GTC - General Terms and Conditions
OnTrack Aero GmbH
Schottenfeldgasse 14/Stiege 1/ Top 4
A 1070 Vienna
Tel.: +43 699 18 58 45 40
AT81 2011 1837 8832 7300
The legal relationship between OnTrack and the Customer is in accordance to these General Terms and Conditions, without the explicit acceptance of the Customer being required. Any deviations to these General Terms and Conditions shall be in writing only. OnTrack reserves the right to change and alter these General Terms and Conditions at any time without prior notice. Should the General Terms and Conditions be altered between the placing of the order and its fulfilment the new version shall be the applicable version. The new version shall be applicable under the prerequisite that the Customer has been informed of all changes relevant to the scope of the respective contract. If the Customer objects to any of the changes he is required to report this in writing hence making the altered changes ineffective. Otherwise, the Customer accepts any revised terms and conditions as soon as their access has been assured. The Customer’s own general terms and conditions – if there are any – do not apply to the legal relationship between the Customer and OnTrack, even if this is not explicitly stated. The Customer’s standard terms and conditions shall not become an integral part of the Customer Agreement, even if OnTrack has not expressly rejected their applicability. Further, if OnTrack replies to any communication of the Customer that refers to the Customer’s standard terms and conditions or any other set of terms and conditions (each being “Other Terms and Conditions”), such reply shall not constitute an acceptance of such Other Terms and Conditions, nor shall it result in the acceptance of such Other Terms and Conditions.
Any transportation of components, parts, consumables, and material between OnTrack and the Customer in either direction shall be affected at the Customers own risk and expense.
Application / Extent of Orders
The GTC shall apply to all business relationships of OnTrack with a customer, specifically to Customer’s orders for performance of work on aircraft (e.g. dismounting or mounting of aircraft and/or aircraft components, maintenance, inspection, overhaul, restoration incl. repair and/or exchange of engines and components as well as installation of additional parts, and other work) or any service orders given to OnTrack. If customer has not explicitly accepted the GTC in any other manner, they are deemed to be part of an order, if customer has taken advantage of the works or services performed by OnTrack.
Differing terms of the customer are only binding for OnTrack if OnTrack specifically confirmed these terms in writing.
If a customer’s order contains performance of scheduled and unscheduled maintenance and/or revision work dictated by aviation laws, it also includes the removal of all defects noted by the responsible aircraft inspector and the performance of all necessary inspections. Should OnTrack within the frame of the order find it necessary or efficient to perform additional work it can be performed without obtaining specific approval and charged additionally. The work order contains authorization to perform aircraft taxiing, engine power runs, and other work necessary to check the device in question without specific approval by the customer.
OnTrack is authorized to have a customer’s order performed by another company in or outside the Republic of Austria without having to notify the customer or to obtain his approval if this becomes necessary for reasons of operation acceptance stipulated in aviation laws.
In the case of cancellation of an order by the client the client is liable for all costs incurred. If the order should be cancelled less than 4 calendar days, however more than 2 calendar days before the planned execution, it is agreed that an additional amount of 10 % of the contract value shall be added to the actual costs incurred unless differently agreed upon beforehand. This percentage increases to 25 % of the contract value for cancellations up to 1 calendar day before scheduled service and 40 % for cancellations up to 12 hours before scheduled service. If the Customer cancels the order less than 12 hours before the planed execution of the service, the full contract value is to be paid.
Any cost estimate submitted by OnTrack shall be non-binding. Orders submitted by the Customer are binding. The Customer Agreement is concluded once OnTrack has started the Services or has submitted an order confirmation to Customer in writing (letter or e-mail).
The preparation of cost estimates shall be charged in the absence of any written agreement to the contrary. Upon conclusion of an order after preparation of a cost estimate, it may be agreed in writing that the costs for the preparation of the cost estimate will be deducted in whole or in part.
