Terms and Conditions

These Terms and Conditions will apply to all Services provided by HKBAC to the Customer, notwithstanding any other terms proposed by the Customer to the contrary.

1. Definitions

Additional Charges means the charges set out in Clause 4.4.

Agreement is defined in Clause 2.

Aircraft means the aircraft identified in the Service Confirmation.

Airport means Hong Kong International Airport.

Authority means Airport Authority, a statutory body corporate existing pursuant to the Airport Authority Ordinance (Cap.483).

Business Day means a day other than a Saturday, Sunday or public holiday in Hong Kong.

Charges means HKBAC’s charges (including handling charges) which apply from time to time. All charges are stated to be exclusive of any duty, tax or levy imposed by any government or authority.

Customer means the aircraft owner or operator identified in the Service Confirmation and will, unless the context otherwise requires, include its employees and agents, including the Handling Agent and, if applicable, the Maintenance Provider.

Customer Representative means such person as is notified in writing by the Customer to HKBAC from time to time.

Goods means any goods supplied or to be supplied by HKBAC to the Customer at the request of the Customer (whether or not included in the Service Confirmation).

Ground Handling Note means a document agreed by or on behalf of the Customer detailing additional Services to be provided.

Handling Agent means the person identified in the Service Confirmation or otherwise identified to HKBAC requesting the supply of Services from HKBAC in respect of an Aircraft (if identified) on behalf of a Customer.

Hangar Use Permit Licensee means an owner or operator of aircraft which is permitted by HKBAC to use allocated space in the hangars operated by HKBAC at Hong Kong International Airport.

HKBAC Representative means such person as is notified in writing by HKBAC to the Customer from time to time.

HKBAC means Hong Kong Business Aviation Centre Limited.

Land Grant means the agreement dated 1 December 1995 made between the Government of the Hong Kong Special Administrative Region and the Authority (New Grant No. IS7996), as supplemented and modified from time to time.

Maintenance Provider means a HKAR-145 approved maintenance organisation located at Hong Kong International Airport which is instructed by or on behalf of the aircraft owner or operator to perform maintenance on an Aircraft.

Services means any services and/or Goods supplied or to be supplied by HKBAC to the Customer (whether or not included in the Service Confirmation).

Service Confirmation means an e-mail confirmation from HKBAC confirming the provision of Services to the Customer.

2. Request and Agreement

When placing an order for Services, the Customer expressly agrees to accept these Terms and Conditions. HKBAC will confirm its acceptance of the Customer’s order by sending the Customer a Service Confirmation together with a link to these Terms and Conditions, at which point an agreement is formed (Agreement). Such an Agreement consists of the Customer’s order and the Service Confirmation, including any amendments subsequently agreed (whether in writing by way of Ground Handling Note or otherwise, or orally and recorded by HKBAC in writing), and these Terms and Conditions.

3 Services

3.1 HKBAC will provide the Services in accordance with the Agreement.

3.2 Unless otherwise agreed in writing with the Customer, time shall not be of the essence for the provision of any Services by HKBAC.

3.3 The Customer warrants to HKBAC that, if the Customer is not the owner of the Aircraft, he has the approval and consent of the owner as its agent to authorise the performance of the Services in accordance with these Terms and Conditions, and that he is entitled to bind that owner in respect of all matters relating to the supply of the Services to the Customer.

4. Charges and Payment

4.1 The Customer agrees to accept liability for payment of the Services supplied hereunder, unless otherwise agreed in writing with HKBAC. In consideration of HKBAC’s provision of the Services, the Customer agrees to pay the Charges without deduction or set-off. The method of payment shall be agreed between HKBAC and the Customer.

4.2 HKBAC may require a credit card guarantee or a prepayment (of such amount as HKBAC may consider appropriate in its absolute discretion) to be paid by the Customer in respect of any Charges prior to HKBAC providing or agreeing to provide any Services.

4.3 Save as provided in this Clause 4.3, unless otherwise agreed by HKBAC in advance in writing all Charges and/or Additional Charges are due and payable upon demand, and in any event (whether a demand has been made or not) before the Aircraft departs from HKBAC’s control. If the Aircraft does not depart from HKBAC within 7 days of its arrival at HKBAC, all Charges and/or Additional Charges incurred in relation to that Aircraft shall be payable either on the seventh day after arrival or on demand, as HKBAC shall in its absolute discretion decide. Any Charges and/or Additional Charges subsequently incurred in relation to that Aircraft will be due and payable upon demand.

