Terms and Conditions
The following terms and conditions shall, inter alia be part of the purchase order (“Order”) to govern the purchase of certain goods and services (“Services”) by the airline named in the Order ("Airline”) from Global Catering (“GCAT”). These terms and conditions are incorporated by reference into all written and electronic orders between Airline and GCAT as if expressly set forth therein.
1. Terms and Conditions. The Order is expressly conditioned upon Airline’s unequivocal agreement that the terms and conditions set forth herein shall be the sole and exclusive terms and conditions applicable to the Services provided to the Airline.. GCAT shall not be bound by any terms or conditions contained in Airline’s order or acknowledgment forms or otherwise proposed by the Airline that are additional to or different from the terms and conditions set forth herein, unless an authorized representative of GCAT expressly agrees thereto in writing that references such intent. In the absence of such written agreement by GCAT, any performance by GCAT pursuant to this Order, including, without limitation, the production of any goods or performance of services shall be deemed to be solely upon the terms and conditions set forth herein.
2. Obligations of Airline. Airline shall provide GCAT with: (a) comprehensive, accurate and up-to-date written information and/or instructions required by GCAT in order to provide the Services as agreed by the parties, and (b) sufficient equipment and other Airline-owned items to enable GCAT to perform the Services. Airline shall comply with the applicable Location’s up count, down count and meal bank policies. Failure to adhere to such policies may result in meal shortages or overages, which shall be the responsibility and expense of Airline. In addition, Airline acknowledges and agrees that GCAT may charge certain premium charges in accordance with the Location’s policy and price sheets for irregular flight operations or Services performed for flights arriving and/or departing over one hour past the original scheduled arrival and/or departure time. If Airline does not comply with this provision, GCAT will have no liability for, and Airline shall indemnify GCAT against, any and all loss arising from such failure. GCAT shall not be responsible for defects in products or material provided by or contracted from third parties by the Airline.
3. Cancellation Policy. When cancellation by the Airline of Services for a catered flight is necessary after Services have been ordered, the applicable charges shall be adjusted as follows: No charges shall be invoiced, if cancellation is made in excess of 12 hours before the scheduled time of departure; 50% of the applicable charges shall be invoiced if cancellation is made between 6 and 12 hours prior to the scheduled time of departure; or 100% of the applicable charges shall be invoiced, if cancellation is made less than 6 hours prior to the scheduled time for departure.
4. Flights, Delays. GCAT shall not be liable, nor shall Airline receive any compensation or deduction, for any Services or flight delays caused by airport operations beyond GCAT’s control, including, without limitation, airport traffic congestion or restricted access to the airport. In the event of delays or cancellation, the Airline shall reimburse GCAT for meals that cannot be postponed, rescheduled, canceled or used in other GCAT catered flights. Any special or additional meals shall be ordered at least 24 hours prior to the scheduled time of departure for each Catered Flight, and GCAT shall use reasonable efforts to comply with such order. Any special meals cancelled by Airline shall be paid for in full. If GCAT purchases any special meals or products (kosher, health-related or other), and provided that GCAT orders such meals or products in amounts that are reasonable based on historical demand, passenger load forecasts and flight schedules, Airline will purchase back from GCAT (at GCAT’s original cost without markup) any such special meals that go unused beyond their expiration date or are otherwise deemed surplus in GCAT’s reasonable discretion.
5. Payments. Airline agrees that prompt payment of invoices and other amounts due is of the essence of this Order, and that any payments not received on the due date therefor shall accrue interest at a rate of 1.5% per month or the highest rate permissible under applicable law, if lower from such due date until paid in full. Any such interest shall be payable on demand. In addition, Airline shall reimburse GCAT on a full indemnity basis for expenses reasonably incurred by GCAT (including, without limitation, fees and expenses of legal counsel, whether in-house or outside counsel) in obtaining payment of any past due amounts. All payments hereunder will be made without deduction, set-off or counterclaim of any kind. All invoices will be deemed accurate and conclusive, unless Airline disputes in writing the relevant invoice within 14 days of receipt of the invoice. If at any time GCAT believes that it is insecure of receiving full and prompt payment for the Services, GCAT may demand adequate assurance of payment within 7 days, such as a security deposit. If Airline fails to provide GCAT with adequate assurance of payment within such 7 days period, GCAT may immediately suspend performance of the Services and terminate this Order.
