1. AGREEMENT
These Standard Terms govern the terms on which APEX AERO agrees to the Sale or
Exchange of components to the Customer. The Customer agrees to be exclusively bound by
these Standard Terms and Conditions (the “Standard Terms”) together with the Special
Terms which apply to any Component Exchange Agreement and which are set out in Parts 1
to 4 thereof. These Standard Terms prevail over any standard terms and conditions
referenced by Customer in its purchase order. For the avoidance of doubt, acceptance by
APEX AERO of the Customer’s Order shall not constitute acceptance by APEX AERO
of any standard terms and conditions of the Customer. If a conflict arises between any of the
terms in the following documents the order of precedence shall be (i) any Special Terms
which apply to any Component Exchange Agreement Component Exchange Agreement (ii)
these Standard Terms and Conditions.
2. DEFINITIONS
In these Standard Terms the following expressions (except where the context requires
otherwise) have the following meanings:
“APEX AERO Facility” means Unit 17, Graylands Estate, Langhurst Wood Road,
Horsham, West Sussex RH12 4QD
“BER” means that the cost of repair of the Off Unit exceeds the Outright Price;
“Customer” means the purchaser of Parts or Repairs pursuant to a valid Order or the
party submitting an Component Exchange Agreement to APEX AERO from time to
time;
“Dual Use” means the aircraft part can be installed on civil aircraft and also used for
military purposes, as defined from time to time by US regulatory authorities;
“Exchange” means APEX AERO provides the Customer with an Exchange Unit in
exchange for an Off Unit from the Customer;
“Exchange Fee” means the fee for the Exchange as specified in the Component Exchange
Agreement from APEX AERO to Customer;
“Exchange Unit” means a Serviceable part that is supplied to the Customer by APEX AERO
in exchange for an Off Unit from the Customer;
“Incoterms 2010” means commercial terms defined by the International Chamber of
Commerce – see https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-
rules-2010/“Off Unit” means a part removed from an aircraft in need of repair and/or overhaul
which has been or is to be replaced by the Exchange Unit;
“Off Unit Return Time” means the time to return the Off Unit as specified in the
Component Exchange Agreement;
“Outright Price” means the agreed price of an Exchange Unit if deemed BER or sold to
APEX AERO as an Outright Sale;
“Outright Sale” means the outright sale of an Exchange Unit by APEX AERO to the
Customer at the price specified in the corresponding quote, Exchange Agreement;
“Order” means (i) any order submitted by the Customer for a Sale or (ii) Component
Exchange Agreement, in APEX AERO’s standard format, submitted by the Customer
to APEX AERO;
“Parts” means any aircraft component parts specified in an Order;
“Repair” means any repair, overhaul, inspection, modification and/ or testing arranged by
APEX AERO on behalf of the Customer and “Repaired” shall be understood
accordingly;
“Sale” means the outright sale of a Part by APEX AERO to the Customer and “Sold”
shall be understood accordingly;
“Serviceable” means a part that meets all OEM and aviation authority specified standards
for airworthiness, including in relation to its storage, and has no known defects, which
would render it unfit for service;
“Units” means, together, Exchange Units and Off Units;
“Unserviceable” means not Serviceable.
3. GENERAL
3.1 All Parts supplied by APEX AERO shall be released in accordance with European Aviation
Safety Agency (“EASA”) or Federal Aviation Administration (“FAA”) regulations. APEX AERO
LTD shall release Parts in accordance with Civil Aviation Administration of China (“CAAC”)
regulations on request.
3.2 Unless the Part is defective and agreed by APEX AERO, Customer may not return to
APEX AERO for credit any Part specifically purchased by APEX AERO from a third
party supplier for onward sale.
3.3 Unless prior advised or agreed in writing, in respect of Parts which are the subject of a Sale,
where such Part is (i) in Serviceable condition (inspected, tested, repaired or modified), it will
be supplied to the Customer with a total of 3 months warranty and (ii) in overhauled
condition, it will be supplied to the Customer with 6 months warranty from date of
shipment.
