The Customer’s attention is drawn in particular to the provisions of clause 7.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause 1 apply:
Aircraft the aircraft identified in the Contract.
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Consumer an individual acting in a personal capacity and not for purposes related wholly or mainly to their trade, business, craft or profession.
Contract the contract between the Supplier and the Customer for the supply of Services as formed in accordance with and including these Conditions.
Covid-19 Event any event or circumstance which is related to the ongoing Coronavirus (Covid-19) outbreak affecting the United Kingdom on the commencement date of this agreement, and affects the Supplier’s performance of its obligations under this Contract.
Customer the person or firm who purchases the Services from the Supplier as identified in the Contract.
Force Majeure Event an event, circumstance or cause beyond a party’s reasonable control, including without limitation, acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic (excluding a Covid-19 Event); collapse of buildings, fire, explosion or accident; and interruption or failure of communication or utility service (including that concerning any telecoms or internet connectivity).
Initial Proposal has the meaning given to it in clause 2.2.2.
Invoice Supplier’s invoice for the Services.
Services the work that it is agreed shall be carried out by the Supplier relating to the pre-purchase inspection of the Aircraft, including reporting to the Customer on the outcome of the inspection, as determined in accordance with clauses 2.2.
Supplier RGV Aviation Limited (registered in England and Wales with company number 02084097) whose registered office is at Hangar SE40, Gloucestershire Airport, Staverton, Cheltenham, Gloucestershire, GL51 6SP.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its personal representatives, successors and permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 A reference to writing or written includes fax and email.
1.7 Any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended or re-enacted on or after IP completion day as defined in section 39 of the European Union (Withdrawal Agreement) Act 2020.
1.8 If there is any conflict or ambiguity between the terms of these Conditions and the Returned Proposal, the provisions of the Conditions shall prevail.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or (subject to clause 7.2 and except where the Customer is acting as a Consumer) which are implied by law, trade custom, practice or course of dealing (including, without limitation, any terms set out in, referred to or attached to the Customer’s purchase order form). Except where the Customer is acting as a Consumer, the Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.2 Prior to the Supplier commencing the inspection of the Aircraft:
2.2.1 the Customer shall provide the Supplier with all relevant documentation and information that is in its possession or knowledge relating to the history, previous maintenance and/or state of the Aircraft;
2.2.2 the Supplier shall provide a list of options relating to the inspection (the Initial Proposal) to the Customer, setting out the inspection items and the relevant level of inspection that the Supplier reasonably believes will be necessary, based on the age of the Aircraft and its service history, together with an estimate of labour costs based on the Supplier’s hourly labour rates and the anticipated time to perform the Services;
2.2.3 the Initial Proposal will be considered valid as a basis for discussion for forty (40) Business Days starting on the date that the Initial Proposal is issued to the Customer;
2.2.4 if required, the Customer and the Supplier shall discuss the contents of the Initial Proposal;
2.2.5 if the Customer wishes to proceed, the Customer shall sign and return a copy of the Initial Proposal to the Supplier that has (where relevant) been marked to indicate where any inspection items are not to be carried out (the Returned Proposal) and this shall be deemed an offer of work to the Supplier and a proposed scope for the Services, based on the estimated labour costs set out in the Initial Proposal to the extent that they apply to the Returned Proposal;
2.2.6 following receipt and consideration of the Returned Proposal, and where the Supplier wishes to accept the offer of work and scope of Services set out in the Returned Proposal, the Supplier shall confirm in writing its acceptance of the Returned Proposal (and at this point the Contract shall be formed on the basis of these Conditions); and
2.2.7 where the Supplier does not wish to accept the offer of work and scope of Services set out in the Returned Proposal, the Supplier shall communicate its reasons to the Customer and may, at its option, provide another Initial Proposal for consideration in accordance with this clause 2.2.
2.3 A Contract shall not come into existence until the Supplier accepts a Returned Proposal pursuant to clause 2.2.6. For the avoidance of doubt, each time a Returned Proposal is accepted a separate and distinct agreement is formed in relation to the services that are the subject of such proposal.
2.4 The Customer may not vary or cancel any Contract unless the Supplier agrees in writing, except where the Customer is acting as a Consumer at a distance and wishes to cancel the Contract in which case clause 2.5 applies.
2.5 Where the Customer is acting as a Consumer, the following applies:
2.5.1 If the Customer enters into these Conditions at a distance (i.e. online or over the phone and without any face to face contact between the parties), the Customer may cancel such an agreement for any reason within fourteen (14) days of entering into the agreement (the Cancellation Period). To do so, the Customer must clearly inform the Supplier by emailing email@example.com. The Customer may, but does not have to, use the Cancellation Form at the end of these Conditions. The Customer will lose the right to cancel after the expiry of this Cancellation Period.