6. Taxes. The prices offered by GCAT under this Order do not include any taxes, fees or similar charges. Airline shall pay all taxes imposed by any taxing authority and required to be paid by GCAT or Airline as a result of Services provided or menu items furnished to Airline under this Order. Airline shall also be responsible for any interest or penalties assessed in connection with such taxes. For purposes hereof, “taxes” includes any and all taxes, charges, levies, imposts and any port, airport authority or similar fees imposed on GCAT in connection with the performance of the Services and all other fees, imposts, duties and charges of a similar nature.
7. Inflation. Effective beginning on the first anniversary of the Term of this Agreement, and on each anniversary of the Term thereafter, the prices for the Services will be revised upwards to reflect the increase in the applicable Consumer Price Index (CPI) on such anniversary of the term as compared to charges in effect on the last date of the last adjustment. Notwithstanding anything to the contrary herein, in the event of changes in relation to (i) food and beverage prices, or (ii) raw material components used to provide menu items, or (iii) the Airline’s flight schedules, or (iv) the volume of meals provided to the Airline under this Order, or (v) the equipment and other Airline-owned items to enable GCAT to carry out the Services, or (vi) governmental decrees or (vii) increased security demands, or (viii) any other matters that result in direct or indirect cost increases to GCAT in providing the Services, GCAT shall be entitled to pass the cost of the increase in full onto the Airline at any time. Each Party can request that Parties mutually consider alternative product solutions or menu items or ingredients in cases where the price of such originally specified product, item or ingredient has increased.
8. Risk of Loss; Title. Risk or loss of, or damage to, all goods provided by GCAT to the Airline passes to the Airline upon delivery of those goods to Airline. Title to all goods provided by GCAT to Airline will pass to Airline upon GCAT’s receipt of payment in full for such goods and Services.
9. Exclusive Service Warranties. GCAT warrants that services will be performed in a workmanlike manner in accordance with industry standards with reasonable care by appropriately qualified personnel. EXCEPT AS EXPRESSLY SET FORTH IN THIS ORDER, GCAT DOES NOT MAKE, AND GCAT HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND ANY AND ALL WARRANTIES HEREINAFTER ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, GCAT EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10. Liability; Indemnification. IN NO EVENT WILL GCAT OR ITS AFFILIATES BE LIABLE TO AIRLINE OR ANY OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR ANY LOST PROFITS OR OPPORTUNITIES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, LOSS OF DATA, THEFT OF DATA BY THIRD PARTIES, THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS ORDER, EVEN IF GCAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF GCAT FOR ANY DAMAGES IN CONNECTION WITH THE SERVICES AND THIS ORDER EXCEED THE AMOUNTS ACTUALLY PAID TO GCAT HEREUNDER FOR THE PARTICULAR SERVICES THAT GAVE RISE TO DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED ON CONTRACT, TORT OR OTHERWISE. THIS SECTION WILL NOT APPLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION. Airline shall indemnify and hold GCAT, its directors, officers, employees, representatives and agents (each a “GCAT Indemnitee”) harmless from any and all liabilities, claims, demands, suits, judgments, causes of action, losses, damages, fines, expenses and costs (including, but not limited to, reasonable attorney’s fees incurred by GCAT in establishing its right to indemnification hereunder) of third parties arising from or in connection with (a) Airline’s or any sublessee’s use or operation of any aircraft with respect to which GCAT performs Services and (b) the gross negligence or willful misconduct by Airline or any of its officers, employees or agents. Airline shall reimburse any GCAT Indemnitee for any claims to which the foregoing indemnity applies, as such claims are incurred. This Section shall survive any assignment, termination or expiration of this Order for whatever reason.