4.4 In addition to the Charges, HKBAC shall be entitled to recover any applicable additional charges (Additional Charges) from the Customer which may be applied by HKBAC from time to time, including but not limited to:

(a) Charges as a result of changes made at short notice by or on behalf of the Customer, such as flight cancellation, cancellation of any Services, or ad hoc changes to Services;

(b) Any charges incurred in relation to the Aircraft due to unexpected operational conditions, including but not limited to extended parking charges due to adverse weather or air traffic control delays; and/or

(c) Any amounts which have been incurred by the Customer in respect of third party services arranged by HKBAC on behalf of the Customer.

4.5 HKBAC may set off any outstanding Charges and/or any Additional Charges against any prepayment received from the Customer (whether or not paid in respect of the charges concerned).

4.6 The Customer acknowledges and agrees that if any Charges and/or Additional Charges are not paid by the due date, HKBAC shall be entitled to (without prejudice to any other right or remedy, including the rights granted to HKBAC in Clause 6):

(a) charge all outstanding Charges and/or Additional Charges to the credit card or deduct from the prepayment provided by the Customer by way of guarantee pursuant to Clause 4.2;

(b) charge interest on overdue amounts calculated daily from the date upon which the Charges and/or Additional Charges first became due until the date of actual payment, at a monthly rate of 2%; and/or

(c) stop providing any Services under the Agreement immediately, in which circumstances HKBAC will incur no liability to the Customer.

4.7 All government and authority charges incurred by the Customer in relation to the Aircraft in addition to the Charges, including but not limited to the landing charge, parking charge, departure tax, and airport construction fee, shall in its absolute discretion be paid to the relevant authorities by HKBAC as agent on behalf of the Customer. The Customer hereby agrees that it is responsible for all such charges and, to the extent that HKBAC pays these charges, the Customer agrees that it will reimburse the charges in full to HKBAC in accordance with this Clause 4.

5. The Customer’s Obligations

5.1 The Customer shall and, to the extent applicable, shall procure that its employees, contractors, sub-contractors, consultants, agents, suppliers, customers, invitees and visitors and their respective employees shall at all times comply in all aspects with:

(a) all applicable laws, ordinances, statutes, regulations, by-laws, directions, requirements, guidelines, recommendations and other provisions (by whatever name called) of or for the time being in force in Hong Kong whilst the Customer or any such persons are at the Airport;

(b) all safety, security and other regulations, by-laws, directions, guidelines, recommendations and other provisions (by whatever name called) for the time being in force issued by the Authority and/or in relation to the Airport or any part thereof and/or in relation to the provision of the Service;

(c) to the extent they are applicable, all relevant restrictions for the time being in force and contained in the Land Grant and all tenant’s obligations under the Land Grant insofar as they relate to any areas of the Airport occupied by HKBAC from time to time; and

(d) all requirements instructions or directions (howsoever called) given to the Customer by the Authority arising from directions given to or requirements imposed on the Authority pursuant to the Airport Authority Ordinance (Cap. 483) (and any amending or associated legislation or regulations).

5.2 In addition to its compliance with the obligations in Clause 5.1 above, the Customer shall:

(a) obtain and at all times comply with and maintain all necessary permits, licences and authorisations required for the Customer to enter into the Agreement and receive the Services;

(b) ensure that the Aircraft meets all safety and towing requirements, rules, and regulations specified in the relevant Original Equipment Manufacturer’s manual;

(c) co-operate with and provide all reasonable assistance to HKBAC in all matters relating to the Services, including the provision of relevant information and documentation;

(d) ensure that it has provided HKBAC with an up to date telephone number for use in case of emergency, and shall update HKBAC in the event of any change to that telephone number; and

(e) appoint a Maintenance Provider to stand by at all times in order to provide technical support to the Aircraft in case of emergency, typhoon precautions or other action required to be taken at short notice, whether required by Airport Authority Hong Kong or otherwise.

5.3 HKBAC may charge the Customer any additional costs and expenses incurred by HKBAC caused by changes in the Customer’s instructions, failure to provide instructions, or failure to comply with Clause 5.2.

