2018 © Geoffroy Van Cutsem – Avocat
GENERAL TERMS OF TRADE
1. General Provisions
Except otherwise stated in a written document, all Contracts concluded by AERO SERVICES and AERO CATERING (hereinafter referred to as “AERO”) on the basis of orders and/or order forms sent to it, written or verbal, shall be governed by the present General Terms of Trade, which are assumed to be known to and accepted by the Client and prevail over all general or specific terms, clauses or conditions from which the Client may benefit, most notably his General Conditions of Purchase. AERO reserves the right to modify the present General Conditions at any time without prior notice.
Our Specific Conditions of Performance of Service, although they are the subject of a separate document, form an integral part of our Conditions of Trade. In case of differences between the Specific and the General Terms, our Specific Conditions of Performance prevail our General Terms of Trade.
The following terms used in the present General Conditions of Sale have the definitions given below:
“Service”: all performance of service of ground handling by AERO (cleaning, handling, anti-icing, de-icing, catering …);
“Contract”: each order and/or order form duly and expressly accepted by AERO
“Purchaser/Client”: any client of AERO who has issued an order and/or order form duly and expressly accepted by AERO.
3. Formation of the Contract
The commercial proposals issued by AERO are made without commitment. AERO shall have the right to require all orders to be shown on a written order form, which shall only be binding upon AERO after express acceptance by AERO, regardless of what the previous practice with the Purchaser may have been. Commitments made by third parties, especially agents, shall not be binding upon AERO expect after written approval from AERO.
4. Cancelling an order
When exceptional circumstances justify such action, AERO may without indemnity cancel an order previously confirmed in writing. AERO shall immediately advise the Purchaser of the cancellation. In this case, both Parties shall meet together in order to determine the best remedy to this situation.
The Services prices indicated on AERO’s tariffs are for information only, and may be subject to alteration without any warning unless otherwise stated in our Specific Conditions of Performance.
The prices invoiced to the Purchaser shall be those of AERO’s tariff in force at the moment of performance of Service unless otherwise stated in our Specific Conditions of Performance.
If the price of the Services ordered but not yet delivered has increased by more than 15%, AERO shall warn the Purchaser before the performance of Service, and the Purchaser may cancel his order in writing within 3 days of the said notification by AERO. 2018 © Geoffroy Van Cutsem – Avocat
6. Deadlines of performance of service
Deadlines of performance are given for information. Delayed or failure of performance of service for any reason whatsoever shall not authorize the Purchaser to cancel or terminate the Contract, and moreover shall not confer the right to any withholding, penalty, compensation or damages with regard to AERO.
Complaints shall only be accepted if they are sent to AERO in writing, together with all the required supporting documentation, within a maximum of 8 working days from performance of service. If it is agreed that the Services supplied do not comply to the order form or the Specific Conditions of Performance agreed upon, AERO shall be obliged merely to remake the performance of service, without being held liable for any compensation or loss in any way whatsoever.
Unless specific invoice condition states otherwise in the Specific Conditions of Performance, invoices shall be payable by the Purchaser within 30 days from the date of the invoice.
When AERO notes a simple delay in payment, it shall have the right to ask for payment on demand or a guarantee for any Purchaser’s outstanding Contracts.
Invoices sent by AERO may only be disputed by the Purchaser by registered letter within a period of 8 working days of receipt. After this deadline, the Purchaser shall be deemed to have irrevocably accepted the invoices.
Without notice or other formality, all overdue invoices shall automatically lead to the imposition of a fixed contractual increase of 15% of the price and a minimum charge of EUR 150,00 as stipulated damages to cover administrative and legal costs, as well as conventional interest calculated on the basis of 1% of the amount per initiated month. All this shall be without prejudice to any damage that AERO may otherwise be entitled to.
In addition, failure to pay any invoice by its due date shall render all other debts owed by the Purchaser to AERO payable immediately and in full, regardless of the planned method of payment, and shall confer upon AERO the right to suspend all of the Purchaser’s outstanding Contracts.
9. Sett-off and netting
Mutual debts of sums of money shall be set off by the parties, automatically and without formality, regardless of whether or not the Client’s liability at law to compensate AERO or any company being part of the Group of Companies linked to AERO or any subsidiary of AERO, has yet to be established, even in the event the Client is subjected to an insolvency proceeding or undergoes a distrain against its assets. Parties expressly accept the automatic netting between all sums of money due by the Client to any AERO or any company being part of the Group of Companies linked to AERO or any subsidiary of AERO and all sums of money due by any AERO or any company being part of the Group of Companies linked to AERO or any subsidiary of AERO to the Client, without necessity of any new agreement, even though the netting concerns sums which are not factually, legally or contractually linked and even though the sums are not yet due nor estimated.