2.5.2 The Customer can ask the Supplier to start providing the Services before the end of the Cancellation Period by providing the Supplier with a written request, confirming that the Customer wishes the Services to start before the end of the 14 day period and expressly acknowledging that they understand that in so doing, they will lose their right to cancel. If the Customer does this, then Conditions 2.5.3 – 2.5.5 will apply in relation to the refund to be paid to the Customer.
2.5.3 If the Supplier has not started to provide the Services at the Customer’s request before the end of the Cancellation Period, the Customer will receive a full refund of the monies the Customer has paid for the Services.
2.5.4 If the Supplier has started providing the Services to the Customer at their request before the end of the Cancellation Period, the Customer will be required to pay the Supplier’s fees for the Services carried out prior to the Customer contacting the Supplier.
2.5.5 The Customer will only receive a refund for that part of the Services not provided. The Customer will not have the right to cancel the agreement once the Supplier has completed those Services.
2.5.6 Any refund will be paid within fourteen (14) days after the day on which the Customer informs the Supplier of their decision to cancel the agreement and will be made using the same means of payment as the Customer used to pay for the Services, unless the parties agree otherwise.
3. PROVISION OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Contract.
3.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.3 Except where the Customer is acting as a Consumer, the Customer expressly acknowledges and agrees that, save as set out above, no warranty is given or implied as to the quality of Services or their fitness for any particular purpose whether known to the Supplier or not.
3.4 Where appropriate the Supplier may carry out flight testing of the Aircraft as part of the Services and may continue to carry out flight tests of the Aircraft until satisfied that the inspection of the relevant items is completed satisfactorily, and the Supplier and its employees and agents are expressly authorized to carry out flight testing of the Aircraft for all purposes in connection with the provision of the Services. The Customer shall pay the cost of flight-testing of the Aircraft
including any fees, taxes and expenses, and undertakes to provide legally required insurance of the Aircraft to cover any and all risks to the Supplier in connection with any claim arising from any flight-testing of the Aircraft. The Customer shall bear the full cost of the Invoice regardless of the outcome or results of any such flight-testing. The Customer shall be liable for all loss, damages, costs and expenses reasonably incurred by the Supplier in connection with any claim arising from any flight-testing of the Aircraft. The Supplier undertakes to take reasonable care of the Aircraft.
4.1 The parties shall agree in advance the estimated date on which the Services will be performed (the Services Delivery Estimated Date), and the Customer shall use all reasonable endeavours to procure that the Aircraft is delivered in accordance with clause 4.2 on or before such estimated date (the Aircraft Delivery Date). The Customer shall inform the Supplier if the Aircraft Delivery Date cannot be met and acknowledges that in such circumstances the, subject to Supplier’s availability, the parties may need to agree a revised Services Delivery Estimated Date. The Supplier’s estimated performance date for the Services are estimates only and time shall not be of the essence for the performance of the Services. The Supplier will use its reasonable endeavours to carry out the Services by the estimated performance date or if none is stated, within a reasonable time. The Supplier will notify the Customer where it becomes aware of a delay to the estimated performance date. The Supplier shall have no liability if the Services are not carried out on the estimated performance dates and/or if the Aircraft Delivery Date is not met.
4.2 The Customer shall procure that the delivery of the Aircraft shall take place at the Supplier’s premises at Gloucestershire Airport, Cheltenham GL51 6SP. The performance of the Services shall take place at these premises.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services;
5.1.2 ensure that any information it provides to the Supplier is complete and accurate;
5.1.3 co-operate with the Supplier in all matters relating to the Services; and
5.1.4 arrange for the Aircraft to be collected from the Supplier’s premises within ten (10) Business Days of having been notified that the Services have been completed and provide at least 24 hours advance notice of the intended collection date and time (or such other notice period as is agreed between the parties).
5.2 The Supplier reserves the right to make a reasonable daily charge for the storage of the Aircraft if, following the expiry of the period referred to in clause 5.1.4, the Aircraft is left at the Supplier’s premises.
5.3 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.3.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.3.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.3; and
5.3.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.4 If the Customer becomes aware of any changes to the documentation or information provided by the Customer pursuant to clause 2.2.1, or any information contained in any other representations made by the Customer to the Supplier in relation to the Aircraft, then it shall immediately notify the Supplier of those changes.
6. PRICE AND PAYMENT
6.1 The actual price of the Services shall be the price set out in the final Invoice.
6.2 The charges for Services shall be calculated in accordance with the Supplier’s hourly labour costs, as set out in the Invoice.
6.3 The invoice shall be issued by the Supplier on completion of the Services.
6.4 The cost of work is agreed on an estimated basis. Supplier reserves the right to charge more where the work involved takes longer than initially anticipated. Where the Customer is acting as a Consumer, the Supplier shall not exceed the estimate by more than 10% of the price without the Customer’s prior written approval.
6.5 All amounts payable by the Customer under the Contract exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice.
6.6 The Customer shall pay each invoice submitted by the Supplier:
6.6.1 within seven (7) Business Days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
6.6.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
6.6.3 time for payment shall be of the essence of the Contract.
