The Customer’s attention is particularly drawn to the provisions of clause 7.
1.1 Definitions. In these Conditions, the following definitions apply:
Airwaybill a bill of lading used by the Customer to transport product / goods on commercial aircraft to and from the Suppliers premises;
Business Day a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Charges the charges payable by the Customer for the supply of the Services in accordance with clause 5;
Conditions these terms and conditions as amended from time to time in accordance with clause 11.7;
Consignment a shipment being imported or exported on a carrier’s airwaybill;
Customer the person or firm who purchases Services from the Supplier;
Customer’s Agent any representative of the Transit Shed;
Order each Customer’s order for Services as set out in the advanced notification of arrival issued by the Customer requesting the Supplier to collect or deliver the Product and confirmed by the signature of the Customer’s Agent on the Airwaybill;
Premises X2 Hatton Cross Centre, Heathrow Airport, Hounslow, Middlesex TW6 3UA;
Regulations the regulations relating to the import or export of any commodity into or out of the United Kingdom
Services following the Customer’s Agent clearing the consignments for Import or Export. The Supplier will ensure that all consignments are expedited as per the Customer’s Agents’s instructions.
Special Drawing Rights the Special Drawing Rights at the rates applicable on the date of the Order as defined by the International Monetary Fund and reviewed from time to time by the International Monetary Fund;
Supplier Airworld Airlines Limited registered in England and Wales with company number 4077453;
Transit Shed the place where the Product is held on behalf of the Customer by the Customer’s Agent pending clearance by UK Border Force for Import or Export from Heathrow Airport.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2. Basis of Order
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted for Import or Export when the Customer’s Agent draws up all relevant appropriate documentation at which point and on which date the Order shall come into existence.
2.3 The Order, the travelling airwaybill and these Conditions constitute the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Order. In the event there are contradictory provisions between the Order, the airwaybill, and these Conditions then the terms of these Conditions shall prevail.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s website, catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Order or have any contractual force.
2.5 These Conditions apply to the Order and the Removal Notice to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier warrants to the Customer that the Premises have been approved by HMRC to provide the Services.
3.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
4.1.1 ensure and/or procure that the terms of the Order and the airwaybill are complete and accurate;
4.1.2 co-operate and procure that the Customer’s Agent shall cooperate with the Supplier in all matters relating to the Services;
4.1.3 procure that the Supplier, its employees, agents, consultants and subcontractors are provided with access to the Transit Shed of the Customer’s Agent and other facilities as reasonably required by the Supplier including the Customer’s Agent being ready to make available the Product to the Supplier for collection at the Transit Shed in accordance with the Order and the airwaybill, and, if appropriate, the Customer’s Agent receiving back the Product at the Transit Shed from the Supplier when it has been cleared for consignment by HMRC;
4.1.4 provide the Supplier or procure that the Supplier is provided with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.2 If the Supplier’s performance of any of its obligations under the Order is prevented or delayed by any act or omission by the Customer or the Customer’s Agent or failure by the Customer or the Customer’s Agent to perform any relevant obligation (Customer Default):
4.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies or procures the remedy of the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
4.2.2 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 4.2; and
4.2.3 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. Charges and payment
5.1 The Charges for the Services are specified on the tariff published on the Supplier’s website at www.airworld.aero and which the Supplier may revise from time to time.
5.2 The Supplier shall invoice the Customer every 2 weeks in arrears.
5.3 The Customer shall pay each invoice submitted by the Supplier:
5.3.1 within 30 days of the date of the invoice; and
5.3.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
5.3.3 time for payment of each invoice shall be of the essence of the Order.
5.4 All amounts payable by the Customer under the Order are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Order by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Customer fails to make any payment due to the Supplier under the Order by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per cent per annum above Barclays Bank’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.
5.6 The Customer shall pay all amounts due under the Order in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Order, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Order. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 6 shall survive termination of the Order.
7. Limitation of liability: the Customer’s attention is particularly drawn to this clause
7.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clause 7.1 the Supplier shall under no circumstances whatsoever be liable to the Customer:
7.2.1 whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Order;
7.2.2 for any damage caused to the Product as a result of clearing it for consignment or refusing to clear it for consignment;
7.2.3 any delay of the Customer’s Agent or any failure by the Customer’s Agent to act in accordance with these Conditions; and
7.2.4 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Order, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 17 Special Drawing Rights per kilogram calculated by reference to the weight specified on the Order.
7.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Order.
7.4 This clause 7 shall survive termination of the Order.
8.1 Without limiting its other rights or remedies, either party may terminate the Order with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a breach of any term of the Order and (if such a breach is remediable) fails to remedy that breach within seven (7) days of that party being notified in writing to do so;
8.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
8.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.1.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
8.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
8.1.9 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.1.2 to clause 8.1.8 (inclusive);
8.1.10 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
8.1.11 the other party’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 Order has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may terminate the Order with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Order on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
8.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Order or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1.2 to clause 8.1.11, 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 Order on the due date for payment.
9. Consequences of termination
9.1 On termination of the Order for any reason:
9.1.1 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;
9.1.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Order which existed at or before the date of termination or expiry; and
9.1.3 clauses which expressly or by implication survive termination shall continue in full force and effect.
10. Force majeure
10.1 For the purposes of this Order, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to any delay by the Customer’s Agent in performing its obligations under these Conditions, any delay inspecting the Product by APHA, any damage to the Product caused by APHA, the Customer’s Agent, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Order as a result of a Force Majeure Event.
10.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 7 days, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Order immediately by giving written notice to the Customer and the provisions of clause 9 shall apply.
11.1 Assignment and other dealings
11.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Order and may subcontract or delegate in any manner any or all of its obligations under the Order to any third party or agent.
11.1.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Order.
11.2.1 Any notice or other communication given to a party under or in connection with the Order shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any provision or part-provision of the Order is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Order.
11.3.2 If any provision or part-provision of the Order is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A waiver of any right under the Order or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Order or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its 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 No partnership or agency. Nothing in the Order is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.6 Third parties. A person who is not a party to the Order shall not have any rights to enforce its terms.
11.7 Variation. Except as set out in these Conditions, no variation of the Order, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
11.8 Governing law. This Order, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), 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 arising out of or in connection with this Order or its subject matter or formation (including non-contractual disputes or claims).