Howarth Aviation - Terms & Conditions

These Terms are incorporated by reference into every engagement of, and all services rendered by, Howarth Aviation (Pty) Ltd (Reg. No. 2024/596497/07).

These Standard Terms and Conditions (the "Terms") apply to every engagement of Howarth Aviation (Pty) Ltd, whether as broker or introducer for a buyer, seller, lessor or lessee, or as adviser or consultant on any aviation matter, and to any information, document or service supplied by us. They apply whether or not an Engagement Letter has been issued or signed: by instructing us, requesting or accepting any Services, or receiving or using any Information from us, the Client agrees to these Terms and they govern the relationship from the first provision of Services.

1. Definitions

1.1"Howarth Aviation", "we", "us" means Howarth Aviation (Pty) Ltd, registration number 2024/596497/07, its directors, employees, agents and sub-contractors.

1.2"Client" means the person or entity that engages or instructs us, whether under an Engagement Letter or otherwise.

1.3"Engagement Letter" means any letter, mandate, proposal, quotation or e-mail confirming an engagement. An Engagement Letter is not required for these Terms to apply.

1.4"Brokerage Services" means introducing, marketing, sourcing, negotiating and coordinating the sale, purchase, lease or other disposal or acquisition of an Aircraft.

1.5"Advisory Services" means any advice, opinion, review, report, estimate, consultancy or project-coordination work we provide, including maintenance and technical advisory, maintenance-status and records reviews, pre-purchase coordination, engine, propeller and component transaction advisory, fleet or acquisition planning, import/export and registration process guidance, indicative valuations or market opinions, cost estimates and budgets, and the production of specifications, checklists or other documents.

1.6"Services" means Brokerage Services and Advisory Services together.

1.7"Aircraft" means any aircraft, engine, propeller, component or part that is the subject of the Services.

1.8"Transaction" means any sale, purchase, lease, exchange, overhaul, repair or other dealing in an Aircraft.

1.9"Information" means every specification, listing, photograph, logbook extract, status report, valuation, opinion, cost estimate, checklist, market commentary, report or other data supplied or passed on by us in any form.

1.10"Counterparty" means the other party to a Transaction, being the seller, buyer, lessor or lessee opposite the Client, and "Recipient" means any person, whether or not a Client, who receives Information or the benefit of Services from us.

1.11"Closing" means the completion of a Transaction by transfer of title, delivery under lease, or return to service, whichever first occurs.

2. Application of these Terms

2.1These Terms apply to all Services we provide, whether or not an Engagement Letter, mandate, quotation or other written agreement has been issued or signed. Our providing Services, and the Client's requesting, accepting, receiving or using them (including any Information, introduction, advice, opinion, estimate or document), is sufficient for these Terms to bind the Client.

2.2Where an Engagement Letter is issued, it records the specific terms of that engagement and incorporates these Terms. Where none is issued, the Services, fees and scope are as agreed in correspondence or, failing agreement, as reasonably determined by us with reference to our then-current rates, and these Terms alone govern.

2.3These Terms prevail over any terms the Client proposes or purports to impose, whether in a purchase order, e-mail, engagement document or otherwise, unless we have expressly agreed to those terms in writing signed by a director.

2.4Continuing to instruct us or to accept Services after these Terms have been made available to the Client, including by publication at www.howarthaviation.com/terms or by reference in our correspondence, e-mail signatures, quotations or invoices, constitutes acceptance of them.

3. Our capacity

3.1In providing Brokerage Services we act solely as an independent broker and introducer. We are not a party to any Transaction, we do not act as principal, and we do not hold title to, possess, operate, maintain, insure or certify any Aircraft.

3.2In providing Advisory Services we act as an independent consultant offering our experience and opinion. We are not an approved maintenance organisation, continuing-airworthiness management organisation, design organisation, licensed aircraft maintenance engineer, surveyor, appraiser, attorney, accountant, tax adviser, customs broker, insurance intermediary or financial services provider, and we do not certify, release, sign off or approve any Aircraft, maintenance, repair, modification, record or document for airworthiness or regulatory purposes.

