1.1 Unless otherwise agreed in writing, these conditions constitute the only conditions upon which InFlight Peripherals Limited (“IFPL”) is willing to supply goods (the “Goods”) and/or services (the “Services”) to whom any quotation and/or acceptance of Order or Contract is addressed (the “Customer”). These terms and conditions shall prevail over any terms and conditions in the Customer’s Order or other document issued by the Customer except where specifically agreed to by IFPL in writing.
1.2 In these conditions the expression the “Goods” shall mean all products equipment materials parts or other property (whether the same are the property of the Customer or any third party) for the time being delivered by or on behalf of the Customer to and held by IFPL and the expression the “Contract” or “Order” shall mean any Contract or Order entered into by IFPL incorporating these conditions.
2.1 IFPL reserves the right not to accept any Order given by the Customer even if in respect of a quotation provided by IFPL and no Order shall not be binding on IFPL until accepted in writing by IFPL.
2.2 All Orders or Contracts must be submitted directly to IFPL and only duly authorised officers of IFPL are empowered to accept any Order.
2.3 IFPL shall only accept and work to duly authorised Purchase Orders emanating from the Customer unless otherwise agreed in writing by IFPL. Letters of intent shall not be construed as an Order or Contract. Order(s) or Contract(s) maybe sent electronically or as hard copy.
3.1 IFPL shall have the right subject to reasonable prior notice to vary the prices quoted in the event of: i) any increase in the cost materials labour or manufacture; ii) any increase in any customs import or export duties or levies or any other Governmental charges; iii) any cost incurred due to delays caused by the Customer including (but not limited to) late instructions changes in delivery schedules failure to give adequate information and or failure or delay in the supply of special tools materials drawings or patterns.
3.2 Unless otherwise agreed in writing all prices are strictly ex-works (as defined in INCOTERMS 2000) and do not include the cost of packaging or delivery at any other than the premises of IFPL. In the event that IFPL shall store any of the Goods for any period after the expiry of 7 (seven) days from the date of IFPL’s written notice that such Goods are ready for collection or despatch or at the request of the Customer arrange for the Goods to be despatched or dealt with other than by collection by the Customer then the Customer shall pay IFPL’s reasonable charges for the provision or procurement of such services within 7 (seven) days of the date of any invoice sent by IFPL in respect thereof.
3.3 Where prices are agreed in any currency other than pounds sterling IFPL reserves the right to increase prices either prior to or after acceptance of any Order or Contract should the exchange rate vary by 5% (five percent) from the rate at the time the quotation was submitted or Order or Contract was accepted by IFPL.
3.4 Where any prices or charges are given and/or where IFPL is involved in expenditure in a currency other than sterling IFPL shall be entitled to adjust its prices to compensate for any change in the rate of exchange of such currency in relation to sterling by reason of which the cost to IFPL has been increased.
3.5 The prices quoted are subject to the addition of Value Added Tax where applicable at the prevailing rate.
4.1 IFPL shall use reasonable commercial endeavours to adhere strictly to any delivery or completion dates contained in its quotation but unless specifically agreed in writing time shall not be a breach or repudiation of the Contract. IFPL shall not in any circumstances be liable for any consequential loss or damage suffered by the Customer as a result of any such delay.
4.2 If the Order does not otherwise provide IFPL shall be entitled as its option to deliver the Goods by a single delivery or by instalments. If the Order provides for delivery by instalments late delivery shall not affect the balance of the Order nor entitle the Customer to terminate the same.
4.3 Times quoted for despatch or delivery are from acceptance by IFPL of the Customer’s Order or from receipt of any pre-payments due by the Customer or of any necessary parts information or drawings which are to be supplied by the Customer and which are necessary to enable the work to be put in hand whichever is the later.
4.4 The term “On Dock” shall mean the date the goods are ready for collection at the premises of IFPL when delivered ex-works as defined in term 3.2. If delivery is agreed to be under any other condition then it shall be the date the customer takes responsibility for the Goods or when delivered to the premises of the Customer.
4.5 Goods will be delivered via a Certificate of Conformance or such other airworthiness approval as is available or required for the individual Goods and accompanied by a delivery note which shall stipulate the Order or Contract reference, part number, description and quantity. Where applicable a customs invoice shall accompany each shipment.
5.1 In the case of the Goods all risk of loss or damage of any kind shall pass to the Customer upon whichever of the following events occur earlier: i) collection by or on behalf of the Customer or by a carrier for despatch to the Customer or upon notification that the Good are ready for despatch, or ii) the expiry of 7 (seven) days after receipt of the Goods and the Customers fails to notify IFPL of any short delivery over delivery or any faults reasonably discoverable on careful examination. In the absence of receipt of such notice IFPL shall be discharged from all liability in respect of such faults or short or over delivery.