5.4 Where the Services requested by the Customer require hangarage:

(a) The Customer agrees to give priority to Hangar Use Permit Licensees at all times. If there is any unforeseen change in schedule, HKBAC reserves the right to withdraw or re-schedule the hangarage service at any time and return the hangarage use to the Hangar Use Permit Licensee. HKBAC shall neither be liable nor responsible for any loss, costs or expenses arising out of or in connection with such a change in schedule; and

(b) Unless HKBAC receives written approval (by letter, email or otherwise in writing) of apron parking instructions and Business Aviation Parking Management System (BAPS) approval from the Hangar Use Permit Licensee, the Hangar Use Permit Licensee shall have hangarage use at all times.

6. Lien

6.1 In respect of any Charges and/or any Additional Charges (including any interest payable thereon) of whatsoever nature and whensoever incurred which are not paid by the due date, HKBAC shall be entitled to exercise a lien over either:

(a) the Aircraft (including its parts and accessories) in respect of which the Charges and/or any Additional Charges were incurred, whether or not incurred by the person who is the operator or owner at the time when the lien is exercised; or

(b) any aircraft (including its parts and accessories) operated or owned by the Customer at the time when the lien is exercised whether or not the Charges and/or any Additional Charges were incurred in respect of the aircraft, parts or accessories concerned.

6.2 The lien referred to in Clause 6.1 above shall not be lost by reason of any aircraft part or accessory departing from HKBAC’s control but shall continue and be exercisable at any time when the aircraft, part or accessory concerned returns to HKBAC’s control or land so long as any Charges and/or any Additional Charges (including interest) remain unpaid.

6.3 Should the payment of any such Charges, Additional Charges or interest not be made to HKBAC within 14 days after a letter demanding payment has been sent by email or by post addressed to the registered owner of the aircraft at any place where he carries on business, then, in addition to any rights which HKBAC might have at law, HKBAC may from time to time and in such manner as it thinks fit in its absolute discretion sell the aircraft and any of its parts or accessories in order to satisfy any such lien.

7. Insurance

7.1 To the extent that the Customer is the owner or operator of the Aircraft, the Customer shall:

(a) be responsible at its own cost for insuring the Aircraft against all risks customarily insurable in respect of loss of or damage to such an aircraft, its engines, components and any spare parts, whether or not belonging to Customer, whilst such property shall be upon HKBAC’s premises; and

(b) have in effect and maintain liability insurance in respect of the Aircraft for a combined single limit in an amount of not less than US$250 million (or equivalent) including aircraft third party legal liability insurance, passenger, baggage, cargo and general third party legal liability insurance.

7.2 The Customer shall maintain the insurance cover with a reputable insurer.

7.3 The Customer shall produce evidence to HKBAC on reasonable request of the insurance policies set out in this Clause 7 and payment of all premiums due on each policy.

7.4 The Customer or if applicable, the Handling Agent, warrants that nothing has or will be done or be omitted to be done which may result in any of the insurance policies set out in this Clause 7 being or becoming void, voidable or unenforceable.

8. Termination

8.1 Notwithstanding Clause 8.2, HKBAC may terminate the Agreement by written notice to the Customer if the Customer does not pay the credit card guarantee or prepayment by the date specified in the Service Confirmation or elsewhere.

8.2 Without prejudice to its other rights or remedies HKBAC may terminate the Agreement by written notice to the Customer if:

(a) The Customer commits a material breach of its obligations under the Agreement and (where the breach is capable of being remedied) that breach has not been remedied within ten Business Days following receipt of written notice giving particulars of the breach and requiring it to be remedied; or

(b) The circumstances set out in Clause 11 apply.

8.3 Termination or expiry of the Agreement shall not affect any rights or obligations which may have accrued prior to termination or expiry. The obligations of each party set out in any clause intended to survive such termination or expiry, including this Clause 8.3 and Clauses 6 (Lien), 9 (Liability), 10 (Dispute Resolution) and 15 (Governing law and jurisdiction) shall continue in full force and effect notwithstanding termination or expiry of the Agreement.

9. Liability

9.1 To the fullest extent permitted by law, the Customer expressly agrees that it will not hold HKBAC liable for any damages, losses, claims, suits, fines, penalties or judgments of any kind whatsoever, whether relating to property damage, personal injury (including death) or otherwise, including all related costs and legal expenses, which the Customer or any of its directors, officers, employees, agents may suffer as a result of delay, non-provision of service, omission, negligence or default unless resulting from an act, inactivity or omission of HKBAC or any of its directors, officers or employees which is either done deliberately with intent to cause loss or damage or recklessly and with actual knowledge that such loss or damage would result.

