Terms and conditions
All services provided by FlyJAA are subject to the following terms and conditions:
Article 1. General
1. These terms and conditions shall apply to all proposals, offers and agreements between FlyJAA, hereafter referred to as “User”, and a Contractor, who has been informed that both parties are subject to the same terms and condition. Deviations from the terms and conditions must be agreed to by both parties and confirmed in writing.
2. These terms and conditions also apply to agreements with User, where User has contracted third parties to provide a service.
3. The employees and directors of User, including User, are subject to these same terms and conditions.
4. Any other terms or conditions originating from a Contractor related to the purchase will not be applicable and are explicitly rejected by User.
5. In the event that one or more of these terms and conditions are at any time partially or wholly declared void or may be declared void, these terms and condition shall nevertheless remain applicable in their entirety. User and Contractor will then consult with each other to agree replacement terms or conditions of the void ones, whereby the guiding principle will be to adhere as far as possible to the objectives and coverage of the original terms and conditions.
6. In the event that a difference arises in the interpretation of one or more of these terms and conditions, the parties agree to apply the interpretation that most closely resembles the “spirit” and intent of the terms and conditions.
7. In the event of a situation arising between the parties not covered by these terms and conditions, the situation needs to be judged in accordance with the “spirit” of these terms and conditions.
8. If User does not always oblige the Contractor to abide strictly by these terms and conditions, it does not imply that the terms and conditions are not applicable, or that User to any extent loses the right to demand strict adherence to the terms and conditions.
Article 2. Proposals and offers
1 All proposals and offers from User are non-binding, unless a deadline for acceptance is specified. If a deadline for acceptance is not specified, the proposals or offers shall have no legal binding force in the event that the product or service referred to in the offer or proposal is no longer available.
2 User cannot be legally bound by its offers and proposals if the Contractor can reasonably understand that the offer or proposal, or part thereof, contains an obvious error or written mistake.
3 The prices in offers and proposals are quoted exclusive of General Sales Tax and other government-imposed taxes related to the goods and services included in the offers or proposals, and related to costs incurred for travel and accommodation, mail and administrative costs, unless specified to the contrary.
4 If the Contractor introduces deviations in the acceptance of the offer or proposal, or any other conditions, User shall not be legally bound by them. The deviations from the offer or proposal shall not be deemed legally binding in the agreement, unless User specifies otherwise.
5 An all-in-one offers or total price quotations in an offer or proposal does not oblige User to provide a part of the service at a price deduced by the Contractor from the total price. Prices quoted in offers or proposals are not automatically applicable to future orders.
Article 3. Duration of contract; execution time, risk-transfer, execution of and change to agreement; price increase
1. The agreement entered into by User and Contractor is binding for an indefinite period, unless terminated either as a result of all parties having met all their obligations under the agreement, or both parties explicitly agreeing otherwise in writing.
2. If a time frame is defined and agreed to for the delivery of a service or good, untimely execution shall not be a legal reason to terminate the agreement. If the time frame is not adhered to, the Contractor needs to inform User in writing, giving User a reasonable deadline to execute the service(s) or deliver the good(s) in question.
3. User shall execute the obligations under the contract according to its best insight and professional capacities, applying the best practices available at that time.
4. User reserves the right to use third parties to deliver certain services. The application of article 7:404, 7:407 part 2 and 7:409 BW are specifically excluded.
5. If User or the third parties contracted by User to execute the agreed services on the Contractor's site, or a site designated by the Contractor, User will bear the cost of facilities reasonably desired by the workers of the third parties.
6. Delivery of services is the responsibility of User. The Contractor is obliged to take delivery of services when they are made available to him/her. If the Contractor refuses to take delivery, or is remiss in sharing information or instructions essential for professional delivery, User reserves the right to charge the Contractor for the extra costs incurred. The risk of loss, damage or value reduction is transferred to the Contractor from the time the goods or services are made available to the Contractor.
7. User reserves the right to execute the agreement in phases and to invoice the Contractor accordingly after delivery.
8. If the agreement is executed in phases User reserves the right to postpone delivery of subsequent phases until the Contractor has submitted written approval of the preceding delivery.