3.4 Unless prior advised or agreed in writing, in respect to Parts which are subject of a Repair
order whereas such parts are returned (i) in Serviceable Condition, it will be returned to the
Customer with a total of 3 months warranty and (ii) in overhauled condition, it will besupplied to the customer with 6 months warranty from tag date on the specific work
performed.
3.5 APEX AERO reserves the right to charge the Exchange Fees if the Exchange Unit is
returned unused.
3.6 In cases of Exchange Units requiring repair, APEX AERO shall charge the Customer the
sums stipulated in the Component Exchange Agreement.
3.7 For Exchange Units that are returned after the specified Off Unit Return Time, APEX AERO
shall charge the Customer the sums stipulated in the Component Exchange Agreement.
3.8 In the event that the Customer requires an Inertial Reference Unit (IRU) or an Air Data
Inertial Reference Unit (“ADIRU”) for fitment to an aircraft where such fitment shall take
place outside of the European Union (EU), or if the Customer requesting the IRU or ADIRU is
going to be using that part outside of the EU, the Customer shall complete an end user
statement to confirm that such parts will not be used for any purpose connected with
chemical, biological or nuclear weapons, or missiles capable of delivering such weapons, or
for any other military purpose (“End User Statement”). APEX AERO will not ship any
IRUs or ADIRUs until an electronic copy of the End User Statement has been completed and
signed by the Customer and received by APEX AERO. The Customer shall ensure an
original copy of the End User Statement is sent to APEX AERO within two (2) weeks of
the date of shipment. Should APEX AERO not receive an original copy of the End User
Statement within two (2) weeks of shipment. APEX AERO shall charge the Customer a
non-conformance fee of fifteen percent (15%) of the Exchange Fee every two (2) week
period thereafter until the statement has been received.
3.9 If an Off Unit is found to be BER, APEX AERO shall charge the Customer the sums
stipulated in the Component Exchange Agreement.
3.10 If the Off Unit is returned to APEX AERO otherwise than in accordance with the
provisions of the Component Exchange Agreement (eg as to return times, traceability or
condition) APEX AERO shall charge the Customer the sums stipulated in the
Component Exchange Agreement
4. VALIDITY OF PRICE QUOTE
The price quoted by APEX AERO for each Sale or Exchange shall remain valid
for acceptance by the Customer for 7 days from date of quotation. If the
Customer has not accepted the quoted price within 7 days, APEX AERO
reserves the right to revise the price quoted. All prices quoted shall be exclusive
of any VAT payable.
5. PAYMENT TERMS
5.1 The Customer shall pay all invoices within 30 days of the date of the invoice unless prior
advised or agreed at point of order..
5.2 If the Customer wishes to dispute any invoiced amount, it shall notify APEX AERO as
soon as practical and in any event within 14 days of the date of invoice. If the Customer
does not notify APEX AERO of a dispute within such time period, the invoice shall be
deemed accepted. If the Customer does notify APEX AERO of a dispute in the
timeframe required, Customer shall pay that part of the invoice not in dispute when due. In
the event that representatives from the Customer and APEX AERO cannot resolve any invoice dispute within seven days, the parties shall follow the dispute resolution procedure
in Clause 15 below.
5.3 If the Customer fails to make any payment due to APEX AERO under these Standard
Terms by the due date for payment, then the Customer shall pay interest on the overdue
amount at the rate of 8% per annum above Bank of England’s base rate from time to time.
Such interest shall accrue on a daily basis from the due date until actual payment of the
overdue amount, whether before or after judgment. The Customer shall pay the interest
together with the overdue amount and any applicable fixed sums in accordance with the
relevant law.
5.4 APEX AERO reserves the right to require the Customer to pay to APEX AERO a
deposit before the Exchange is shipped to the Customer to cover the non-return of the Off
Unit and its repair, such deposit to be specified in the Component Exchange Agreement.
6. PLACE OF DELIVERY
All Parts shall be delivered Ex Works (as defined in Incoterms 2010) the APEX
AERO Facility and the Customer shall be ready to collect them when notified
by APEX AERO. The Customer shall reimburse any additional expense
incurred by APEX AERO due to the Customer not being ready or able to
collect Parts when requested to do so.