3.3Unless the Engagement Letter states otherwise, we act for the Client only. We may, however, act for a Counterparty in the same Transaction (a "Dual Mandate"), and may receive a fee or commission from a Counterparty, maintenance organisation, supplier or other third party, provided this is disclosed to the Client in writing, which may be by e-mail, by statement on a specification or listing, or by reference in correspondence.

3.4Where we act under a Dual Mandate: (a) each party, by continuing to deal with us after disclosure, consents to our acting for both; (b) we act as an honest intermediary between the parties and do not owe either party a duty to obtain the best price or terms, to advise on the merits of the Transaction, or to prefer that party's interests over the other's; (c) we shall not disclose to one party the other's reservation price, negotiating position or information marked or evidently confidential, but we may pass on all other Information; (d) a fee payable by one party does not reduce the fee payable by the other, and neither party may object to, or claim any part of, the fee paid by the other; and (e) we are not responsible to either party for the acts, omissions, statements, non-performance, default or insolvency of the other.

3.5We do not verify and do not warrant the identity, authority, title, solvency, creditworthiness, good standing, sanctions status or performance of any Counterparty. Each party must satisfy itself on these matters, including by conducting its own know-your-customer, title and lien searches. Any dispute arising between the Client and a Counterparty is between them alone and we shall not be joined to, or liable in respect of, it.

3.6We have no authority to bind the Client or any counterparty to any Transaction, to give warranties on their behalf, or to receive or hold purchase monies. Deposits and purchase prices are to be paid to an independent escrow agent or directly between the parties.

3.7Nothing supplied by us constitutes legal, tax, customs, regulatory, airworthiness, technical, valuation, insurance, investment or financial advice on which the Client may rely without independent verification, and the Client must obtain such advice from appropriately qualified and licensed professionals.

4. Information and representations

4.1All Information is supplied by, or derived from, the seller, owner, operator, maintenance organisation, manufacturer, registry or other third parties. We pass it on in good faith but do not verify it and make no representation or warranty, express or implied, as to its accuracy, completeness, currency or fitness for any purpose.

4.2Specifications, times, cycles, maintenance status, airworthiness directive and service bulletin compliance, damage history, component life, and photographs are indicative only and subject to the Client's verification by physical inspection and records review before any commitment.

4.3Cost estimates, landed-cost models, budgets, timelines and market or value opinions prepared by us are illustrative planning tools based on assumptions stated in them and on third-party quotations or market indications. Actual costs, exchange rates, taxes, duties, fees, inspection findings and lead times will differ, and we accept no responsibility for any variance.

4.4Any statement by us that an Aircraft appears to be suitable, eligible for registration in a jurisdiction, in a particular condition, or likely to pass an inspection is an opinion offered without responsibility and is not a warranty.

4.5These Terms, and in particular this clause 4 and clauses 3, 6, 7 and 8, apply for the benefit of Howarth Aviation against every Recipient, whether or not that Recipient is a Client or has signed anything. A Recipient who receives, retains or uses Information, or who deals with us or through us in a Transaction, does so on these Terms and acknowledges that Information is passed on without verification, that we act as introducer or intermediary only, and that the Recipient relies exclusively on its own inspection, enquiry and advisers.

5. Advisory Services

5.1Advisory Services are provided on the basis of the Information and instructions made available to us at the time, our review of records and documents as presented, and, where applicable, visual observation only. We do not perform disassembly, testing, non-destructive inspection, functional checks or any physical maintenance, and our observations are not an inspection for airworthiness or certification purposes.

5.2Our advice and opinions reflect our professional judgement and experience at the date given. They are not guarantees of outcome, condition, cost, timing, regulatory acceptance or value, and may be superseded by subsequent information, inspection findings, regulatory decisions or market changes.

