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These Conditions shall govern the Contract to the exclusion of any other terms and conditions. The Seller shall supply and the Buyer shall acquire the Goods and/or the benefit of the Services in accordance with these Conditions. No additions or variations to these Conditions shall be binding unless agreed in writing and signed by both the Buyer and the authorised representative of the Seller.
In these Conditions: Component means the component in relation to which the Goods and/or Services are to be provided or performed in accordance with these Conditions; Buyer means the party by whom or on behalf of whom instructions have been given to the Seller for the supply of Services and/or Goods; Conditions means the Seller’s standard terms and conditions of supply as set out in this document together with any special instructions stipulated by the Seller overleaf; Contract means the contract for the sale and purchase of the Goods and/or the supply and acquisition of the Services entered into between the Seller and the Buyer subject to the Conditions; Goods means all goods, parts or other items (including any instalment of the Goods or any part of them) which the Seller is to supply in accordance with these Conditions; Price means, subject to clauses 3 and 5.4, the fixed fee quoted in writing by the Seller in relation to the Goods and/or Services (but, for the avoidance of doubt, not an estimate) (a “Quote”), or, in the absence of a Quote, the amount to be paid for the Goods and/or Services in accordance with the Seller’s standard price list in force from time to time; Services means any work to be done by the Seller in accordance with these Conditions whether by way of repairs, servicing, overhauling or otherwise; and Seller means Brinkley Propeller Services Limited.
2. BASIS OF SUPPLY
2.1 An estimate of the Price, or, in the absence of such estimate, a Quote, given by the Seller to the Buyer shall constitute an offer by the Seller to supply to the Buyer subject to these Conditions.
2.2 Authorisation (verbal or written) by the Buyer to the Seller to supply or an order submitted shall constitute an acceptance of the offer by the Seller to supply the Goods and/or the Services subject to these Conditions.
2.3 Any advice or recommendation given by the Seller or its employees or agents as to the storage, application or use of the Goods or the Services which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed, save that no liability for fraudulent misrepresentation or concealment shall be excluded.
2.4 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order or specification submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods or the Services within a sufficient time to enable the Seller to properly perform the Contract.
3. PRICE, ADDITIONAL WORK AND CANCELLATION
3.1 All Quotes are valid for 30 days only. The Price shall be exclusive of any applicable value added tax.
3.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the Price to reflect any increase which is due to a factor beyond the control of the Seller such as, without limitation, any foreign exchange fluctuation, alteration of duties, significant increase in the costs of labour or materials, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instruction of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
3.3 The seller will inform the buyer of any additional work required in order for an appropriate release document to be issued. This additional work will not be commenced without written authorisation from the buyer. If works required amount to <£180.00 this may be carried out without reference to the buyer who will be liable to pay the seller for the additional works.
3.4 No order which has been accepted by the Seller may be cancelled by the Buyer unless the Seller agrees in writing. If the Buyer cancels the Contract he/she shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used plus the cost of any parts or materials purchased which have yet to be delivered), damages and expenses incurred by the Seller as a result of the cancellation.
4. DELIVERY – TURNAROUND TIMES
4.1 Any delivery date given by the Seller is an estimate only and the Seller shall not be liable for any loss or damage suffered by the Buyer caused by any reasonable or unavoidable delay in delivery. The Goods and/or Aircraft may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
4.2 Unless otherwise agreed, the delivery of the Goods shall be at the Seller’s premises. Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable for the Seller’s additional charges for transport, packaging and insurance. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, the Seller may store the Goods and/or Aircraft until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage.
4.3 The Seller shall supply all the parts and replacement components necessary for the performance of the Services unless otherwise agreed in writing with the Buyer. If the Buyer provides any part or component, it shall be liable to pay to the Seller a handling charge of 10 per cent of the value of the part or component, such value to be as stated in the parts/components supplier’s list at the date of the Seller’s estimate, or, in the absence of such estimate, the Quote, subject to a minimum value of £25 per item.
5.1 The Buyer will make payment to the Seller by the due date stipulated overleaf. Time of payment is of the essence.
5.2 If the Buyer fails to make payment on the due date, then the Seller shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer and charge the Buyer interest from the due date up to the date of actual payment in full (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above base rate. Such interest shall accrue on a daily basis.
5.3 Any duties, taxes, fees, charges or expenses arising from or incurred in connection with the export of any Goods from the United Kingdom and/or the import of any Goods into any other country shall be paid by the Buyer.
6. DISPOSAL OF WORN PARTS
Any time-lifed, worn or old (as determined by the Seller) parts or components removed or replaced by the Seller during performance of the Services shall become the property of the Seller and may be re-cycled or otherwise disposed of of by the Seller without reference to the Buyer. Items of indiscriminate serviceability not collected or requested by the buyer at component collection and or delivery will transfer to the property of the seller.
7. RISK AND PROPERTY
7.1 The Seller shall have no liability for any loss or damage to the Goods after the same have left the Seller’s premises. Risk or damage to or loss of the Goods shall pass to the Buyer:
7.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time the Goods are collected; or
7.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises at the time the Goods leave the Seller’s premises.
7.2 Until such time as the ownership of the Goods passes to the Buyer;
7.2.1 The Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and keep the Goods properly stored and protected and insured and identified as the Seller’s property;
7.2.2 The Buyer shall insure and keep insured the Goods to the full price against “all risk” to the reasonable satisfaction to the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance; and
7.2.3 The Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.3 The Seller shall have a first and paramount lien over any goods or property of the Buyer in its possession for all sums due and payable to the Seller.
7.4 Notwithstanding delivery and the passing of risk in the Goods, ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price.
