retention of title. The property so acquired is deemed subject to retention of title.
(5) In the event that Air Alliance’s (co-)ownership share expires by way of attachment of one or several objects to another, it is already agreed that the (co-)ownership share the Purchaser / Client may hold in the same object / aircraft passes to Air Alliance in proportion to its value (invoiced amount). The Purchaser / Client holds Air Alliance’s (co-)ownership shares at no charge. If third parties seize goods subject to retention of title, including by way of attachment, the Purchasers / Client must note Air Alliance’s title claim and promptly notify Air Alliance to enable it to enforce its property rights (Sec. 771 of the code of civil procedure (ZPO)). Insofar as the third party is unable to reimburse Air Alliance for any related legal or extralegal fees, the liability for such fees lies with the Purchaser / Client.
(6) If the Purchaser / Client commits a breach of contract, including but not limited to the event of default, Air Alliance is entitled to rescind the agreement and demand the return of any goods subject to retention of title. In the event that the Purchaser / Client does not pay the purchase price due, Air Alliance must not assert these rights unless the Purchaser / Client was previously allotted a reasonable grace period for payment, provided applicable law does not dispense with the need for such a period.
(7) In the event that the liquid value of security exceeds Air Alliance’s claims by more than 10%, Air Alliance will release security of its choice at the Purchaser’s / Client’s request.
§ 9 Setoff, right of retention
The Purchaser / Client holds a right of setoff or retention only with respect to undisputed or effectively established claims.
§ 10 Privacy
(1) Air Alliance stores and may process any data and information gathered in anticipation of the transaction as well as those needed for execution.
(2) Air Alliance is entitled, for purposes of the implementation of the contract, to disclose data and documents to third parties subject to applicable privacy law and provided that doing so promotes the order transaction or serves Air Alliance’s justified interests.
§ 11 Air Alliance’s liability
(1) Subject to applicable law, Air Alliance bears unlimited liability for intentional misconduct as well as damages to life, body and health.
(2) For consumers only:
Air Alliance bears unlimited liability for grossly negligent breaches of duty. In cases of ordinary negligence in the discharge of material contractual duties (those that are essential to the proper implementation of the agreement and may regularly and reasonably be presumed to be properly discharged), however, Air Alliance’s liability is limited to foreseeable damages typically associated with the object of purchase.
(3) For entrepreneurs / merchants only:
In cases of gross or ordinary negligence in the discharge of material contractual duties (those that are essential to the proper implementation of the agreement and may regularly and reasonably be presumed to be properly discharged), Air Alliance’s liability is limited to foreseeable damages typically associated with the object of purchase.
(4) The limitations and exclusions of liability set forth in paras. (2) and (3) do not apply to claims arising from bad-faith conduct on the part of Air Alliance or any liability for warranted characteristics, claims under the product liability act and damages related to injuries to life, body or health.
(5) Insofar as Air Alliance’s liability is limited or excluded, the same is true for its employees, staff, representatives and auxiliary persons.
(6) Save for the extent noted above, any liability on the part of Air Alliance is excluded.
§ 12 Dockyard terms for maintenance and repairs
Insofar as the Purchaser / Client (hereinafter referred to as “Client”) has provided the object of purchase or any other aircraft or device to Air Alliance for maintenance or repair purposes, the following terms apply as well:
(1) Quotation / preliminary work
a. If the Client requests a binding quote, a written quotation is required, such quotation to itemise and price all of the materials needed to complete the work. Air Alliance is then bound by this quotation as well as by the price stated therein for a period of four weeks after submission.
b. Unless otherwise agreed, quotations are provided at no charge.
c. Preliminary work, such as the compilation of service lists, budgeting documents, plans, drawings and models requested by the Client, is likewise performed against a fee if so agreed.
d. If, in response to a quotation, an order is placed, the costs of the quotation and any preliminary work are applied to the order invoice.
(2) Warranty
a. The Client’s rights on the basis of defects expire one year from the acceptance of any work or repaired goods (save for planning and monitoring services). Such a short limitation period does not apply in the event of gross negligence on the part of Air Alliance or when bodily injury, damages to an individual’s health or the Client’s demise can be assigned to Air Alliance. Furthermore, Air Alliance’s liability under the product liability act is not affected.
b. Any guarantees within the legal sense on which Air Alliance and the Client might eventually have agreed were put into writing. Changes to guarantees of this kind, including this formal requirement, must be made in writing.
(3) Limitation
Air Alliance’s claims to compensation for work and labour expire after five years.
§ 13 Applicable law, legal venue, contract language, severability
(1) These General Terms & Conditions as well as the entire legal relationship between Air Alliance and the Purchaser / Client are subject to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) In the event that the Purchaser / Client is a merchant or a legal entity / special fund as defined by public law, any dispute arising from or in connection with this agreement is settled exclusively by the district or regional court of Frankfurt am Main, which also serve as an international legal venue, if applicable. However, Air Alliance may, at its option, sue the Purchaser / Client in the latter’s general legal venue.
(3) If and to the extent that contractual documents, appendixes, general terms and conditions or other documents, entirely or any part thereof, have been translated into a foreign language, the German-language version prevails in cases of conflict.
(4) In the event that a provision of these General Terms & Conditions or one pertaining to other contractual arrangements is or becomes ineffective, the remaining provisions hereof as well as any other arrangement will continue in full force and effect.
July 2009