The Purchaser will have to transmit any element necessary for the performances of service and in particular to ensure easy access to the planes.
The Purchaser must be in accordance with all the applicable legislations and to ensure of the conformity of the planes with the standards in force. 2018 © Geoffroy Van Cutsem – Avocat
The liability of AERO shall, even in case of gross negligence, be limited to the ceiling of intervention of the insurance company, per single occurrence.
AERO will precise the ceiling of insurance intervention upon simple request.
Should the case note be covered by any insurance, AERO’s liability arising out of the supplying of the services, whether based upon warranty, contract, tort or otherwise, shall not exceed the actual price paid by Client for the specific service giving rise to the liability and limited to the day of service. AERO may decide, at his sole choice, to satisfy and remedy by a new performance of the service without any complementary cost and damages.
In no event shall AERO be liable to Client or any other person or entity for any direct, special, incidental or consequential damages (including, but not limited to, loss of profits, revenue, data or use) arising out of the supplying of the services, incurred by Client or any third party, even if AERO has been advised or was reasonably aware or should have been reasonably aware of the possibility of such damages or losses.
Except otherwise stated I written, the provision of this article allocate the risks between AERO and the Client. AERO’s pricing reflects this allocation of risk and the limitation of liability specified herein.
12.Term and Termination.
Except otherwise stated in written, AERO may terminate all contract at any time without cause upon giving Client at least 30 days prior written notice of such termination. AERO may also terminate this Agreement via written notice immediately upon any of the foregoing: (i) a material breach of Agreement by Client which is not cured within 10 days of written notice of such breach; (ii) Client files a petition in bankruptcy, is adjudicated bankrupt, or is declared insolvent; or (iii) Client makes a general assignment for the benefit of its creditors, or a receiver of all or substantially all of its property is appointed.
Except otherwise stated in written, Client agrees that AERO may make public or advertise the fact that AERO contracted with the Client in connection with the services.
14.Modification. Except as otherwise indicated by written, no modification or change may be made in any agreement with AERO except by written instrument duly signed by a duly authorized representative.
Except otherwise stated in written, any agreement entered in with AERO may not be assigned, delegated, sublicensed or transferred (whether by operation of law or otherwise) by Client without the prior written consent of AERO. Any attempted assignment, delegation, sublicense or transfer without such written consent shall be void and of no effect. To the extent permitted by this provision, the agreement shall inure to the benefit of the permitted successors and assigns of the Client.
Except otherwise stated in written, AERO is entitled to transfer or assign the fulfillment of any of its obligations totally or partly to any third party without Client’s prior consent. 2018 © Geoffroy Van Cutsem – Avocat
16.Waiver / Modification.
Except otherwise stated in written, none of the conditions or provisions of any agreement entered in with AERO shall be held to have been waived by any act or knowledge on the part of AERO, except by an instrument in writing signed by a duly authorized officer or representative of AERO. Further, the waiver by AERO of any right or the failure to enforce at any time any of the provisions of an agreement, or any rights with respect thereto, shall not be deemed to be a waiver of any other rights hereunder or any breach or failure of performance of AERO.
Any modification to any agreement entered in with AERO should be in writing. This applies also to any renouncement of this writing clause.
Except otherwise stated in written, no any third contractor of AERO is authorized to change, modify or extend the terms of any AERO’s obligation or warranty, of any sort.
17.Validity for the U.S.
Should it be the case that any contract entered in with AERO should be affected by U.S. laws or regulations, Client warrants AERO that any agreement entered in with AERO is lawful and may be performed in accordance with its terms under all laws and regulations in force in the U.S. at the time of execution of this Agreement.
18.Construction of Agreement and Resolution of Disputes.
These General Terms of Trade and all other documents from AERO which are in English, will be interpreted in accordance with the commonly understood meaning of the words and phrases hereof, and it and any and all rights and obligations of the parties in respect of these documents, shall be construed and governed according to the laws applicable to contract.