7. DELIVERY DATE
7.1 APEX AERO will use reasonable endeavours to meet any delivery date specified on the
customers purchase order. APEX AERO will provide an estimated delivery date, on
request by the Customer. APEX AERO shall not be liable in any way in respect of late
delivery howsoever caused nor shall failure to deliver in accordance with an estimated
delivery date be deemed to be a breach of contract.
7.2 Unless stated otherwise in a Component Exchange Agreement, each Off Unit shall be
delivered DDP (as defined in Incoterms 2010) APEX AERO’s facility.
7.3 Unless agreed otherwise in writing, delays in the fulfilment of an Order shall not entitle the
Customer to (i) refuse to take delivery of the completed Order; or (ii) claim damages; or (iii)
terminate these Standard Terms.
8. PACKING, INSURANCE AND OTHER DOCUMENTATION REQUIREMENTS
8.1 Parts dispatched by APEX AERO shall be in packaging suitable for road transportation
within the United Kingdom. APEX AERO reserves the right to charge for any special
packaging requirements of the Customer. Packing materials, containers, etc, provided by
APEX AERO are returnable. Where such packing materials are charged as an extra,
credit will be allowed if returned carriage has been paid and the packing is received in good
condition.
8.2 The Customer shall maintain insurance appropriate to its operations and in accordance with
best aviation industry practice and shall provide evidence of the same if requested by APEX
AERO.
8.3 The Customer shall provide by email to APEX AERO full dispatch details of any Off Unit
sent to APEX AERO for Repair (AWB Number, Flight Number and Date) and shall ensure
such Off Unit is accompanied by the following certification documents:8.3.1 Part Identification tag containing:
Part number; serial number; description;
Reason for removal; date of removal; registration of aircraft from
which removed;
Aircraft hours/cycles when item removed;
Hours / cycles on items when removed (life limited Parts only)
8.3.2 Packaging slip showing transfer of the Customer’s Part to APEX AERO LTD;
8.3.3 ATA spec 106 material certificate issued by FAA Part 121/129/135 carrier or FAA/EASA
145 approved maintenance facility or nationally approved (by the CAA) for an air carrier
with a statement that:
The Off Unit was not procured from any US Government or military
source;
The Off Unit was produced by the Original Equipment Manufacturer;
The Off Unit is non-incident related and has not been subjected to
severe stress or heat or immersed in salt water;
The Off Unit is fully traceable to one of the following approved
sources:
o FAA Part 121, 129 or 135 certified carrier;
o Original Equipment Manufacturer;
o Foreign air carrier, approved by a recognised national aviation
airworthiness authority.
8.3.4 Full “back to birth” traceability documents for ultimate time/cycle life limited parts.
8.4 The Customer must ensure that all aircraft toilet and kitchen Off Units are thoroughly
cleaned at source before being returned to APEX AERO. On the return to APEX AERO,
all such Off Units shall be adequately bagged and shall be accompanied by a statement
saying that the Units have been cleaned. APEX AERO will not accept, store or ship any
aircraft toilet or kitchen units unless they have been adequately cleaned and packaged in
this way. In the event that such an Off Unit is returned to APEX AERO without being
cleaned, APEX AERO shall have the right to arrange for the Off Unit to be cleaned by a
third party and recharge to the Customer all the costs incurred by APEX AERO in
cleaning the Off Unit, including any transportation costs.
9. FORCE MAJEURE
Neither APEX AERO nor the Customer shall be in breach of these Standard
Terms nor liable for delay in performing, or failure to perform, any of its
obligations under these Standard Terms if such delay or failure results from
events, circumstances or causes beyond its reasonable control, and in such
circumstances the affected party shall be entitled to a reasonable extension of
the time for performing such obligations, provided that if the period of delay or
non-performance continues for six months the party not affected may terminate
these Standard Terms by giving 14 days’ written notice to the other party.