9. The Contractor bears responsibility for all the elements, which User has specified as essential, or which the Contractor could reasonably be expected to understand as essential for successful execution of the agreement, to be communicated by the Contractor to User in a timely fashion. If elements negatively affecting the successful delivery of goods and services are not communicated by the Contractor in a timely fashion, User reserves the right to suspend the execution of the agreement and/or charge the Contractor for the additional costs pursuant to the delay, in line with the rates applicable at that time. The execution of the contract will not resume until after the Contractor has shared the required information with User. User is not liable for any damages whatsoever, as User acted on the wrong/incomplete information provided by the Contractor.
10. If during execution of the agreement it becomes clear that it is necessary to modify the agreement to assure its proper execution, the parties shall consult each other in a timely fashion in order to negotiate modification of the agreement. In the event that the nature, scope or content of the activities whether or not requested/instructed by User , the appropriate authorities et cetera, are modified in quality and/or quantity, it can have consequences for the original agreement. The originally agreed price may have to be increased or reduced. User will propose a new price as soon as possible. Modifying the agreement may lead to a change of the originally agreed delivery date. The Contractor accepts the possibility of a change of the agreement, including a pursuant change of the price and delivery date.
11. In the event that the agreement is modified, including possible additional clauses, User reserves the right to only proceed to execution after the authorized person within User and the Contractor have agreed to the new price and other conditions, including delivery date(s). If User is not in a position to immediately execute the new agreement, User cannot be held accountable for non-performance and shall not be deemed as a valid grounds for cancellation of the new agreement by the Contractor.
12. User may refuse requests for modification of the agreement without incurring penalties, if the qualitative and /or quantitative elements of the modifications materially affect the delivery of goods and/or the provision of services.
13. If the Contractor does not fulfill his/her obligations under the agreement, the Contractor will be held liable for all direct and indirect damages suffered by User .
14. If User agrees a fixed price or fixed fee with the Contractor, User reserves the right to at any time increase this price or fee without the Contractor having the right to cancel the agreement, provided that the price increase is the result of changes in legislation or regulations, or the result of increases in prices of minerals, wages et cetera, or other factors reasonably unpredictable at the time of signing the agreement.
15. If a price increase other than the result of a modified agreement exceeds 10% and occurs within three months after signing the agreement, the Contractor is exclusively limited to invoking the appeal defined in title five, section three of Book 6 BW which allows the cancellation of a written agreement, unless User
-at that time is prepared to execute the agreement under the original terms;
-the price increase is imposed by recognized authority or a legal requirement imposed by law;
-the agreement specifies delivery/execution more than three months after signing the agreement;
-or, with the delivery of a business, it was agreed that the transfer shall take place more than three months after the purchase agreement was signed.
Article 4. Suspension, dissolution and interim cancellation of an agreement
1. User reserves the right to suspend execution of the agreement or to cancel the agreement if the Contractor does not meet his/her obligations under the agreement, or only partially meets them, or does not meet them within the required time frame specified in the agreement, or if User, after signing the agreement becomes aware of circumstances that give solid grounds to fear that the Contractor will not meet his/her obligations under the agreement, or if the Contractor does not meet – or only partially meets – request(s) for security made at the time the agreement was entered into, or if as a result of Contractor's delays, User cannot be be expected to meet its obligations originally defined in the agreement.
2. User reserves the right to cancel the agreement if circumstances arise which render the execution of the agreement impossible to realize, or circumstances arise which are of such a nature that User cannot reasonably be expected to execute the agreement in its original form.
3. In the event that the agreement is dissolved, outstanding amounts due to User by the Contractor shall be claimed immediately. If User suspends its execution of the agreement, User retains its rights within the agreement according to the law.
4. In the event of User dissolving or suspending the agreement, User shall not be held liable for any damages or costs resulting from the dissolution/suspension of the agreement.
5. If the Contractor is responsible for the suspension of the agreement, User reserves the right to compensation for damages, meaning direct and indirect costs, that result from the suspension.
6. If the Contractor does not meet his/her obligation under the agreement, and this justifies dissolution of the agreement, User shall have the right to dissolve the agreement with immediate effect without any obligation to pay for any damages, whereas the Contractor, because of his/her non-performance, shall be obliged to pay for damages suffered by User.