5.2 The Goods shall be held and handled entirely at the Customer’s risk after the passing of the risk as in clause 5.1 above and IFPL accepts no responsibility for any loss or damage in regard thereto or by reason thereof whether the same is in the custody of IFPL or not unless caused by the gross negligence or wilful misconduct of IFPL or it’s employees. The Customer shall when requested satisfy IFPL that adequate insurance cover for the Goods has been arranged.
5.3 The property in the Goods shall not pass to the Customer and IFPL shall remain legal owner of any Goods supplied until such time as the Customer shall have paid to IFPL the full price thereof (“Full Payment”). The Customer acknowledges that until such time as Full Payment has been made he is in possession of the Goods as bailee for IFPL and if so required shall deliver up the Goods to IFPL and/or store the Goods separately from his own goods and in such a fashion as to be ready identifiable by IFPL. If the Customer shall re-sell any of the Goods before Full Payment the Customer shall hold the proceeds thereof on trust for IFPL and place them into a separate account. The Customer agrees to allow IFPL’s representative free and uninterrupted access to the Customer’s premises at all reasonable times whilst IFPL remains unpaid for the provision of the Goods and Services for the purpose of repossessing the Goods and removing the same from the Customers premises.
6.1 Unless otherwise stated all prices and charges are net and payment shall be made to IFPL in sterling or such other currency agreed by IFPL in England within 30 (thirty) days after the date of invoice for the relevant Goods or Services (the “Due Date for Payment”) without any deduction or deferment on account of any dispute set off or counterclaim or in respect of any taxes imposed by or under the authority of any government or public authority.
6.2 IFPL may require a payment on account and/or a payment in advance and all such payments shall be payable on demand.
6.3 Without prejudice to IFPL’s other remedies if the Customer fails to make payment in accordance with these terms IFPL has the right to withhold further deliveries and/or to charge interest on all overdue balances calculated on a daily basis at the rate of 2% (two percent) per annum above the minimum lending rate of Barclay’s Bank plc from time to time in force.
6.4 IFPL may at its sole discretion deduct any sums due from any amount payable to the Customer or any of its associated and/or subsidiary companies.
7.l In addition to any right a lien which IFPL may by law be entitled IFPL shall also be entitled to a general lien on any of the Goods in IFPL’s possession (notwithstanding such items may have been paid for) for all amounts outstanding under the Order or Contract together with all other amounts due to IFPL from the Customer arising in respect of other Goods supplied or Services performed. Until proved otherwise IFPL shall be entitled to assume that any Goods delivered to IFPL by the Customer is the property of the Customer and the Customer will indemnify IFPL against all damages and costs arising by virtue of such not being the case.
7.2 IFPL shall be entitled to payment of all costs and expenses incurred by it in exercising any lien including but without limitation storage charges.
7.3 If for any reason the Customer fails to pay any sum owing to IFPL on the Due Date for payment then IFPL shall if such amounts are still unpaid at the expiry of 60 (sixty) days notice to the Customer be entitled without further notice to sell all or any of the Goods in its possession and to apply the proceeds of sale in or towards satisfaction of all such sums of money together with all costs and expenses including storage legal and professional costs and fees incurred in effecting the sale. Any such sale or re-sale by IFPL may be upon such conditions and at such price as IFPL shall consider reasonable and the Customer shall pay to IFPL on demand any shortfall between the amount realised by such sales and amounts due to IFPL as aforesaid. IFPL shall account to the Customer for any excess within reasonable time.
8.1 Where the Customer within the warranty period specified by IFPL (or where no such period is specified within a period of 12 (twelve) months from the date of delivery) proves to the reasonable satisfaction of IFPL that the Goods supplied or the Services performed are faulty due to sub- standard workmanship or faulty design by IFPL (due regard being given to the state of the art at the date of such design) IFPL shall at its option either credit the Customer with the price paid by the Customer in respect of the faulty Goods or Services or repair or replace the Goods at its own cost provided that: i) the Goods shall have been installed (and where applicable) operated and maintained if other than by IFPL in accordance with good airline and engineering practice and the recommendations of IFPL. ii) no repairs or alterations shall have been effected to the Goods without IFPL’s knowledge and express approval. iii) the warranty does not cover damage due to external causes including accident, abuse, misuse, problems with electrical power, usage not in accordance with IFPL’s instructions for such goods, and normal wear and tear. iii) identification numbers shall not have been destroyed or removed. iv) notice of any faults shall have been given to IFPL within 5 (five) days of occurrence and within the warranty period and if so required by IFPL the faulty part or parts shall have been returned to IFPL at the Customers expense. v) IFPL shall not be liable for any costs associated with the removal or replacement of the Goods on any aircraft or other installation apart from that provided in this clause.