10. CONFIDENTIALITY
Each of APEX AERO and the Customer undertakes that it shall not disclose to
any third party any confidential information concerning the business, affairs,customers, clients or suppliers of the other party or the contents of any written
agreement between the parties, except as required by law or with the written
consent of the other party.
11. LIABILITY
11.1 APEX AERO makes no warranty or representation of any kind with respect to any
Sale, Repair, Exchange as to merchantability, fitness for purpose, condition, quality, material
design suitability, workmanship or operation of any kind or nature. All other conditions
warranties or representations expressed or implied (save for the conditions implied by
statute) are, to the fullest extent permitted by law, expressly excluded.
11.2 Nothing in these conditions excludes or limits the liability of APEX AERO (i) for death
or personal injury caused by APEX AERO’s negligence; (ii) for any matter which it would
be unlawful for APEX AERO to exclude or attempt to exclude its liability; or for fraud or
fraudulent misrepresentation.
11.3 Neither party shall be liable to the other for:
11.3.1 Any indirect, special or consequential loss or damage; or
11.3.2 Loss of data or other equipment or property; or
11.3.3 Economic loss or damage; or
11.3.4 Incurring of liability for loss or damage of any nature whatsoever suffered by third
parties, other than death or personal injury (including in each case
Incidental and punitive damages); or
11.3.5 Any loss of actual or anticipated profit, interest, revenue, anticipated savings or business
or damage to goodwill, including any AOG related losses or claims of any kind.
11.4 APEX AERO’s total liability in contract (including for any statutory interest payable),
tort (including negligence or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated performance of
these Standard Terms (including for any statutory interest payable) shall be limited to the
Order value.
11.5 The Customer indemnifies and holds APEX AERO harmless against all taxes (other
than corporation tax of APEX AERO), levies, duties, charges, assessments or
withholdings of any nature for which APEX AERO may be liable by operation of these
Standard Terms and for any legal costs incurred by APEX AERO in enforcing any of its
rights in respect of these Standard Terms.
12. CANCELLATIONS
12.1 The Customer may cancel any Order without charge if it notifies APEX AERO of the
cancellation, in writing: (a) for a Sale, prior to the shipping of the Part (b) for Repairs, prior to
APEX AERO’s receipt of the Part, (c) for an Exchange , if (i) the Exchange Unit is already in
stock at an APEX AERO facility at the date of the Component Exchange Agreement and
(ii) the Customer notifies APEX AERO of the cancellation in writing, prior to notification
by APEX AERO to Customer that the Exchange Unit is ready for dispatch;
12.2 If, in order to satisfy the Customer’s Component Exchange Agreement , APEX AERO
has been required to order the Exchange Unit from a third party supplier, and the Customer
wishes to cancel the Component Exchange Agreement prior to dispatch of the Exchange
Unit, the Customer shall notify APEX AERO in writing. APEX AERO reserves the right to recharge the Customer for restocking fees incurred in obtaining the Exchange Unit from
a third party supplier.
12.3 APEX AERO shall be entitled to suspend or cancel further Sales or Repairs under this
and / or any other agreement between the parties hereto if the Customer:
12.3.1 fails to take delivery of any Exchange Unit ordered and made available to it;
12.3.2 fails to pay any amount due under these Standard Terms or the Credit Agreement
within seven days of the due date; or
12.3.3 becomes bankrupt or suffers any similar or analogous action in consequence of any
unpaid debt to any person or company.
12.4 On cancellation:
12.4.1 APEX AERO shall have the right to re-take possession of any Part that has not been
paid for or, in respect of a Repair which has not been paid for, to retain possession of
any Part by way of a repairer’s lien; and
12.4.2 The Customer shall immediately pay all fees and charges properly falling due under
these Standard Terms or any relevant Credit Agreement.
13. PASSING OF RISK AND TITLE
13.1 All Parts are at the risk of the Customer from delivery Ex Works (as defined in Incoterms
2010) the APEX AERO Facility. Parts Repaired are at the risk of the Customer until
received by APEX AERO Delivered Duty Paid (as defined in Incoterms 2010) APEX AERO
Facility. If the Customer loses or damages a Unit whilst in its care, custody or control, it
shall be responsible for either the cost of the repair (if the unit is not beyond economic
repair) or shall pay the replacement value (as defined in the Component Exchange
Agreement) if the Unit has to be replaced.