7. In the event of intermediate suspension of the agreement by User, User shall consult with the Contractor and take care of outsourcing outstanding executable activities to third parties, unless the Contractor is responsible for the suspension. If the outsourcing of activities result in additional costs for User, User shall claim them from the Contractor. The Contractor shall be obliged to remit the amount claimed within the stated time frame, unless User indicates otherwise in writing.
8. In the event of liquidation, or (application for) bankruptcy or Chapter 11 proceedings, or seizure of assets – in so far as the seizure order is not rescinded within three months – on the part of the Contractor, debt re-structuring or any circumstance, whereby the Contractor can no longer supervise his/her own funds, User reserves the right to cancel the agreement/order with immediate effect, without being obliged to pay for any resultant damages. Any amounts due by the Contractor to User can be claimed forthwith.
9. If the Contractor cancels an order in whole or in part, User reserves the right to claim, by means of an integral invoice to the Contractor, the costs incurred for work performed, preparations made and orders placed to execute the agreement, supplemented with costs for delivery, returns and labor costs reserved for the execution of the agreement .
Article 5. Force majeur
1. User cannot be held liable to meet any obligations under the agreement with the Contractor if it is prevented from doing so by circumstances beyond its control, unless related to User's fault, or the impact of law or legal processes, which do not absolve User's obligations to execute the agreement.
2. Force majeur, as applied to this agreement, is understood to mean, in addition to the general formulation by laws, all circumstances impacting User from the outside, predicted or unforeseen, on which User cannot exert influence, yet prevents User being able to meet its obligations under the agreement. Included are labor strikes within the organization of User and/or third parties. User shall have the right to waive its obligations due to force majeur, in the event that circumstances arise impacting continuation of its ability to execute the agreement.
3. User reserves the right to suspend/postpone its obligations under the agreement during the period that the conditions of force majeur prevail. If this period exceeds three months, either party has the right to dissolve the agreement, without liabilities for compensation to each other.
4. Insofar as User has executed part of its obligations under the agreement before being impacted by force majeur, or will be able to partially fulfill them, User shall have the right to invoice the partially completed – or to be completed – activities separately. The Contractor is obliged to pay this invoice as if it were part of a separate agreement.
Article 6. Payment and collection fees
1. Payment of invoices need to be made within 17 days of the invoice date, in the currency determined by User on the invoice, unless User has confirmed otherwise in writing. User reserves the right to invoice the Contractor periodically. The complete payment needs to appear in User's bank account minimally two days before flight training commences.
2. In the event that the Contractor has not paid an invoice within the specified time, the Contractor is legally in breach of contract. The Contractor is then liable to pay an additional interest fee amounting to one percent per month, unless the legal interest fee is higher, in which case the prevailing interest fee will be charged. Interest on overdue amounts will be charged from the time that payment deadlines are exceeded until the payment of the total amount due is received by User.
3. User reserves the right to apply Contractor payments first against costs, subsequently against interest fees already accrued, and finally against the total outstanding amount and current interest fees. User may, without risking breach of contract, refuse a payment if the Contractor accords a different sequence to the payment schedule on the invoice. User reserves the right to refuse payment of the total overdue amount if it excludes the current interest fee charged and/or the collection fees charged on the invoice.
4. The Contractor never has the right to offset payments due to User. Complaints about the amounts due on an invoice do not suspend payment liability. If the Contractor is not eligible to appeal on the basis of section 6.5.3 (the articles 231 up to and including 247 in Book 6 BW), the Contractor does not have the right to suspend/postpone payment of an invoice for any reason whatsoever.
5. In the event that the Contractor has not met his/her obligations under the agreement within the agreed time frame, all reasonable costs, excluding legal fees, will be charged to the Contractor. The collection fees are calculated on the basis of the current practice in the Netherlands, according to the calculation described in Rapport Voorwerk ΙΙ. If User reasonably incurs higher costs essential to collecting the outstanding amount(s), the actual costs incurred will be charged to the Contractor, including any resultant legal fees and execution costs. The Contractor is liable for the collection fees and the interest fees.
