Unless the context otherwise requires, the following terms shall have the meanings respectively ascribed to them. “the Agreement” shall mean the agreement governing Avion’s provision of the Services and/or supply, sale and/or fitting of the Parts to/for the Customer, being these terms and conditions unless the parties have agreed in writing to supplement such terms and conditions by others.
“Authorised Officer” shall mean any director, secretary or position within Avion whose title includes the word “general manager” or “vice-president” or any person approved of by the board of directors of Avion to act as an authorised officer and identified as such to the customer;
"the Equipment" shall mean any aircraft, part or component thereof, furnished by or on behalf of the Customer and upon which or in relation to which services are or are not to be performed by Avion.
“the Customer” shall mean the customer named overleaf or referred to in other relevant documents and shall, unless the context otherwise requires, include its employees and agents.
“Avion” shall mean as applicable, Avion Logistics Limited, Hawker Pacific Asia Pte Limited, Hawker Pacific Airservices Limited or a related body corporate (defined in this Agreement as a subsidiary or a holding company of Avion Logistics Limited, Hawker Pacific Asia Pte Limited or Hawker Pacific Airservices Limited, or being a subsidiary or a holding company of Avion Logistics Limited, Hawker Pacific Asia Pte Limited or Hawker Pacific Airservices Limited) and shall unless the context otherwise requires, include its employees, agents, independent contractors and sub-contractors.
“the Services” shall mean work performed by Avion on, or in relation to, the Equipment and shall include, but not be limited to the work authorised and such other unforeseen and additional work as Avion may in its discretion consider necessary to render the equipment airworthy and / or serviceable, and all transport, freight, storage, hangarage, inspections, modifications and testing ancillary thereto.
"the Parts" shall mean all parts and / or components whether new or overhauled supplied by Avion and fitted to the Equipment in performing the Services or the subject of any contract of sale by Avion.
In these terms and conditions unless the context otherwise requires: (i) words importing the singular include the plural and vice versa; (ii) words importing gender include all other genders; (iii) words importing persons include all bodies and associates, corporate or unincorporated, and vice versa; (iv) references to any party include that party’s executors, administrators, substitutes, successors and permitted assigns; and (v) references to days are to calendar days.
Avion is hereby authorised and instructed to perform the Services and/or to supply and fit the Parts or to sell the Parts and the Customer hereby agrees to pay, without deduction, Avion's charges at that time and in that manner as Avion may require. The Customer must notify Avion in writing immediately of any error on an invoice. Where credit arrangements have been agreed by Avion in writing, payment shall be made by the Customer within 30 days of the date of Avion's invoice unless otherwise agreed in writing by Avion. The Customer agrees that, and notwithstanding any provision in any subject agreement/s providing to the contrary, in the event that he shall fail to make payment as aforesaid or where payment is overdue, Avion shall be entitled to
a) charge a late payment fee on any overdue amount from the date when due until the date payment is received, at a rate of 1.33% per month;
b) stop supply immediately both under the Agreement and/or any other agreement with the Customer:
(i) without being in breach of any such agreement/s and where applicable, the Customer releases Avion from any obligation to pay liquidated damages and/or milestone penalties that would otherwise apply;
(ii) without prejudice to any accrued rights and remedies of Avion under any of the agreement/s; and
(iii) payment will become immediately due to Avion for all good and services supplied under any agreement with the Customer, with sub-clause (a) to apply if payment is not immediately received.
c) sell or concur in selling all or any interest in the Equipment by public auction, private treaty or tender, for cash or on credit, in one lot or in parts, with or without special conditions as to title or the time and the mode of payment of purchase money, or on such terms as Avion in its absolute discretion thinks fit. All monies received by Avion as a result of the exercise of its rights under this provision may be applied in the following order:
(i) in payment of all costs, charges, expenses and disbursements incurred in or incidental to the exercise or attempted exercise of Avion’s rights under this provision;
(ii) payment of monies owing to Avion, and
(iii) the surplus (if any) shall belong to the Customer but does not carry interest.
For the avoidance of doubt, if any part of the monies due to Avion remains outstanding after applying the proceeds of any sale of the Equipment in accordance with this sub-clause, Avion may take further action against the Customer as Avion deems necessary to procure the payment of such part of monies owing to Avion.