11. Designated Products. Airline may designate certain food, beverage or other products that it wishes GCAT to provide on Catered Flights (“Designated Products”). GCAT agrees to use commercially reasonable efforts to provide Designated Products as and when required by Airline. Airline hereby agrees that if Airline is dissatisfied in any way with a Designated Product (in terms of quality or otherwise), Airline will not register complaints with GCAT, but will rather deal directly with GCAT’s supplier of the Designated Product, unless Airline’s dissatisfaction with the Designated Product was caused directly by the gross negligence or willful misconduct of GCAT. In addition, Airline agrees that GCAT will not be responsible in any way for the Designated Products or the performance of suppliers of Designated Products, including (a) for any losses, flight delays or other inconveniences to Airline caused or exacerbated by such suppliers, or (b) to the extent GCAT’s performance of the Services is hindered or delayed due to the use of the Designated Products or the supply of such products. Notwithstanding the foregoing, GCAT will not agree to provide any Designated Product if the terms and conditions related thereto are not reasonably satisfactory to GCAT, unless Airline makes other accommodations with respect thereto that are reasonably acceptable to GCAT. Absent such accommodations that are reasonably acceptable to GCAT, GCAT shall have the right to substitute equivalent products in lieu of Designated Products, such equivalency to be determined by GCAT in its sole discretion. In the event of changes to Designated Products, GCAT shall be entitled to burn-off remaining quantities of Designated Products within reasonable limits.
12. Insurance. GCAT shall at its own expense subscribe and maintain during the duration of this Order aviation third party legal liability insurance in accordance with usual industry standards to support their liabilities and obligations assumed under, or arising out of, and in connection with, this Order. Such insurance shall be in-line with current industry standards. The Airline agree to take out and maintain liability insurance at their own expense and in accordance with usual industry standards to support their liabilities and obligations assumed under, or arising out of, and in connection with, this Order. Such insurance shall be in-line with current industry standards. Each Party’s uninsured liability to the other Party under this Order shall not exceed 10% of the annual aggregate of the annual turnover of the Agreement, and, in case the annual turnover under this Order exceeds United States Dollar ("USD”) twenty (20) million, the liability is limited to USD two (2) million. Neither Party shall be entitled to make claim for an amount equal to or less than USD ten (10) thousand. Any limitation of liability under this Order applies to any claim, regardless of whether such liability arises from a claim based upon contract, tort or otherwise.
13. Termination; Suspension. A party shall have the right to terminate this Order: (a) If the other party fails to perform or comply with any of its material covenants or obligations contained in this Order, and such failure is not remedied and cured in all material respects within 30 days after the date written notice of such failure is delivered to the non-compliant party; provided that in the event of a payment default, the cure period for Airline shall be 10 days; (b) A Force Majeure Event (as defined below) affecting either party prevents it from performing hereunder substantially in accordance with the terms of this Order and such event is not remedied in all material respects within 90 days after the date of its occurrence; or (c)(i) The other party files a voluntary petition seeking liquidation, reorganization, arrangement or readjustment, in any form, of its debts under any applicable bankruptcy or insolvency law or (ii) files an answer to an involuntary petition under any such law in which it consents to or acquiesces to the relief sought in such involuntary petition or (iii) makes any assignment for the benefit of its creditors or (iv) admits in a writing signed by an authorized officer its inability to pay its debts as they mature or (v) an involuntary petition under any bankruptcy or insolvency law is filed against it seeking an application for the appointment of a receiver for its assets, or seeking liquidation, reorganization, arrangement or readjustment of its debts under any bankruptcy or insolvency law, if such petition has not been vacated, set aside or stayed within 30 days after its filing; (d) with sixty (60) days prior written notice for a particular Location if either party is ceasing operations in that Location. Notwithstanding anything to the contrary herein, GCAT may, without liability, upon 7 days prior written notice, suspend the performance and provision of the Services in the event Airline fails to pay any amounts hereunder in full on the date when due. The right of suspension set forth in this paragraph is in addition to, and is not exclusive of, any other rights and remedies that GCAT may have under this Order, at law or in equity, including, without limitation, any right to seek damages or to terminate this Order. In the event that this Order or part thereof is terminated by notice or otherwise, such termination shall be without prejudice to the accrued rights and liabilities of either party prior to such termination.