5.3Where we coordinate, recommend or liaise with maintenance organisations, engine shops, inspectors, ferry pilots, forwarders, escrow agents, attorneys or other providers, the Client contracts directly with those providers, remains responsible for their selection, instruction and payment, and acknowledges that their work, findings, releases and certifications are theirs alone. We do not supervise or warrant their performance.

5.4Any indicative valuation or market opinion is not a certified appraisal, is provided for the Client's internal planning only, and may not be relied upon by lenders, insurers, courts, tax authorities or any third party without our written consent.

5.5Reports, specifications, checklists and other deliverables are prepared for the Client's use for the purpose stated. They may not be published, distributed to third parties or relied upon for any other purpose without our written consent, and we accept no responsibility to any third party who receives them.

5.6All decisions arising from Advisory Services, including whether to proceed with any Transaction, maintenance, overhaul, modification, import, registration or expenditure, are the Client's alone.

6. Client's own assessment and responsibilities

6.1The Client is solely responsible for its decision to enter into any Transaction and for assessing the Aircraft's condition, airworthiness, maintenance status, records, title, value, price, specification, operating costs, regulatory eligibility and suitability for the Client's intended purpose.

6.2The Client shall rely exclusively on its own inspection, its own independently appointed pre-purchase inspector or maintenance organisation, and its own legal, tax, customs, technical, insurance and financial advisers, and not on Howarth Aviation or any Information.

6.3The Client is responsible for the selection, engagement, instruction and payment of all third parties, notwithstanding that we may have recommended, introduced or coordinated them. Such third parties are not our agents or sub-contractors and we are not responsible for their acts, omissions, delays, quality of work, solvency or charges.

6.4The Client shall give us timely, accurate and complete instructions and information, and acknowledges that our Services depend on it. We are not responsible for consequences of incomplete, inaccurate or late information or instructions.

6.5The Client shall comply with all laws applicable to it and the Transaction, including exchange control, tax, customs, export control, sanctions and anti-money-laundering requirements, and shall provide us with such identification and source-of-funds information as we reasonably request.

6.6The Client warrants that it has authority to engage us and to enter into any Transaction, and that the funds used are lawfully obtained.

7. Exclusion of liability

7.1To the fullest extent permitted by law, we exclude all liability to the Client, to every Recipient, and to any person claiming through either of them, whether in contract, delict (tort), negligence, misrepresentation, breach of statutory duty or otherwise, for any loss, damage, cost or expense arising out of or in connection with the Services, any Information, any Aircraft or any Transaction, including without limitation: (a) any defect in, or the condition, airworthiness, value, history or performance of, any Aircraft; (b) any inaccuracy in or omission from Information or any advice, opinion, estimate or report; (c) any failure of a Transaction to complete or any delay; (d) any act, omission, statement, default or insolvency of a Counterparty, maintenance organisation or other third party, including where we act for that Counterparty under a Dual Mandate; (e) any tax, duty, VAT, penalty, regulatory refusal or consequence; (f) any accident, incident, grounding or loss of use of an Aircraft; and (g) any loss of profit, revenue, use, business or opportunity, or any indirect, special or consequential loss.

7.2If, notwithstanding clause 7.1, we are found liable to the Client on any basis, our total aggregate liability in respect of an engagement and all related Transactions shall not exceed the fees actually received by us from the Client for that engagement.

7.3Nothing in these Terms excludes or limits liability for fraud or for anything that cannot lawfully be excluded or limited. Where the Consumer Protection Act 68 of 2008 applies to the Client, these Terms apply only to the extent that Act permits.

7.4No claim may be brought against us more than twelve (12) months after the event giving rise to it.

8. Indemnity

8.1The Client indemnifies and holds us harmless against all claims, losses, damages, costs and expenses (including legal costs on the attorney-and-own-client scale) brought against or incurred by us by reason of the Client's breach of the Engagement Letter or these Terms, any Transaction, the Client's use, maintenance or operation of any Aircraft, the Client's use of or reliance on any Information or Advisory Service, or any claim by a counterparty or third party arising from the Client's acts or omissions.