If the need for additional work proves to be necessary during any Services, Maintenance or Repairs, the cost estimate can be exceeded by no more than 10 percent without consultation; In addition, the customer is to be requested for written order extension.
Prices / Invoices
In case no fixed price is agreed upon in the context with a customer’s order the base prices stated in the OnTrack actual price lists, valid at the time of the order, are charged. All base prices are understood as being net amounts in Euros, excluding any taxes, duties or charges. In addition, the generally charged prices of OnTrack for labor, goods, and services apply to all other work (especially to all defects) as well as material and spare parts.
The prices can be increased in accordance with an increase of material costs or other factors relevant for the calculation of the prices (e.g., increase due to exchange rates), provided that OnTrack can provide evidence of such an increase.
If a fixed price was agreed upon when placing the order, it is sufficient to charge this price. Otherwise, prices for spare parts used, material, check flights and special services as well as the prices for man hours and the applicable value added tax are stated separately. OnTrack is not obligated to make further specifications other than the ones shown in the invoice and the work report.
For exchange parts, the lower price for the exchange unit only applies to the customer if the exchanged part or device is complete and does not show any irreparable damages or damages related with irrelatively high removal costs. Otherwise, the customer is liable to pay the price applicable for a new unit or part.
OnTrack is entitled at any time to demand appropriate prepayment from the customer. Payments on cost estimates may not be refused by customer with reference to the fact that a detailed invoice is not available. Further the customer agrees that invoices may deviate from cost estimates. In addition to a cost estimate OnTrack will issue a detailed invoice as soon as possible and will submit to customer a debit or credit note as appropriate. Customer will pay such debit notes, if any, within seven (7) days from the issue date of the invoice.
The customer agrees to receiving invoices also in electronic form as an attachment to an email.
The services offered by OnTrack are charged in accordance with the prices stated in the latest OnTrack actual price list, individual offer, or contract. The rates and charges are subject to revision by OnTrack. Whenever OnTrack uses third party service providers in accordance with the official price list (e.g. arranging rent a cars) the fees (10%) charged by OnTrack cover only the coordination of the service and not the service itself. The actual service which has been coordinated by OnTrack on behalf of the Customer – will be invoiced and shall be paid in addition to the fees, which are 10%, as per above. Payments for services expedited by OnTrack for the Customer are immediately due upon receipt of the invoice and shall be settled at the latest within 7 calendar days from the invoice date – unless agreed otherwise in writing – without any deductions of any kind. For the avoidance of doubt, no bank fees shall be borne by OnTrack. Provided that if the Customer disputes any portion of the respective invoice, the Customer shall pay the invoice in full and the Customer and OnTrack shall then negotiate in good faith to resolve such dispute within 30 days. If such dispute is resolved in favor of the Customer, OnTrack shall promptly pay the amount determined by such good faith negotiation to the Customer or accept a credit note directly against the invoice to the benefit of the Customer. Any payment is to be credited against the oldest debts irrespective of any dedication mentioned in the transfer. The debtor is the person or entity who orders any of the services offered by OnTrack unless it is obvious that this person or entity is acting on behalf of a third party. If it is not obvious and if it is not proven by the circumstances that the person or entity ordering services is acting on behalf of a third party and (legally) entitled to do so, then this person or entity shall be considered debtor. In any case it is agreed that the person or entity ordering a service will be considered co-debtor. Any payment will be counted towards the oldest outstanding amount. Delays in payment will be penalized with 17 % interest per annum. Should the secondary market net yield for loans in further sense (table 5.4. of the Austrian National Bank based on September 1st, 2005) be raised an additional 3% of the previously mentioned interest rate of 3% per annum, the interest rate will be altered accordingly without further notification. All costs and expenses in connection with debt collection, including but not limited to, costs for debt collecting agencies, lawyers and legal proceedings are to be solely paid by the debtor and will be become part of the debt. OnTrack reserves the right to refuse to render any services – even if a service has been confirmed by OnTrack- as long as a customer’s account is delinquent. In such a case, the Customer does not have the right to make any claims or objections due to non-fulfilment of any existing contract and Customer undertakes to indemnify and compensate OnTrack for all damages – including lost revenue – caused by the late payment and subsequent stop of service(s). If the Customer fails to make payment OnTrack has the right to claim prepayment for any future services to be performed if the Customer has not paid invoices due and may refuse such performance until the prepayments due are received.