6.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 8 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1 During the term of the Contract, the Supplier shall maintain in force to an appropriate level and with a reputable insurance company professional indemnity insurance, public liability insurance and hanger keeper’s insurance to cover the liabilities that may arise under or in connection with the Contract.
7.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
7.2.1 death or personal injury caused by negligence;
7.2.2 fraud or fraudulent misrepresentation; or
7.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession), or where the Customer is acting as a Consumer, the terms implied by sections 49 – 52 of the Consumer Rights Act 2015; and
7.2.4 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
7.3 Subject to clause 7.2, the Supplier shall have no liability for the following types of loss (which are wholly excluded from the Supplier’s liability):
7.3.1 loss of profits;
7.3.2 loss of sales or business;
7.3.3 loss of agreements or contracts;
7.3.4 loss of anticipated savings;
7.3.5 loss of use or corruption of software, data or information;
7.3.6 loss of or damage to goodwill; and
7.3.7 indirect or consequential loss.
7.4 Subject to clause 7.2, the Supplier shall not be liable for any delay in delivery of the Services that is caused by a Force Majeure Event or a Covid-19 Event.
7.5 The Customer acknowledges and agrees that the Supplier is entitled to rely on the documentation and information provided by the Customer pursuant to clauses 2.2.1 and 5.4, and any other information provided to the Supplier in relation to the Aircraft, to inform:
(a) the production of the proposals concerning the extent of the services necessary;
(b) decisions as to the extent of work required;
(c) it conclusions / advice concerning the state of the Aircraft; and/or
(d) any other decisions or conclusions pertaining to the Aircraft.
Accordingly, and subject to clause 7.2, the Customer agrees that the Supplier shall have no liability for any loss that arises as a consequence of the Supplier’s reliance on such documentation and information (and such loss is wholly excluded from the Supplier’s liability).
7.6 Subject to clause 7.2, the Supplier’s total liability to the Customer shall not exceed the value of the applicable Contract.
7.7 Where the Customer is acting as a Consumer, if the Supplier fails to comply with its obligations under these Conditions, the Supplier is responsible for any loss or damage the Customer incurs that is a foreseeable result of that failure or the failing to use reasonable care and skill in providing the Services. The Supplier will not be responsible for any loss or damage which is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen, or if at the time the Customer engaged the Supplier to provide the Services, both parties knew it might happen
7.8 If the Customer is acting as a Consumer, they may have certain legal rights regarding claims in respect of losses caused by the Supplier’s negligence or failure to carry out its obligations. Nothing in these Conditions is intended to limit the Customer’s legal rights as a consumer. For further information about a consumer’s legal rights, please contact the local authority Trading Standards Department or Citizens Advice Bureau.
7.9 The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.10 Any claim by the Customer shall be notified to the Supplier within twenty (20) Business Days from the completion of the Services, or where the defect or failure was not apparent on reasonable inspection, be notified to the Supplier within a reasonable time after the discovery of the defect or failure.
7.11 If the Supplier agrees to a request by the Customer to cancel the Contract, the Customer shall indemnify the Supplier in full against all loss (including loss of profit), reasonable costs, damages and expenses incurred by the Supplier as a result of the cancellation.
7.12 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
8.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
8.1.2 any step or action is taken, any notice, document, petition or application is filed at court, or any resolution is passed, in connection with the Customer entering administration, a moratorium, provisional liquidation, a company voluntary arrangement, an arrangement under Part 26A of the Companies Act 2006 or any other composition or arrangement with its creditors (other than in relation to a solvent restructuring), bankruptcy, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring) or having a receiver appointed over any of its assets;
8.1.3 an event similar or analogous to those listed in clause 8.1.2 above occurs in relation to the Customer under the law of any jurisdiction of a party;
8.1.4 the Customer suspends, or threatens to suspend, or ceases, or threatens to cease, to carry on all or a substantial part of its business;
8.1.5 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
8.1.6 the Customer fails to pay any amount due under the Contract on the due date for payment.
8.2 Except where the Customer is acting as a Consumer, without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or terminate this Contract for convenience at any time prior to the Services being provided by notice in writing to the Customer.
8.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clauses 8.1.2 to 8.1.5, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied
but for which no invoice has been submitted, the Supplier shall submit an invoice which shall be payable by the Customer immediately on receipt.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
9. FORCE MAJEURE AND COVID-19
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event or a Covid-19 Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for twenty (20) Business Days, either party may terminate this agreement by giving not less than five
(5) Business Days written notice to the other party.
10. DATA PROTECTION
11.1 Assignment and other dealings.
11.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Entire agreement.
11.2.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause
11.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.6.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business or such other address as may have been notified for these purposes.; or
(b) sent by email to such email address as may have been notified for these purposes.
11.6.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at
9.00 a.m. on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00 a.m. to 5.00 p.m. Monday to Friday on a day that is not a public holiday in the place of receipt.
11.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.7 Third party rights.
11.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.