9. Fees

9.1Brokerage fees are set out in the Engagement Letter, are earned on introduction, and are payable on Closing unless otherwise stated. Where a Transaction closes on any aircraft introduced by us, with the Client or any person connected with the Client, during the engagement or within twelve (12) months after its end, the fee remains payable in full whether or not we took part in the final negotiation.

9.2Advisory fees are charged on the basis stated in the Engagement Letter (fixed fee, daily or hourly rate, or retainer) and, unless otherwise stated, are invoiced monthly in arrears or on delivery of the relevant report, and are payable regardless of whether any Transaction proceeds.

9.3Fees are exclusive of VAT and of disbursements. Approved travel and third-party costs incurred on the Client's instructions are recharged at cost and are payable on demand. Overdue amounts bear interest at the South African prime overdraft rate plus 2% per annum from due date to payment.

9.4The Client shall not, during the engagement and for twelve (12) months thereafter, circumvent us by dealing directly, or through any other broker or intermediary, with any seller, buyer, aircraft or opportunity introduced by us, without paying the fee that would otherwise be due.

9.5The Client may not set off any amount against our fees. We may suspend Services while any invoice is overdue.

10. Confidentiality, data and intellectual property

10.1Each party shall keep confidential the terms of the engagement and all non-public information received from the other, save for disclosure to professional advisers, financiers, insurers and Counterparties on a need-to-know basis, or as required by law. In a Dual Mandate, clause 3.4(c) governs what we may pass between the parties.

10.2We process personal information in accordance with the Protection of Personal Information Act 4 of 2013 and may share Client identification with counterparties, escrow agents, registries and service providers where necessary for the Services.

10.3Copyright and all other intellectual property in specifications, reports, models, templates and other documents we produce remain ours. The Client has a non-exclusive licence to use them for the purpose of the engagement.

11. Term and termination

11.1Either party may terminate an engagement on fourteen (14) days' written notice. Termination does not affect fees earned or accruing under clause 9, disbursements incurred, or clauses 2 to 10, 12 and 13, which survive.

11.2We may suspend or terminate an engagement immediately if the Client fails to provide identification or source-of-funds information, if we reasonably suspect any unlawful purpose or sanctions exposure, or if the Client is in material breach.

12. General

12.1These Terms, together with any Engagement Letter, constitute the entire agreement between the parties regarding the Services and supersede all prior representations and discussions. If an Engagement Letter and these Terms conflict, the Engagement Letter prevails for that engagement only.

12.2We may amend these Terms from time to time by publishing the amended Terms at www.howarthaviation.com/terms. The Terms as published on the date of the Engagement Letter or, where there is none, on the date the Services were first requested or provided, apply to that engagement.

12.3No variation is binding unless in writing and signed by both parties. No indulgence or delay by us operates as a waiver. The Client may not assign its rights without our written consent. We may sub-contract administrative tasks but remain responsible for our own obligations.

12.4If any provision is held unenforceable, it shall be severed and the remainder shall continue in force. Notices may be given by e-mail to the addresses in the Engagement Letter or, where there is none, to the addresses last used between the parties, and are deemed received on the next business day. Engagement Letters may be signed in counterparts and electronically.

13. Governing law and disputes

13.1These Terms and every engagement are governed by the laws of the Republic of South Africa.

13.2Any dispute shall first be referred to good-faith negotiation between principals for fourteen (14) days, failing which it shall be finally resolved by arbitration in Johannesburg under the rules of the Arbitration Foundation of Southern Africa (AFSA) before a single arbitrator, in English. Nothing prevents either party from seeking urgent interim relief or recovering undisputed fees in the Gauteng Division of the High Court, to whose jurisdiction the parties consent.

13.3The Client chooses the address in the Engagement Letter or, where there is none, the address last notified to us in correspondence, and we choose our registered office, as domicilium citandi et executandi.