Title to all Material supplied by OnTrack under the Customer Agreement shall remain with OnTrack until complete payment of all amounts due under the Customer Agreement.
The signature of OnTrack’s engineers in the technical log of customer’s aircraft only certifies the correct performance of work as defined in the respective customer’s order. OnTrack shall not be held responsible or liable for the airworthiness of the customer’s aircraft, except as explicitly set forth in customer’s order or agreed otherwise in writing.
If OnTrack does not have access to technical documentation by itself, it is the customer’s responsibility to ensure that the latest and valid revision of technical documentation is available for OnTrack to fulfill its services as agreed upon.
The adherence to binding dates of completion requires the fulfillment of all contractual obligations by the customer, especially handing over the subject order including keys, operation certificates etc. and clearing up technical questions as well as receipt of agreed prepayments, otherwise an applicable delay applies.
If a binding date of completion cannot be kept due to force majeure or other unexpected obstacles such as, but not limited to, major defects on airframe, systems, engines or aircraft components, which need to be rectified, missing spare parts, customer withholding or delaying its consent, where it is required due to the customer’s order, operational disturbances, strike or lock-outs, additional tasks at customer’s request that were not part of the initial customer’s order, it is agreed that OnTrack shall not be held responsible if such time limits are not met. Any additional costs in particular but not limited to aircraft storage, parking or towing, caused by the delay shall be borne by the customer.
In case of an exceptionally violation of the binding date of completion the customer has the right to set an appropriate extension for OnTrack and to terminate the contract in writing after the unsuccessful expiration of the extension. The customer is only allowed to assert further claims, especially concerning compensation due to non-compliance or delay, in case of willful misconduct or gross negligent acts by OnTrack or its agents.
The services offered by OnTrack are any of the services within the possible and approved scope of work, offered to a customer at any one time. Any order for services shall be placed as soon as possible, but in any case, giving enough lead time to prepare and execute the order. For certain services, national laws and regulations apply and the lead-time required by the respective authorities and/or entities for the specific territories must be taken into consideration and applies. OnTrack takes no responsibility and cannot be held responsible or liable for any or all services, which cannot be fulfilled due to the late placement of the order by the Customer. In no case OnTrack is responsible for consequential damages irrespective of its nature or cause.
Data required to successfully execute services may be stored in OnTrack databases; this includes personal data on Customers or passengers. The Customer agrees to this procedure.
OnTrack reserves the right to postpone, cancel or redirect a work at all times due to war or warlike events that may lead to war, or any fact – including but not limited to meteorological conditions or technical status of the aircraft – which might or in OnTrack‘s view could potentially endanger the safe execution of the work concerned without accepting any liability for financial or other disadvantages or losses even when the postponement, cancellation or redirection is decided upon on short notice. The decisions whether a work can be carried out, or not incumbents solely with OnTrack.
In the case that a flight cannot be carried out or the start of a flight is delayed due to technical or other safety related reasons OnTrack will accept no liability for any disadvantages or losses to the Customer that occurs due to cancellation or delay.
By delivering the subject order to the customer or its agent, acceptance of performance is considered. Delivery will be performed at the facilities of OnTrack. There is no obligation to check the collector’s flight license.
Should the customer choose delivery of the subject order at another place it will be affected on his account and risk.