7.5 If the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or ceases to carry on business or an encumbrancer takes possession or a receiver is appointed of any of the Buyer’s property or assets, the Seller shall be entitled to cancel the Contract or suspend any further deliveries or performance under the Contract without liability to the Buyer and all sums due to the Seller under or in connection with the Contract shall become immediately due and payable notwithstanding any previous agreement to the contrary.
The Buyer shall be responsible at its own cost for insuring all property and or goods against all risks customarily insurable in respect of loss of or damage to goods, whether or not belonging to the Buyer, while such property shall be on the Seller’s premises or in the Seller’s possession.
9.1 Unless caused by the Seller’s negligence, the Seller shall not be liable for any loss or damage to any Goods to the Buyer whilst the same are in possession of the Seller.
9.2 Subject to clause 10.4, the Seller shall only be liable for defective Goods or Services if the defect is due to faulty workmanship or due to a defect in the quality or condition of the Goods or their failure to correspond with any specification provided by the Seller to the Buyer. Any claim by the Buyer must (whether or not delivery is refused by the Buyer) be notified to the Seller within 30 days from the date of delivery, or (where the defect or failure was not apparent on reasonable inspection) be notified to the Seller within a reasonable time after discovery of the defect or failure.
9.3 If the Buyer does not notify the Seller in accordance with clause 10.2 the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
9.4 Neither party shall be liable to the other for any loss of profit, business, contracts, revenues or anticipated savings or for any special, indirect or consequential loss or damage whatsoever. Nothing in these Conditions shall restrict or exclude liability for death or personal injury caused by the negligence of the Seller. The entire liability of the Seller under or in connection with the Contract shall not exceed the Price.
9.5 The Seller shall not be liable for any delay or failure in performance of any of its obligations under the Contract where this is due to matters beyond its reasonable control including but not limited to Act of God; war; difficulties in obtaining materials, labour, fuel or machinery; import or export regulations; industrial action or trade disputes; failure of sub-contractors; power failure or breakdown in machinery.
9.6 Whilst on the Seller’s premises the Buyer shall behave properly and agrees to indemnify the Seller against any loss or damage suffered by the Seller as a result of the Buyer’s act or omission whilst on the Seller’s premises.
9.7 The seller accepts full liability for all goods is transit when transported by BPSL owned and operated vehicles. No liability is accepted for goods transported by any other means and or third party whether organised by either the seller or buyer.
10. BRINKLEY AEROSPACE WARRANTY
10.1 The seller warrants that it will perform all services with reasonable care and skill in accordance with all applicable laws, airworthiness regulations, overhaul manuals, manufacturer’s technical instructions, mandatory service bulletins, plus any non-mandatory service bulletins and/or written instructions of the buyer accepted in an Estimate approval. The seller may make minor changes/modifications to the Goods and/or Services which do not affect price, installation or interchangeability.
10.2 The seller will warrant it’s Goods and/or Services during the first 12 months or first 600 hours of operation (whichever shall occur earlier) from the Form 1 release date for a condition that has arisen due to defects in material or workmanship in the Goods and/or Services delivered by the seller, subject to the other terms and Conditions of this limited warranty, fair wear and tear excepted. The seller will repair or, at its option, replace the subject Goods free of charge. Save that where betterment results from the remedial action the seller will be permitted to invoice the buyer in respect of the value of such betterment. The seller’s entire obligation under such warranty will be fully discharged by such a repair, replacement or issuance.
10.3 The seller will, so far as it is able, pass on to the buyer the benefit of any warranty given by any third party (whether manufacturer, sub-contractor or otherwise).
10.4 Warranty claims made by the buyer pursuant to Condition 1.2 will be subject to receipt (at the buyer’s cost) by the seller of a full report of claimed defects accompanied by any applicable log books (made up to date with all flying times) and details of any work carried out on and storage of the Goods after delivery together with delivery to the seller of the Goods and/or Services to be remedied within 10 days of discovery of a claimed defect.
10.5 If the warranty claim is rejected by the seller the seller will, on request, supply the buyer with a copy of its investigation report.
10.6 If a warranty claim is accepted the seller will reimburse the reasonable costs and expenses incurred by the buyer only in direct connection with delivery of the subject Goods and/or Services for inspection. The seller retains the right to facilitate shipping using their chosen method.
10.7 The seller will not accept no liability whatsoever for warranty claims if the Goods concerned has been subject to misuse or neglect or not been maintained and operated in accordance with any applicable manufacturer’s handbook/manual or instructions applicable to such Goods or if the Goods have been repaired or altered without The seller’s knowledge and prior approval.
10.8 In the event of a warranty claim being accepted by the seller and the required rectification work carried out by The seller then the applicable warranty period specified in condition 1.3 will be extended by the period of time taken to carry out such work. The extended warranty will only apply to the component/area that was rectified; the original warranty remains on the entity. If a warranty claim is rejected the seller may invoice the buyer for work carried out to investigate the claim.
10.9 These specified warranty Conditions can be transferable by the buyer to a third party provided such third party accepts in writing the warranty restrictions included in these Conditions before making any claim against the seller pursuant to such warranty. The seller should be notified of any warranty transfer at the time of transfer. Failure to notify the seller may result in future claims being rejected.
10.10 The seller’s liability for any claim of any kind, including negligence and breach of warranty, for any loss or damage resulting from, arising out of or connected with this order, or from the performance or breach thereof, or from manufacture, sale, delivery, resale, repair or use of the Products covered by or furnished under this order shall in no case exceed the purchase price of the Products which give rise to the claim.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 The Seller may sub-contract the provision of any of the Services.
11.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any component authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.5 The Buyer shall not without the prior written consent of the Seller assign the Contract or any part of it.
11.6 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract under that Act.
11.7 These Conditions shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.