8.2 If any of the Goods are returned and tested to be “no fault found” (to be referred to as NFF) then IFPL shall charge a standard fee of £25 (twenty five pounds sterling) for each unit.
8.3 IFPL’s obligation under this clause shall not extend to any of the Goods or part thereof manufactured by third parties, in the case of such Goods IFPL shall if called upon to do so by the Customer in writing use all reasonable endeavours to procure for the Customer the benefit of any warranty or guarantee provided to IFPL by any such third party apart from which IFPL shall be under no liability whatsoever in respect of any fault in such Goods.
8.4 The foregoing provisions of this clause shall represent the entire liability of IFPL its employees servants and agents in respect of faulty Goods and Services and all other warranties conditions and liabilities as to qualify fitness or description or otherwise whether statutory or at a common law are hereby excluded.
8.5 Should the Customer specify the use of or require IFPL to purchase any third party Goods then IFPL shall have no liability for any failure of design or quality of such Goods.
9.1 The Customer shall indemnify and hold IFPL and its directors, officers, employees, affiliates harmless against any actions claims or demands by third parties whether in tort or otherwise however arising directly or indirectly from: i) the use or operation of the Goods. ii) default (including non-compliance with any obligation hereunder and delay or wrong information and any lack of required information) or misuse of the Goods or any action on the part of the Customer or any person or persons other than IFPL. iii)any delay in notifying IFPL of any claim relating to IFPL.
9.2 IFPL shall be entitled to participate in the defence of any such claim, with its own counsel and charge such costs to the Customer. In such cases where the Customer does not want to defend an action the Customer shall permit IFPL to conduct any litigation which might ensue and all negotiation which might ensue and all negotiations for the settlement of the claim.
9.3 Both parties shall mutually agree on the respective participation where joint action is required. If either party does not assume the defence of any such claim, the other party may defend such claim in such manner as they may deem appropriate, including, but not limited to, settling such claim on such terms, as they may deem appropriate. No action taken by the defending party in accordance with such defence and settlement shall relieve the other of its obligations provided herein.
9.4 This indemnity is conditional upon IFPL receiving the earliest possible notice from the Customer, but no later than 7 (seven) days from notification of such action, of any claim being made or any action threatened or brought against the Customer.
9.5 Except as may otherwise be stipulated hereunder, IFPL shall not be liable for any loss sustained by any person or damage to property whatsoever and howsoever arising directly out of or in consequence of any act or omission by IFPL in the supply of the Goods including without limitation delay detention loss of products loss of profit loss of time charges or liability to third parties.
9.6 Nothing contained in these conditions shall affect IFPL’s liability under the Unfair Contract Terms Act 1977 for death or personal injury caused by the negligence of IFPL.
9.7 This indemnity shall extend to any costs and expenses incurred by IFPL and shall continue in force notwithstanding termination of the Contract.
9.8 Any liability of IFPL to the Customer in respect of infringement of any third party’s letters patent or any other industrial property right relating to any part of the Goods shall be limited to items designed and manufactured by IFPL and (unless otherwise stated by IFPL) shall relate solely to infringements in the United Kingdom. In the event of such infringing item IFPL shall either secure at it’s own cost a licence permitting use of the said item by IFPL without infringement or paying a sum to the Customer in compensation not exceeding the purchase price of the said item.
9.9 IFPL’s obligations under this clause 9 shall not extend to any of the Goods or part thereof designed or manufactured by third parties or to Goods designed and manufactured to the specifications supplied by the Customer. In the case of such Goods IFPL shall if called upon so to do by the Customer in writing use all reasonable endeavours to procure for the Customer the benefit of any warranty guarantee or indemnity provided to IFPL by any such third party in respect of the infringements referred to in that sub-clause apart from which IFPL shall be under no liability whatsoever in respect of any such infringement in respect of such Goods.
9.10 The Customer shall ensure and indemnify IFPL that the integration of IFPL’s products either into their own equipment or into any other installation shall meet relevant airworthiness safety requirements and shall not affect the overall aircraft or installation or system operation.
9.11 No liability shall be accepted by IFPL in respect of infringements arising by combination of the Goods with any other item or the removal or replacement of the Goods on any aircraft or other installation or from their use for a purpose not specified by IFPL or specified by the Customer and approved by IFPL.