Article 7. Warranties, inspection and advertising, period of limitation
1. All forms of warranty expire in the event of damage resulting from injudicious use, or improper use, or use after the expiry date, improper storage or maintenance thereof by the Contractor and/or third parties when, without written permission from User, the Contractor or third parties effected changes or tried to modify, wrongly attaching things that should not be attached, or in any manner modifying in other than the prescribed manner. Neither does the Contractor have the right to register claims under the warranty as a result of damages caused by circumstances beyond User control (for example, but not exclusively, extreme rainfall or temperatures) et cetera.
2. The Contractor is required to inspect the delivered service immediately it is made available, or upon completion of the delivery. The Contractor is expected to check whether the quality and / or quantity of the delivered goods or services correspond with and meet the requirements of all that the parties have agreed to. Visible damage or missing parts must be reported in writing to User within seven days. Invisible damage or missing elements must be reported in writing to User immediately, or at most within 14 days after discovery thereof. The report needs to be as detailed as possible, in order to ensure that User can respond adequately. The Contractor must give User the opportunity to research and inspect the complaint.
3. If the Contractor reports a complaint in a timely fashion, it does not suspend or postpone the payment terms. The Contractor, in this instance, remains obliged to accept deliveries and make payments for the balance of the ordered components/services from User.
4. If damages or missing components are not reported within the agreed time frames, the Contractor waives his/her rights to repairs, replacements or redress.
5. In the event that a complaint proves to be unfounded, resultant costs, meaning research and inspection costs incurred by User, will be integrally charged to the Contractor.
6. After expiry of the warranty, all costs incurred by User for repairs or replacements, including administrative and delivery costs, will be charged to the Contractor.
7. In departure from law covering expiry periods, any demands made of, and objections made against User by a Contractor and/or third parties, and by User during the execution of an agreement, shall expire after one year.
Article 8. Liability
1. In the event that User is deemed liable, liability shall be limited to that, which is described in this Article 8.
2. User is not liable for damages of any nature, resultant from User operating on the basis of wrong or incomplete information provided by, or in the name of, the Contractor.
3. In the event that User is deemed liable for damages, regardless of the type of damages, the liability of User is limited to maximally twice the value of the invoice amount for the order, that is, the part of the order specific to the damages for which User is deemed liable.
4. In any event, User liability is limited to the amount the User's insurance company is prepared to disburse for the claim.
5. User is exclusively liable for direct damages.
6. By direct damages, we mean reasonable costs associated with determining the cause and extent of the damage, insofar as the determination is related to the damage in terms of these conditions, reasonable costs incurred in reporting non-/or inadequate performance of User to respond to the agreement, insofar as these can be attributed to User, and reasonable costs incurred to prevent or limit damage, insofar as the Contractor demonstrates that these measures actually limited the damage as described in these terms and conditions. User is never liable for indirect damages, including consequential damages, lost profits, unrealized savings and damages due to business stagnation.
7. The limitations of liability referred to in this article are invalid if damages are caused intentionally, or as a result of grave incompetence on the part of User, or its leading subordinates.
Article 9. Indemnity
1. The Contractor indemnifies User against possible claims from third parties, who suffer damages not attributable to User whilst executing the agreement. If User receives claims from third parties for damages related to execution of the agreement, the Contractor shall support User in every way that can be reasonably expected from him/her. If the Contractor fails to take adequate measures, then User shall be safeguarded from claims for inadequate/non-performance, reserving the right to react independently of the Contractor. All costs and damages incurred by User shall be an integral part for the account and risk of the Contractor.
Article 10. Intellectual property
1. User retains the rights accorded to it by Copyright laws and other intellectual property legislation. User owns the Copyright to the acquisition of knowledge acquired during execution of the agreement and the right to apply it in other situations, providing strictly confidential information about the Contractor is not shared with third parties.
Article 11. Allocation of rights and disputes
1. The laws of the Netherlands shall be exclusively applied to the agreement and in the resolution of disputes, even if execution of the agreement is partially or wholly outside the Netherlands, or if the Contractor or third party resides outside of the Netherlands. The application of the Vienna agreement is excluded.
2. The judge/legal system in the place of residence of User is exclusively authorized to settle disputes, unless the law determines otherwise. Nonetheless, User reserves the right to submit the dispute to a judiciary system approved by law.
3. Parties shall only resort to recourse of the justice system after making every effort to resolve their dispute mutually.