13.2 The Customer agrees and warrants that title to and ownership of:
(i) Parts Sold by APEX AERO shall remain with and be vested in APEX
AERO until APEX AERO has received from the Customer full
payment or until such time as it is installed on the Customer’s aircraft
(whichever is the earlier) at which point in time, title to the Exchange
Unit will automatically pass from APEX AERO to the Customer;
(ii) An Exchange Unit supplied by APEX AERO shall remain with and
be vested in APEX AERO until APEX AERO has received from
the Customer full payment or until such time as it is installed on the
Customer’s aircraft (whichever is the earlier) at which point APEX
AERO shall pass full legal and beneficial title to the Customer
AND the Customer shall automatically and simultaneously pass full
legal and beneficial title to and ownership of the Off Unit to APEX
AERO;
(iii) Until transfer of title, the Customer holds the Exchange Unit as bailee
and owes to the company the normal fiduciary obligations of a bailee
by way of custody in respect thereof.
(iv) The Customer acknowledges that APEX AERO has the legal right
to assert such lien (or any other statutory or common law liens
applicable in law, foreign or domestic).(v) If the Customer fails to tender payment accrued due under any
agreement with APEX AERO (or any of its affiliates), APEX AERO
shall have the right to withhold supply of any unit to the
Customer Property until such time as payment has been made.
(vi) By accepting these Standard Terms, Customer acknowledges that it
has granted a power of sale to APEX AERO in respect of
Customer’s Property in APEX AERO’s possession which may be
exercised by APEX AERO in the event that any amount owed to
APEX AERO (or any affiliate of APEX AERO) remains payable
sixty days are the date of the original invoice in respect of the services
delivered.
14. MISCELLANEOUS
14.1 APEX AERO and the Customer declare that they each have the right, power and
authority, and have taken all action necessary, to execute and deliver and to exercise their
rights and perform their obligations under these Standard Terms.
14.2 Unless and until APEX AERO and the Customer expressly agree otherwise in writing,
these Standard Terms and the relevant Order contain the entire agreement between the
parties with respect to its subject matter. Each of APEX AERO and the Customer
acknowledges that, in entering into these Standard Terms, it has not relied on, and shall
have no right or remedy in respect of, any statement, representation, assurance or warranty
(whether made negligently or innocently) other than as expressly set out in these Standard
Terms or in writing within the Component Exchange Agreement.
14.3 Any amendment, variation or modification of these Standard Terms shall be ineffective
unless made in writing and signed by an authorised representative of each party.
14.4 the Customer shall not be entitled to withhold payment of any sums after they become
due by reason of any right of set-off or counterclaim which the Customer may have or may
wish to have or for any other reason whatsoever. APEX AERO shall be entitled to set-off
any Customer funds held on deposit against any amounts due and payable (and remaining
unpaid) under these Standard Terms.
14.5 If any provision of these Standard Terms (or part of any provision) is found by any court
or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that
provision or part-provision shall, to the extent required, be deemed not to form part of
these Standard Terms, and the validity and enforceability of the other provisions of these
Standard Terms shall not be affected. In addition, if a part of these Standard Terms
becomes invalid, the parties will endeavour in good faith to reach agreement on a
replacement provision that will reflect, as nearly as possible, the intent of the original
provision.
14.6 The Customer shall not assign, transfer or sub-contract any Order to any third party
without APEX AERO’s prior written consent.
14.7 The parties to these Standard Terms do not intend by these Standard Terms to confer
any rights whatsoever on any other party. Accordingly, the parties hereby expressly exclude
the provisions of the Contracts (Rights of Third Parties) Act 1999 (or re-enactment thereof).