The parties agree that where a written and signed variation of any such agreement so referred here is necessary for that set out in this clause 2 to take effect, then either this clause 2 constitutes such variation or the parties agree to waive such requirement.
The Customer warrants to Avion that, if the Customer is not the owner of the Equipment, he has the approval and consent of the owner as its agent to authorise both the performance of the Services and the supply and fitting of the Parts and compliance with these terms and conditions, and agrees to accept liability for payment of the Services supplied hereunder.
Avion shall use its reasonable commercial endeavours to effect deliveries of Parts and to complete the Services and, notwithstanding any estimate of time, shall not be responsible for delays due to causes beyond its reasonable control, or for any consequential loss or damage to the Customer resulting therefrom. Without prejudice to the generality of the foregoing and for the avoidance of any doubt time shall not be of the essence under the terms of any agreement between Avion and the Customer for the provision of Parts or Services to the Customer unless otherwise specifically agreed in writing by an Authorised Officer of Avion.
a) Where any price of the Parts is based upon trade-in of run-out units, such price is contingent upon run-out units being in normal run-out condition.
b) Title to any run-out units traded-in shall pass to Avion forthwith upon replacement with new or overhauled units
c) Any parts or components replaced by Avion in the course of performing the Services and/or fitting of the Parts will be returned to the Customer only if specifically requested by the Customer in writing within 21 days of the date of first instruction to Avion to provide the Services and/or fitting the Parts. In the event that no such request is made, title to any such parts or components shall pass to Avion upon fitting replacement parts or components to the Equipment.
Avion is hereby authorised for any purpose incidental to the performance of the Services:-
a) to test, taxi or fly the Equipment ; and
b) on such terms as to cost as the Customer and Avion may agree to transport or fly the Equipment to another hangar or facility.
The Customer agrees that, in the event that the Equipment is not collected following notification by Avion to the Customer at the Customer's address, that the Services have been completed, Avion may charge reasonable hangarage or storage charges in respect thereof from the date of such notification until collection. Avion reserves the right to terminate any storage or hangarage arrangement upon the giving of seven (7) days’ notice to the Customer.
Any quotation by Avion shall be in writing and:
a) shall relate only to the work and or the supply of parts and components specifically itemised in the quotation;
b) may be accepted by the Customer within one month from the date of quotation by duly completing and returning the appropriate authorisation to Avion's facility issuing the quotation;
c) in respect of Services, shall be subject to the Customer delivering the Equipment within two months from the date of quotation to Avion's facility issuing the quotation or such other facility as Avion may in writing agree;
d) in respect of Services, shall unless Avion otherwise agrees in writing be subject to Avion completing the work and supplying the parts and components itemised in the quotation within three months from the date of quotation and in the event that the work and or supply of parts and components itemised in the quotation shall take more than three months from the date of the quotation for any reason beyond Avion's reasonable control, Avion shall be entitled to charge the Customer for any increases in Avion's labour rates for work carried out and prices for parts and components supplied after that period;
e) is based upon [i] current rates of pay and conditions of employment at Avion's facilities ; [ii] prevailing prices of raw materials and sub-contracted parts and services ; [iii] suppliers' prevailing prices for Parts not manufactured by Avion and [iv] the present ruling rates of overseas exchange, current freight and insurance charges and the present methods of the Customs Department in calculating and ascertaining the rate of duty and primage or any other government tax on imported goods. In the event of any change to any of these bases for pricing after provision of the quotation by Avion or acceptance by the Customer, Avion reserves the right to adjust the price, acting reasonably, to take into account such change/s and such new pricing to apply immediately following notification in writing by Avion to the Customer; and
f) unless otherwise expressly stated, any goods and services tax (GST) or any other tax or impost which may be levied or in any way arising out of Avion’s provision of the Services and/or supply, sale and/or fitting of the Parts to/for the Customer shall be borne by the Customer, excluding taxes specifically and solely levied on Avion’s earnings and revenue.