The customer is in delay of acceptance if he does not take delivery of the subject order against payment of the invoice within 3 days after he was notified of completion and it was pointed out that he will be charged for this delay after expiration of the 3-day time frame. If delivery of the subject order is not taken within the period OnTrack will charge customer any additional costs in particular but not limited to aircraft storage, parking or towing, caused by the delay of the Customer.
If the customer is in delay for acceptance OnTrack is only liable for destruction or damages caused by willful misconduct or gross negligent acts by OnTrack or its agents and may hangar or park the order subject elsewhere at its discretion in accordance with applicable law. Furthermore, OnTrack is responsible for the aircraft only until the A/C has been released by technician with a CRS in the logbook.
Customer is responsible for the proper conduct of all custom matters. OnTrack is entitled to withhold the Aircraft if the proper conduct of these matters is not proved.
OnTrack shall not be held responsible for late delivery of the aircraft and/or the failure to perform the agreed maintenance in the following circumstances: late delivery of spare parts or other material from suppliers and subcontractors, the Customers refusal to accept parts and materials supplied by OnTrack for any reason, delays caused by Force Majeure, including but not limited to acts of God or terrorism, war, civil war, war like operations, insurrections or riots, fires, floods, explosions, earthquakes or serious accidents, epidemics or quarantine, any act of Government, regulations or orders affecting material, facilities or completed work, or any other circumstances beyond OnTrack reasonable control; Nothing contained in this Contract shall require OnTrack to take any action contrary to the law or to any order or regulation of any government or contrary to any permit or authorization granted to OnTrack by any government. If a delay is unavoidable OnTrack shall do their best to satisfy the Customer.
The warranty includes the correctness of installed spare parts, additional and exchange parts in accordance with the applicable state of engineering as well as the correct performance of maintenance, repair and exchange work. However, material provided by customer must always have been stored, handled and operated in accordance with manufacturer’s recommendations.
In case of obvious defects, the customer is entitled to warranty claims only if he reserves this right in writing when taking redelivery of the aircraft or if in other cases, he gives notice of those in writing to OnTrack within one week after having taken redelivery. Timely mailing is sufficient for reporting. If the customer is a businessman for whom the order is part of operation of his business, he must inspect the subject order immediately after having taken delivery and report any defects in writing within one week. Otherwise, the customer is not entitled to any rights against OnTrack. A warranty claim raised by the customer shall state in detail the defect, and OnTrack must be provided with the defective part for inspection and repair within additional thirty (30) days after the warranty claim has been raised.
The cause of the defect must be related to services rendered by OnTrack. OnTrack does not warrant supplier material or services. For such material or services any assignable rights to warranty granted to OnTrack by its suppliers will be assigned to customer by express demand. OnTrack will support customer in pursuing such warranty claim.
If the customer is entitled to warranty claims because of defects at the time of delivery OnTrack has the free choice to either remedy the defect, deliver an exchange part, or to lower the invoiced amount by the value of the labor and spare parts in question. If OnTrack is not successful with its first remedying the defect is entitled to another try. If the customer does not grant necessary time and opportunity to perform this remedying OnTrack is released from all liabilities. In case OnTrack is unable to remedying the defect, the customer is entitled to the legal warranty rights of reduction or cancellation of contract.
The customer is obligated to report all shown damages, within the warranty period, in writing and immediately. If warranty adjustment is affected by remedying the defect or exchange delivery, OnTrack must cover necessary transportation and delivery charges only up to an extend which is in an adequate proportion to the amount of the warranty claimed, in no case however higher than the total amount of the order.
Warranty entitlements expire in case the customer himself and/ or a third party performs work to remedy the defect without obtaining prior approval by OnTrack, except those measures are necessary in case of emergency or for the transfer of the aircraft to OnTrack’s facilities.
All warranty entitlements are excluded if the defect was caused due to negligence or violation of operation instructions, maintenance instructions, or other service instructions.
Warranty entitlements for used parts as well as for improvised repair, which were installed or performed on the customer’s request, are excluded in all cases.