14.8 Where the Customer delivers any other standard terms and conditions to APEX AERO
in respect of an Order, these Standard Terms and Conditions of Supply shall prevail.14.9 APEX AERO may assign, delegate, sub-contract, mortgage, charge or otherwise
transfer any or all of its rights and obligations under this agreement without the prior
agreement of the Customer. This agreement shall be binding upon, and ensure to the
benefit of, any successors and assignees of APEX AERO, and references to it shall
include its successors and assignees.
15. DISPUTE RESOLUTION, LAW AND JURISDICTION
All disputes arising out of or in connection with these Terms and Conditions shall
be subject to the exclusive jurisdiction of the English courts applying the law of
England and Wales. Any Customer incorporated outside the EU shall provide
either a UK address for service of process or shall appoint a process agent in the
UK as a condition precedent to being granted credit by APEX AERO.
Customer shall notify APEX AERO of such address on the new customer
application form.
16. NON-SURVIVAL OF TERMS
Unless expressly provided, no term of this Agreement shall survive expiry or
termination of this Agreement.
17. VARIATION
No amendment or variation shall have effect unless it is in writing and signed by or on
behalf of the Apex Aero Ltd and the Customer.
18. TERMINATION
Apex Aero Ltd and the Customer may agree in writing to terminate the Agreement,
and if the parties so agree, they shall agree the date upon which that termination
should take effect and any further terms upon which the Agreement should be
terminated.
19. ENTIRE AGREEMENT
Subject to any variations made in accordance with clause [], this Agreement
constitutes the entire agreement between the parties with respect to its subject
matter.
The Agreement supersedes any prior agreements, negotiations, promises, conditions
or representations, whether written or oral, and the parties confirm that they did not
enter into the Agreement on the basis of any representations that are not expressly
incorporated into the Agreement. However, nothing in this Agreement purports to
exclude liability on the part of either party for fraudulent misrepresentation.
20. FORCE MAJEURE
Neither party shall be responsible to the other for any failure or delay in performance
of its obligations and duties under this Agreement which is caused by circumstances
or events beyond the reasonable control of a party. However, the affected party must
promptly on the occurrence of such circumstances or events:
inform the other party in writing of such circumstances or events and of what
obligation or duty they have delayed or prevented being performed; and
take all action within its power to comply with the terms of this Agreement as fully and
promptly as possible.
Unless the affected party takes such steps, clause [] shall not have the effect of absolving
it from its obligations under this Agreement. For the avoidance of doubt, any actions or
omissions of either party’s personnel or any failures of either party’s systems,
procedures, premises or equipment shall not be deemed to be circumstances or events
beyond the reasonable control of the relevant party for the purposes of this clause,
unless the cause of failure was beyond reasonable control.
If the affected party is delayed or prevented from performing its obligations and duties
under the Agreement for a continuous period of 3 months, then either party may
terminate this Agreement by notice in writing within such period as is reasonable in the
circumstances (which shall be no shorter than 28 days).
The termination shall not take effect at the end of the notice period if the affected party
is able to resume performance of its obligations and duties under the Agreement within
the period of notice specified in accordance with clause [] above, or if the other party
otherwise consents.
21. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English law.
Without prejudice to the dispute resolution procedures contained in this Agreement, in
relation to any legal action or proceedings to enforce this Agreement or arising out of or
in connection with this Agreement, each party agrees to submit to the exclusive
jurisdiction of the courts of England and Wales.”
22. WAIVER, DELAY OR FAILURE TO EXERCISE RIGHTS
The failure or delay by either party to enforce any one or more of the terms or conditions
of this Agreement shall not operate as a waiver of them, or of the right at any time
subsequently to enforce all terms and conditions of this Agreement.”
23. SEVERANCE
Subject to clause [], if any term of this Agreement, is held to be invalid, illegal or
unenforceable by any court, tribunal or other competent authority, such term shall, to
the extent required, be deemed to be deleted from this Agreement and shall not affect
the validity, lawfulness or enforceability of any other terms of the Agreement.
If, in the reasonable opinion of either party, the effect of such a deletion is to undermine the
purpose of the Agreement or materially prejudice the position of either party, the parties shall
negotiate in good faith in order to agree a suitable alternative term to replace the deleted term
or a suitable amendment to the Agreement.”