Subject to clause 10, the Customer agrees to indemnify, and to keep indemnified, Avion against any action, claim, proceeding, demand, damages, cost, expense liability or loss (including but not limited to costs on a solicitor/client basis and any indirect/consequential and such loss arising in any manner), which Avion may suffer or incur arising out of or connected with the Agreement between the parties, the Services, Equipment and/or Part.
Except for damage to, or loss of, the Equipment occasioned by the wilful misconduct or gross negligence of Avion with reckless disregard of the known consequences, the Equipment shall at all times, while in the care, custody or control of Avion, be at the risk of the Customer.
Ownership of and title in exchange items and/or Parts will not pass to the customer until full payment of all invoices, plus any supplementary charges (i) corresponding to such exchange items and/or Parts, and (ii) any other invoices due and payable by the Customer under any other agreement between the parties, is made; the Customer being liable for loss or damage, in transit, or during period of use. In the event of failure to pay by due date Avion will be entitled to repossess the said parts, the Customer being further liable for any additional costs incurred in removing and recovering the parts.
The Customer shall inspect and examine the Equipment or Parts on delivery and subject to the rights and remedies herein no claim shall be recognised unless received by Avion in writing, within fourteen (14) days of the date of delivery of or date of invoice corresponding to the Equipment or Parts, whichever is earlier. Such claim notification shall be accompanied by the evidence that proves Avion's faulty workmanship. The Customer shall at all times follow Avion's instructions and procedures in respect of the disposition and return of any parts or Equipment the subject of any claim hereunder.
All costs of cartage, freight and insurance of Parts and Equipment from Avion's facilities and premises including the charges of Avion, shall unless otherwise agreed be for the account of and payable by the Customer.
All Parts and Equipment shall be available for collection by the Customer at Avion's designated facility. Avion shall not be liable for any loss, damage, or non-receipt of Parts or Equipment after such Parts or Equipment leave Avion's facility whether or not they are delivered by Avion, its agents or employees.
The Customer assumes responsibility for all transport charges in respect of the disposition and return of any Parts or Equipment the subject of any claim hereunder and the supply by Avion of any substitute parts.
Any intellectual property rights in, or relating to, the services of the Parts remain in or vest upon its creation, as applicable, in Avion (or where relevant, third parties) unless otherwise agreed in writing by an Authorised Officer of Avion. For the avoidance of doubt, this clause 17 does not derogate from any existing intellectual property right the Customer may have prior to the commencement of the Services.
No variation of these terms and conditions shall be valid unless specifically agreed in writing by an Authorised Officer of Avion, but Avion reserves the right to review and amend these terms and conditions at any time in its discretion. In the event of any conflict between these terms and conditions and any terms or conditions set forth in any purchase order from the Customer or any other document that purports to govern Avion’s provision of the Services and/or the supply, sale and/or fitting of the Parts to/for the Customer, these terms and conditions shall prevail, and any provision in such purchase order or document that claims that the Customer’s terms and conditions shall prevail shall be treated and construed as void and of no effect.
These terms and conditions and override any earlier set of terms and conditions issued by Avion, and shall continue to have full force and effect notwithstanding any breach thereof by either party. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by these terms and conditions. If any provision of these terms and conditions or its application to any person or circumstances is void or voidable by either party, illegal or unenforceable, the provision shall be read down to the extent that it is no longer void or voidable, illegal or unenforceable. Where such provision cannot be read down, that fact shall not affect any other provision of these terms and conditions which shall be construed as if the void or voidable, invalid or unenforceable provision was omitted.
Failure by Avion in any circumstances whatsoever to compel performance of any term or condition set out here does not constitute a waiver of that term or condition in the absence of an express and specific statement in writing by an Authorised Officer of Avion that Avion has waived the said performance and does not impair the right of Avion to enforce it at a later time or to pursue remedies that it may have for any subsequent breach of that term of condition
Save as otherwise herein provided, these terms and conditions shall be construed in accordance with the laws of HKSAR and the Courts of HKSAR shall have exclusive jurisdiction.
Any notice required to be given to the Customer shall be delivered to the Customer, at or forwarded by pre-paid post or facsimile to the Customer's address and any such notice shall be deemed to have been given when, in the ordinary course of transmission, it would have been received by the Customer