Any and all claims or objections have to be made in writing within 7 calendar days after occurrence or receipt of invoice, whatever occurs first. Claims or objections made at a later point in time will not be considered by OnTrack without any further comment or liability to OnTrack and without relieving the Customer from its obligation to pay the full amount invoiced – plus any late fees and interest if applicable. If no claim or objection is received within the period, the Customer expressively and explicitly agrees that the invoice is accepted and legally binding and enforceable or waives any right which might be based or in connection with the occurrence.
OnTrack warrants that all work is performed in accordance with established EASA respectively FAA standards. This warranty obligates OnTrack to remedy a defect, according to OnTrack General Terms and Conditions. The warranty is excluded: if material causing the defect was not supplied or if work causing the defect was not performed by OnTrack and/or its subcontractors or if the parts were supplied by the Customer, if a provisional repair was performed at the Customers special request, if the defective unit has, in the meantime, been repaired, overhauled or modified outside OnTrack and/or its subcontractors, if the underlying defect has not been communicated by the Customer to OnTrack, within 7 days after the discovery of the defect, once OnTrack has been notified of the defect, OnTrack may request a detailed written report specifying the occurrence, extent and possible causes of the defect. Should OnTrack receive such a written report not within four weeks after the request has been received by the Customer, all warranty claims related to the defect will be excluded, warranty claims against OnTrack shall be excluded in respect of defects of parts or materials which are not stored, handled or operated by the Customer in accordance with the manufacturer’s recommendations.
Liability and Compensation
Unless otherwise stipulated in this Agreement, OnTrack will not be liable for any damages, which occur or will be caused by any circumstances beyond OnTrack’s control. The liability of OnTrack or its agents is limited to intentional or gross negligent damages and up to the total value of the respective customer’s order (i.e. agreed service fee of the respective months wherein the damage occurred or purchase price of the damaged parts on the day the damage was caused). These GTC apply equivalently in case of destruction, damage or loss of subject order or parts, specifically concerning the customer’s aircraft, engines or other components hereof.
The customer covers the risk during check flights unless OnTrack’s pilot acts intentionally or with gross negligence. The same GTC apply for ferry flights which are performed on the customer’s request.
OnTrack will not be liable for any damages with regard to or in the context with customer’s aircraft, if it is locked and parked on the ramp. OnTrack is only responsible for any additional equipment or objects in the aircraft if those were specifically handed over.
Under no circumstances OnTrack will be liable for any indirect, incidental or consequential damages such as but not limited to loss of profit or loss of revenue, except for the extent of willful misconduct.
OnTrack, its personnel, and its subcontractors shall not be liable for damage or loss to the Customer, except in cases of willful misconduct or gross negligence of OnTrack, its personnel and its subcontractors. This release by the Customer includes any damage or loss of property including any aircraft as well as bodily injury or death or other damages sustained by the Customer. This provision shall apply for any such liabilities arising in any way during or after the performance of work by OnTrack, its personnel or its subcontractors. Regardless of the above, OnTrack, its personnel or its subcontractors shall not be responsible for any consequential damages, including, but not limited to loss of use, revenue or profit. The Customer shall indemnify and hold blameless OnTrack, its personnel, and its subcontractors from any and all liabilities towards any third party arising in any way during or after the performance of work by OnTrack, its personnel and its subcontractors. This provision shall not apply in cases of proven willful misconduct or gross negligence of OnTrack, its personnel and its subcontractors. This indemnification includes cost and expenses incident thereto as well as consequential damages.
OnTrack is not obligated to insure or keep insured the subject order, specifically the customer’s aircraft, engines or other components hereof. The customer is responsible for an appropriate insurance coverage of the subject order also for and during the time services are and will be rendered by OnTrack in accordance with customer’s orders.
Except as otherwise agreed payment for man hours, material, and spare parts used for the customer’s order need to be paid in advance. All payments shall be made in Euro and without any deductions.
