APEX AVIATION, INC.
TERMS AND CONDITIONS
1. Representation of Authority.
The aircraft owner and/or authorized agent of the owner (collectively, “Owner”) represents to Apex Aviation, Inc. (“Apex”) that it is authorized to retain maintenance services for the aircraft and the Owner is delivering the aircraft or has provided access to the aircraft to obtain maintenance services.
2. Scope of Services, Rates.
(a) Apex will perform the maintenance services requested or otherwise authorized by Owner and accepted by Apex (the “Services”). Apex will have the right to subcontract to other qualified repair or overhaul facilities the performance of part or all of the Services.
(b) The rates and charges for labor performed by Apex on aircraft on weekdays and non-holidays, are Apex’s published standard labor rates, which are posted at the Apex facility servicing the aircraft.
(c) The rates and charges for labor performed by Apex on aircraft on weekends consist of a $150 call-out fee plus time and a half.
(d) The rates and charges for labor performed by Apex on aircraft on holidays consist of a $150 call-out fee plus double time.
3. Delivery: Unavoidable Delays.
(a) Unless otherwise provided in the Work Order Authorization or as otherwise agreed, the execution of the Work Order Authorization shall evidence the delivery of the Aircraft by Owner to Apex for the performance of the Services (the “Delivery”).
(b) Upon delivery of the Aircraft to Apex, Owner shall provide to Apex complete and accurate information, specifications and documents relevant to the Aircraft as requested by Apex, including, without limitation, log books and maintenance records.
(c) Apex shall not be liable for delay or failure in the performance, in whole or part, of the Services if such failure is caused by public enemy fire, flood, strikes, or other labor disputes (whether at Apex’s facility or elsewhere), riots, insurrection, war, governmental orders or actions, failure of transportation, delays occasioned by suppliers or subcontractors, or any other cause beyond the control of Apex not specifically mentioned in these Terms and Conditions.
4. Payment: Redelivery: Interest.
(a) Owner shall make full payment to Apex in United States Dollars, of all amounts owing by Owner as a result of the performance of the Services.
(b) Unless Apex and Owner expressly agree otherwise in the Work Order Authorization or as otherwise agreed in writing, all amounts owing by Owner to Apex shall be due and payable upon the completion of the Services and a condition of the redelivery of the Aircraft to Owner.
(c) Apex shall have the option of allowing Owner to take such redelivery prior to Owner making full payment for the Services; provided, however, that the Owner’s right to delay making full payment until after redelivery is conditioned upon (i) Apex expressly agreeing in the Work Order Authorization to allow such delayed payment and (ii) the agreement that under no circumstances shall full payment be delayed beyond (30) days after the redelivery of the Aircraft, and (iii) the agreement that Apex may file a lien claim against the Aircraft to ensure the fulfillment of the Owner’s payment obligations.
(d) Owner shall be obligated to pay interest on all amounts not paid when due at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum).
5. Limited Exclusive Warranty and Waiver of Damages.
(a) Apex warrants that the Services performed pursuant to this Agreement shall be free of defects in workmanship for a period of sixty (60) days after the redelivery of the Aircraft by Apex to Owner.
(b) The foregoing warranty (the “Limited Warranty”) is confined only to the workmanship of Apex, and does not extend to a warranty of the quality or fitness of any parts, components or equipment manufactured by any entity other than Apex, in regard to such parts, its sole and exclusive remedy and right to recovery shall be against the subject manufacturer or supplier.
(c) The Limited Warranty provided above by Apex is conditioned upon (i) Owner providing to Apex (at the address first set for the forth above, attention: Manager) written notice specifying the purported defect in workmanship; and (ii) Owner, within thirty (30) days after providing such written notice Apex, delivering the Aircraft (or the pertinent portion thereof) to Apex for correction of the purported defect in workmanship.
(d) Warranty claims shall be excluded when the Aircraft has been exposed or subjected to any of the following (i) any maintenance, repair, installation, storage, operation, or the use which is improper or otherwise not in compliance with the manufacturer’s instructions or applicable law or regulations; (ii) any alteration, modification or repair by anyone other than Apex without Apex’s prior written consent, which shall not be unreasonably withheld; or (iii) any accident, foreign object damage, misuse, improper storage, neglect, or negligence after the redelivery of the Aircraft to Owner.
(c) THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF APEX AND REMEDIES OF OWNER SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN SUBSTITUTION FOR, OTHER WARRANTIES, OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS AND REMEDIES, EXPRESS OR IMPLIED WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT IN THE AIRCRAFT, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS AND (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE PERFORMANCE OR COURSE OF DEALING OR USAGE OF TRADE.
6. Controlling Law: Jurisdiction: Attorney’s Fees.
(a) The rights of the parties pursuant to the Work Order Authorization shall be governed by the laws of the State of Nevada.
Any suit, action or proceeding brought by Apex or by Owner arising out of or relating to the Services shall be brought exclusively in either the Nevada federal or state courts located in Las Vegas, Nevada, and the prevailing party will be entitled to an award of its reasonable attorney’s fees and expenses incurred in connection therewith.