14. Force Majeure. No party will be liable for delays or failure in performance caused by events beyond its reasonable control (including, without limitation, acts of God, flood, fire, typhoon, war, terrorism, acts of government, strikes, labor actions, pandemic, epidemic, quarantine restriction, work slow-downs or stoppages, lock-outs or the failure of the internet) that cannot be remedied by reasonable efforts on the part of the affected party (each a “Force Majeure Event”). The obligations of the parties to make payments when due under the terms of this Order will not be excused by the occurrence of a Force Majeure Event. A party claiming a Force Majeure Event will give timely written notice of such claim to the other party and will use its reasonable efforts to remedy the events giving rise to such claim, including making payment of amounts due in accordance with this Order in a manner permitted by applicable federal, state, local and foreign laws and ordinances and all lawful orders, directives, rules and regulations thereunder.
15. Governing Law; Submission to Jurisdiction; Venue. This Order and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the law of Singapore , without regard to any choice of law principle that could result in the application of the laws of another jurisdiction. Any legal action or proceeding against any party with respect to this Order may be brought in the courts of Singapore, and, by execution and delivery of this Order, each party hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.
16. Miscellaneous. Notices: All notices under this Order must be in writing and will be deemed received by a party when (a) delivered to the appropriate address by hand or by recognized international express courier service, (b) sent to the addressee by facsimile (receipt electronically confirmed) or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the address and marked to the attention of the individual (by name or title) designated below the party’s signature on this Order with a copy sent to the attention of “Legal Dept.” (or to such other address or individual as a party may designate by written notice to the other party). Severability: If a court of competent jurisdiction holds any provision of this Order invalid or unenforceable, the other provisions of this Order will remain in full force and effect. Any provision of this Order held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. No Third Party Rights: Nothing expressed or referred to in this Order will be construed to give any person, other than the parties to this Order, any legal or equitable right, remedy or claim under or with respect to this Order or any provision of this Order. Subcontracting: At all times GCAT shall have the right to subcontract or outsource any part or all of the Services to one or more of its affiliates or third parties without prior approval of Airline, provided that GCAT shall at all times remain fully liable for all performance hereunder. Interpretation: If there is any conflict or inconsistency between this Order and any of the exhibits, schedules, appendices, attachments or any other document referred to or otherwise incorporated into this Order, this Order shall control. The application of all or any of the provisions of the United Nations Convention on Contracts for International Sale of Goods (Vienna Sales Convention) to this Order, or the incorporation of such provisions into this Order, at any time is expressly excluded in all respects. Sovereignty: Airline hereby waives any immunity on the ground of sovereignty, the act-of-state doctrine or the like from the jurisdiction of any court from any action, suit or proceeding, or the service of process in connection therewith, arising under this Order. Cooperation: Each party shall act in good faith and be just and faithful to, and cooperate with, the other party in relation to all matters concerning the provision of the Services and this Order, do or cause to be done all acts necessary or desirable for the implementation of this Order and not unreasonably withhold or delay any action, approval, direction, determination or decision required under this Order. Each party shall use reasonable efforts to do all things necessary or desirable to give full effect to this Order and refrain from doing anything that might hinder performance of this Order. Assignment: This Order may not be transferred or assigned by Airline, whether voluntarily or by operation of law, without the prior written consent of GCAT, and any assignment in violation thereof is void. This Order shall inure to the benefit of and be binding upon all permitted successors and assigns. Non-Solicitation: Airline shall not hire any employee of GCAT or any of its affiliates who have had any involvement with the Services during the prior one year period to serve in any position or capacity that involves responsibilities or duties which are in any manner similar or related to that employee’s prior responsibilities or duties. Confidentiality: The pricing information and terms contained in this Order are sensitive, confidential and shall not be disclosed by Airline to any third party without the express written consent of GCAT, unless such disclosure is required by valid legal process or is otherwise required by law. Integration: This Order, together with any exhibits, schedules, appendices, attachments or any other document referred to or otherwise incorporated into this Order, and including all amendments and modifications to any of the foregoing, supersedes all prior agreements among the parties (whether oral or written) with respect to their subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to their subject matter. Independent Contractor: GCAT will be acting as an independent contractor to Airline in connection with this Order. This Order is not intended to establish any partnership, joint venture, employment or franchise relationship between or among Airline, GCAT or their respective subsidiaries and affiliates. No party will have the power to bind or incur obligations on behalf of any other party without such party’s prior written consent. Modification and Waiver: This Order may not be amended, supplemented or otherwise modified except in a written document executed by the parties. No failure or delay by any party in exercising any right or remedy in connection with this Order will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.