Checks, letters of credit and money orders will only be accepted as cash substitute by OnTrack. In these cases, payment is not affected until OnTrack is definitely credited with the amount of the payment. All charges in connection with non-cash payments have to be borne by the customer, specifically any fees charged by a bank in connection with the transfer of funds from customer to OnTrack
A charge with counterclaim from the customer is excluded, unless this counterclaim is undisputed or legally binding. The customer has a Right of Retention only if it is based upon the same order. He is not entitled to withhold payments for whatever reason (e.g. lack of performance, warranties).
Any dispute of customer with regard to a payment obligation will not affect customer’s obligation to pay the invoice in full.
Any dispute to OnTrack’s invoices must be made within fourteen (14) days from the issuance date of the invoice. Claims received thereafter shall not be taken into consideration by OnTrack.
If customer fails to pay in full on the due date any amount which is payable to OnTrack pursuant to a customer’s order then the amount outstanding shall bear interest, both before and after judgment, at a rate of 1% per month from the due date until payment is made in full. OnTrack is entitled to issue an administration fee in the amount of € 30,- for each written reminder.
Right of Retention and Lien
In case of customer’s default in payment, OnTrack has the right of retention on all objects delivered to it by customer, whether the customer owned the object or not. This Right of Retention is also applicable to claims of previous maintenance services performed, spare part deliveries, or other claims originating out of this business connection.
OnTrack has a lien over customer’s aircraft, engines, components (including but not limited to, auxiliary power units, landing gears, any aircraft documentation) in its custody as well as the right to repossess any property of OnTrack in customer’s possession. These rights as well as a set-off right may also be claimed for services rendered or materials supplied previously. Furthermore, OnTrack has the right to immediately stop current services until payments due have been remitted.
Any additional costs in particular but not limited to aircraft storage, parking or towing, caused by the delay shall be borne by the customer. OnTrack disclaims any responsibility for the storage/parking of the Aircraft in connection with its right of retention.
Reservation of Title and Exchanged Parts
OnTrack keeps title to all material supplied to customer until payment of all amounts due originating from the business connection with customer are paid in full. If the property of OnTrack disappears due to connection or mixing or processing it becomes co-proprietor of the part with which the part delivered by OnTrack was connected, mixed or processed in proportion to its value.
If nothing else was demanded by the customer in writing when placing the order, exchanged parts become the property of OnTrack without owing a substitute.
Place of performance for all claims originating from customer’s order as well as further claims in connection with this business relation for all OnTrack locations, inside and outside of Austria, is Vienna/Austria.
In relation to authorities and other government agencies OnTrack is rendering its services for and on behalf of customer and customer will remain legally responsible towards such government agencies and the authority of the country of aircraft registry, except as otherwise agreed upon in writing.
For customers who are businessmen the only place of jurisdiction is Vienna. Furthermore, Vienna is place of jurisdiction if
the customer does not have a place of general jurisdiction within the country or
the customer after conclusion of an agreement with OnTrack moves his seat or regular place of residence outside of the Austrian area of jurisdiction and his whereabouts or regular place of residence are unknown at the institution of proceedings.
OnTrack has the choice to take the customer to court at his court of general jurisdiction.
These stipulations are also valid for all further business relations with the customer and form an integral part of any agreement with OnTrack even if they are not specifically agreed upon a second time. Only Austrian law is applicable to all relations of the Parties, however without its rules on the conflict of laws (“Internationales Privatrecht”) and without application of the Convention on the International Sales of Goods (“UN-Kaufrecht-Übereinkommen”).
Customer’s claims concerning the order in question or in this connection are non-transferable.
Should for any reason one or more stipulations be or become invalid, this does not affect the validity of the remaining stipulations. Both Parties need to exchange the invalid provision by another legal provision, which is closest to the economical purpose of the invalid provision.
The headings simply serve for convenience and do not have any material meaning.