9.2 In the event that the Aircraft suffers physical damage, the liability of HKBAC shall be governed by Clause 9.1 above and, in any event, HKBAC’s total liability to the Customer shall not exceed US$1,500,000.

9.3 The Customer hereby agrees that under no circumstances shall HKBAC be liable to the Customer for indirect, incidental, consequential, special or exemplary damages, whether in contract or tort (including strict liability and negligence), whether past, present or future, and whether or not foreseeable at the date of the Agreement, including but not limited to, loss of revenue, diminution or loss of value, loss of use, loss of reputation or goodwill, loss of profits or the cost associated with substitute or replacement aircraft.

9.4 The Customer shall indemnify HKBAC against any claims, liabilities, losses, costs and expenses as a result of or in connection with the Customer’s operation of the Aircraft or any maintenance performed by a Maintenance Provider on the Aircraft, or in connection with the arrest, detention, confiscation, forfeiture or seizure of the Aircraft other than by HKBAC.

10. Dispute Resolution

10.1 The parties shall attempt to resolve any dispute (Dispute) which may arise out of or in connection with this Agreement in accordance with the following procedure:

(a) Either party shall give written notice to the other party of the Dispute, setting out its nature and full particulars (Dispute Notice). On service of the Dispute Notice, the Customer Representative and HKBAC Representative shall attempt in good faith to resolve the Dispute;

(b) If the Dispute remains unresolved five Business Days after service of the Dispute Notice, the Dispute shall promptly be referred by either party to an authorised member of the Customer’s management and an authorised member of HKBAC’s management who shall attempt in good faith to resolve it;

(c) If, within ten Business Days of the Dispute having been referred to the individuals specified in (b) above, no agreement has been reached, each party shall be free to pursue litigation in accordance with Clause 15.

10.2 The provisions of this Clause 10 shall apply without prejudice to HKBAC’s termination rights under Clause 8.

11. Force Majeure

HKBAC shall be exempt from any liability for any failure to perform its obligations in respect of the Services resulting from force majeure or any other cause outside HKBAC’s control including (but without limitation to) war, invasion, military force, revolution, insurrection, terrorism, civil or political unrest, fire, storms, typhoons and acts of God, epidemic or pandemic, any delay in supply of materials, parts, tools or equipment beyond its control, labour disputes affecting HKBAC or any HKBAC sub-contractors or suppliers, any statute, order or regulation issued by any government or local authority affecting HKBAC or any condition, by-law, restriction or procedure imposed by the Hong Kong Civil Aviation Department in respect of Hong Kong International Airport. If such circumstances exist for a continuous period of more than six days, HKBAC may terminate the Agreement by written notice to the Customer.

12. Waiver

HKBAC’s rights and remedies shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by HKBAC or by anything whatsoever except by a specific waiver or release in writing by HKBAC and any such waiver or release shall not prejudice or affect any other rights or remedies of HKBAC. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

13. Third Party Rights

Save to the extent that any benefit is conferred on the Authority by virtue of Clauses 5 and 7 of these Terms and Conditions, a person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance (Cap 623) to enforce any term of the Agreement.

14. Invalidity

14.1 If any provision set out in these Terms is invalid or unenforceable under any law, the validity of the remainder of the Terms shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make it consistent with applicable law.

14.2 The modified provision shall be enforceable and enforced, provided it does not impose on any party obligations or benefits that are materially greater than those provided under the original provision.

15. Governing Law and Jurisdiction

15.1 The Agreement and any dispute or claim arising out of or in connection with the Agreement shall be governed by and construed in accordance with the laws of Hong Kong.

15.2 Subject to Clause 10.1, each party irrevocably agrees, for the sole benefit of HKBAC, that the courts of the Hong Kong Special Administrative Region shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Agreement, provided that:

(a) nothing in this clause shall limit the rights of HKBAC to take proceedings against the Customer in any other court of competent jurisdiction; and

(b) any proceedings instituted against HKBAC by the Customer relating to any dispute or claim arising out of or in connection with the Agreement shall be brought in the courts of Hong Kong only.

 


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