9.12 The Customer shall indemnify IFPL that any installation is carried out in accordance with the relevant airworthiness authorities procedures or aircraft custom and practise or where specified by IFPL with its instructions. INFLIGHT PERIPHERALS LIMITED STANDARD TERMS OF TRADING Issue 07/03
10.1 The Customer on its part warrants that any design or instructions furnished by it shall not be such as will cause IFPL to infringe any letters patent or other intellectual property right. IFPL shall have a non-exclusive licence to use any design and/or technology developed for the Customer.
10.2 The sale of any Goods does not convey to the Customer any licence or right to use any of IFPL’s intellectual property which might form part of such Goods except to the extent that its actually embodied in the Goods.
10.3 The Customer shall not represent in any way that it has any right or title to the ownership of any of IFPL’s intellectual property rights relating to the products or a part thereof nor seek nor apply to register in its own name any such intellectual property rights.
11.1 IFPL shall not be liable for any delay or failure in carrying out its obligations which is caused wholly or partly by reason of act of God, delay in transportation, labour disputes, fire, flood, war, accident, Government action, compliance with any request or application from or requirement of any Government authority (United Kingdom or otherwise) whether or not having the force of law inability to obtain adequate labour materials manufacturing facilities or energy or any other cause or reason beyond IFPL’s control or that of it’s servants or agents and if the delay or failure has continued for a period of 3 (three) months then either party may give notice in writing to the other determining the Contract and on such determination IFPL shall within 60 (sixty) days submit a final statement of account that shall include and pre-payments made by the Customer. The balance figure shall be payable to IFPL.
12.1 If the Customer shall make default in or commit a breach of the Contract or any of his obligations to IFPL or if any distress or execution shall be levied upon the Customer’s property or assets or if the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him or if the Customer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or its receiver of such company’s undertaking property or assets or any part thereof shall be appointed IFPL shall have the right forthwith to determine any Contract then subsisting and upon written notice of such determination being given to the Customer shall be entitled to recover from the Customer all losses thereby arising including but not limited to those under term 13 hereof or otherwise.
12.2 Under no circumstances will IFPL accept termination other than for breach of the Contract as set out in this clause.
13.1 The Customer and IFPL agree that neither party will at any time during the term of this Contract, or for a period of 60 (sixty) months after its expiration divulge or release or make public or further use any information relating to the other party’s products, designs, technical knowledge or know how, business or affairs unless such details are determined to be public knowledge or the party divulging such information has the authority in writing from the other party.
13.2 Both parties shall keep all Proprietary Information provided secure and treat it with the same care and security as it would its own. Both parties will brief their staff accordingly.
14.1 In the case of partial completion of an Order by reason of any of the occurrences referred to in clause 11 or 12 hereof IFPL shall be entitled (without prejudice to rights and remedies) to a quantum merit in respect of all work done by it.
15.1 IFPL shall be entitled to sub-contract any or all of its obligations hereunder as is customary within its business.
15.2 IFPL shall be entitled to assign any or all of its obligations hereunder to any successor, subsidiary or group company. In such event IFPL shall inform the Customer.
16.1 Any notice to be given under the Order or Contract shall be in writing (other than writing on the screen of a visual display unit or other similar device which shall not be treated as writing for purposes of this clause) and delivered by hand or by pre-paid first class post or by facsimile letter (notices sent by facsimile shall be confirmed immediately by pre-paid first class post and email) addressed and sent to the party to be served at the registered offices of either party.
16.2 Notices addressed as provided in clause
16.1 shall be deemed to have been duly served: i) if sent by personal delivery, upon delivery at the address of the relevant party; ii) if sent by first class post, 10 (ten) business days after the date of posting; iii) if sent by facsimile, when despatched, provided that if any such notice would otherwise be deemed to be served outside working hours, such notice shall be deemed to be served at the start of working hours on the next business day.
17.1 No waiver by IFPL in respect of any breach by the Customer of its obligations shall operate as a waiver in respect of any subsequent breach by the Customer of those obligations.
18.1 The Contract shall be governed by the Laws of England as a Contract made in England and the Customer hereby submits to the non-exclusive jurisdiction of the English Courts.
18.2 If at any time any term or condition (or part thereof) hereof is or becomes illegal or void as a consequence of the operation of any law or regulation then the remaining provisions hereof shall remain in full force.
18.3 These terms embody the entire understanding of the parties and there are no representation promises, terms, conditions or obligations oral or written, express or implied other than those contained herein. These terms shall be capable of being varied only by a supplemental Order or Contract or memorandum in writing signed by the parties hereto.
18.4 These terms shall be binding and inure to the benefit of the parties hereto and their respective successors and assignees.
19.1 The headings used herein are for convenience only and shall not affect the construction of this Contract.
19.2 A reference to one gender includes a reference to the other gender and words denoting the singular shall include the plural and vice versa.