19.Confidentiality. Client agrees that AERO has a proprietary interest in all information about its services, methods, business policies, practices, prices, suppliers, customers, agents, and sales representatives which is not in the public domain, (hereinafter referred to as “Proprietary Information”), whether in connection with any agreement or otherwise and whether in written or oral form. This Proprietary Information includes but is not limited to trade secrets, inventions, ideas, discoveries, designs and know-how not publicly known. Client shall disclose the Proprietary Information provided by AERO only to those employees to whom it is necessary in order to properly carry out their duties as limited by the terms and conditions hereof. It is the duty of Client to inform employees that they are also bound by the same covenants in this Agreement, entered in with AERO including but not limited to this article 19. Both during and after the term of any agreement entered in with AERO, all disclosures by Client regarding the Proprietary Information to its agents and employees shall be held in strict confidence by such agents and employees. During and after the term of any Agreement entered in with AERO, Client, its agents and employees shall not use the Proprietary Information for any purpose other than in connection with discharging its duties pursuant to the relevant agreement. During the term of any agreement entered in with AERO and thereafter, all such Proprietary Information shall remain the exclusive property of AERO. This article 19 shall also apply to any consultants or subcontractors that Client may engage in connection with its obligations.
20.Irreparable Harm. Client acknowledges that any breach or threatened breach of the restrictive covenants in any agreement entered in with AERO may cause AERO irreparable harm which cannot be adequately measured by money damages. Consequently, upon any such breach or threatened breach, AERO shall be entitled to injunctive relief in addition to any other remedies it may have. 2018 © Geoffroy Van Cutsem – Avocat
21.No Rights by Implication. No rights or licenses with respect to the services performed by AERO or the trademarks or tradenames of AERO are granted or deemed granted other than those rights expressly granted in written.
22.Responsibility for Taxes. Except otherwise stated in written, all fiscal charges, fiscal royalty, or taxes of any sort with respect to any agreement entered in with AERO (with the exception of income taxes measured by the gross or net income of AERO) shall be the responsibility of Client, and if paid or required to be paid by AERO, the amount thereof shall be added to and become a part of the amounts payable by Client to AERO.
23.Force Majeure / Hardship. AERO shall not be liable for any delay or default in performing any obligation if that delay or default is due to any cause beyond its reasonable control; provided, AERO shall notify, in a reasonable form [e.g. phone call, email] and delay due to the circumstances, Client of the occurrence of such delay or default and the expected duration thereof if reasonably known. All obligations of AERO shall return to being in full force and effect upon a reasonable delay after the termination of such delay or default. For the purposes of this article, a “cause beyond reasonable control” shall include, without limiting the generality of the phrase, any act of God, act of any government or other authority or statutory undertaking, industrial dispute, fire, explosion, accident, power failure, flood, riot, terrorism or war (declared or undeclared).
AERO shall be entitled to suspend or terminate performance of any of its obligation under any contract entered in, without any damages to the Client, to the extent that such performance is made unreasonably onerous by any economic circumstances beyond control of AERO as far as these circumstances could not be reasonably foreseen at the time of the formation of the agreement.
24.Compliance With Laws. Client agree that all of its activities under or pursuant to any agreement entered in with AERO has to comply with all applicable laws, rules and regulations, including but not limited to, any corrupt practices legislation and any applicable anti-corruption or anti-bribery laws.
25.Severability. If any provision of any agreement entered in with AERO is declared invalid or unenforceable by a court having competent jurisdiction, it is agreed by Client that this agreement shall endure except for the part declared invalid or unenforceable by order of such court. The parties shall consult and use their best efforts to agree upon (and, if the parties do not agree, a court may modify the agreement to include) a valid and enforceable provision which shall be a reasonable substitute for such invalid or unenforceable provision in light of the intent of the relevant agreement. The same thing applies to any contractual loopholes.
26. Void clauses.
If one of the clauses in the present General Terms of Trade turns out to be void, this shall not have the effect of rendering all of the General Term of Trade void.
Any annex to any contract entered in with AERO, shall be deemed part of the contract only as far as dully signed by an authorized representative of AERO. Verbal special agreements of AERO do not exist except in emergency or reasonably urgent matter or circumstances.
The Client is deemed to be informed and recognize having been informed by AERO, that compliance with all applicable data protection laws is of the utmost importance; this also and particularly applies to the European General Data Protection Regulation of April 27, 2016 (Regulation (EU) 2016/679) (the GDPR). Against this background, parties undertake to use their best efforts, to be organized, governed and operated in a manner which is compliant with the requirements of the GDPR. 2018 © Geoffroy Van Cutsem – Avocat
29. Applicable law and jurisdiction.
The only applicable law shall be the Belgian law. Any reference to foreign laws or regulation in accordance with the principle of the Private International Law is excluded.
All disputes, whatever their nature and whatever the place of delivery of the services, shall fall exclusively within the competence of the Courts of Liège, Belgium unless AERO prefers to bring them before the Courts of the Client’s place of residence or Registered Office.