Terms & Conditions

1. DEFINITIONS

1.1 In this Agreement unless the context otherwise requires the following expressions shall have the following respective meaning:-

"Agreement" this Passenger Aircraft Charter Agency Agreement including the Schedule

"Aircraft" the aircraft specified in the Schedule for the time being operated in connection with any Flight

"Carrier" the operator of the Aircraft as specified in the Schedule

"Charter Price" the amount set out in the Schedule

"Flight" the flight described in the Schedule

"Schedule" the schedule to this Agreement

1.2 Words importing one gender shall be treated as importing the other, words importing persons shall be treated as importing bodies corporate, corporations, unincorporated associations and partners and vice versa, words importing the singular shall be treated as importing the plural and vice versa and words importing the whole shall be treated as including a reference to any part thereof.

1.3 References to any statute, statutory provision, any rule made by a local authority and having the effect of law or any EC Directive shall be construed as references to such statute, statutory provision, rule or EC Directive as respectively amended, extended, consolidated, replaced or re-enacted or as their operation is modified by any other statute, statutory provision, rule or EC Directive (whether before, on or after the date of this Agreement) and shall include any provisions of which they are re-enactments (whether with or without modification) and shall include subordinate legislation made under the relevant statute, statutory provision, rule or EC Directive

1.4 Clause headings do not form part of this Agreement and shall not be taken into account in its construction or interpretation

1.5 Any phrase introduced by the terms "including", "include", "in particular", "inter alia" or any similar expression shall be construed as illustrative and shall not limit the sense of the word preceding these terms.

1.6 References to any act, statutory instrument, regulation, bye-law or other requirement of English law and to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include that which most nearly approximates in that jurisdiction to the English legal term.

2. CHARTER PRICE AND PAYMENT

2.1 The Charterer shall pay to the Agent the Charter Price at the time, in the currency, in the amounts and to the address specified in accordance with the provisions set out therefor in the Schedule.

2.2 If the Charter Price specified in the Schedule is increased by the Carrier, then the Charterer shall pay to the Agent on demand such amount as shall fully compensate the Agent for such increase.

2.3 Time of payment of the Charter Price shall be of the essence of this Agreement.

2.4 No set-off or counterclaim (whether arising in respect of this Agreement or any other carriage) shall entitle the Charterer to withhold payment of any sums whatsoever payable to the Agent under or by reason of this Agreement. In the event that the Charterer is required to withhold any part of any payment payable by the Charterer to the Agent under this Agreement or to make any deduction from such payment, the Charterer shall pay such additional amount as may be necessary so that, after making such withholding or deduction, the Agent shall receive from the Charterer the full amount of such payment.

3. TRAFFIC DOCUMENTS

The Charterer shall, as soon as possible after the making of this Agreement and, in any event, in sufficient time to be completed for the issue to passengers of the relevant documents, give to the Agent all necessary information and assistance to enable the Agent to pass the same on to the Carrier to enable the Carrier to complete all relevant documents (whose obligation it is supply or procure the supply of passenger tickets, baggage checks, air waybills and all other necessary documents relating to the carriage to be undertaken).

4. FLIGHT TIMES, LOADING AND EMBARKATION

4.1 The Charterer shall be solely responsible for ensuring that passengers and their baggage arrive at the specified check-in point at the departure airport in sufficient time to be carried on any Flight. In the event that any passenger of the Charterer fails to arrive in sufficient time to be carried on the Flight, the Agent shall be under no liability whatsoever to the Charterer nor to such passenger and the Agent shall be under no obligation hereunder to make any alternative arrangements for any such passenger.

4.2 In the event that any passenger of the Charterer is refused entry at any destination airport, the Charterer shall indemnify and keep indemnified the Agent, its officers, employees, servants and agents against any and all cost or expense whatsoever incurred by the Agent in respect thereof (including but not limited to charges, fee, penalties, imposts or other expenses levied upon the Agent by any immigration authority) or of any arrangements made by the Agent to return such passengers to the country from which such passenger was originally carried.

5. CARRIER DEFAULT

5.1 In the event that:

5.1.1 any Aircraft required for the operation of any Flight is detained (whether lawfully or not) by any third party (including but not limited to detention by any aviation or airport authority, overflight authority or by way of lien or requisition for hire or otherwise); or

5.1.2 if the Carrier has an administrator, receiver, administrative receiver, trustee or other like person appointed over a part or all of its assets or business and as a result the Carrier is unable to perform the Flights at the same cost to the Carrier; or

5.1.3 if the Carrier becomes insolvent, enters into voluntary liquidation or is compulsorily wound up

then the Agent shall use its reasonable endeavours to find an alternative carrier to operate such Flights as may be affected by the occurrence of any of the above events (the "Affected Flight"), at the same cost to the Charterer (provided always that the Agent has not previously forwarded the monies payable to the Carrier, to the Carrier.

5.2 In the event that the Agent is unable so to do, the Agent shall (subject to the provisions of Clause 10 and provided that the Charterer has duly fulfilled its obligations hereunder) refund to the Charterer such part of the [Charter Price] previously paid by the Charterer to the Agent as relates to the Affected Flight provided always that the Agent has not previously forwarded such amounts to the Carrier.

5.3 In the event that the Agent is able to arrange an alternative carrier to operate the Affected Flight, but only at an additional cost, the Agent shall notify the Charterer as soon as reasonably practicable and the Charterer shall have the option to charter the aircraft operated by the alternative carrier provided that, if it so elects, it shall pay to the Agent such additional costs upon demand. If the Charterer does not so elect, the Agent shall, (subject to the provisions of Clause 10 hereof and provided that the Charterer has duly fulfilled its obligations hereunder), refund to the Charterer such part of the [Charter Price] previously paid by the Charterer to the Agent as relates to the Affected Flight (provided always that the Agent has not previously forwarded such amounts to the Carrier) and the Agent shall thereupon be under no further obligation to the Charterer in relation to the Affected Flight.

6 OBLIGATIONS OF THE CHARTERER

6.1 The Charterer hereby authorises the Agent, as its agent, to sign the contract with the Carrier for and on behalf of the Charterer.

6.2 The Charterer shall comply with all the requirements of the Agent in relation to the performance of all of the Charterer's obligations as set out in this Agreement.

6.3 The Charterer shall hold harmless and indemnify the Agent against all claims, demands, liabilities, actions, proceedings and costs of any kind whatsoever arising from any default on the part of the Charterer or any passenger of the Charterer in complying with any of the provisions of this Agreement.

6.4 The Charterer shall comply in all respects with the conditions of all permits, licences and authorities granted for the Flights and will procure such compliance on the part of all its passengers.

6.5 The Charterer shall be responsible for the issue and delivery of all necessary passenger tickets, baggage checks and other necessary documents to all passengers.

6.6 The Charterer shall comply and shall procure that all its passengers shall comply with all applicable customs, police, public health, immigration and other lawful regulation of any state to/from or over which the Aircraft is or may be flown and it is the sole responsibility of the Charterer for ensuring that all passengers obtain all relevant vaccinations and appropriate travel or other relevant insurance.

6.7 The indemnities contained in this Clause 7 shall survive the termination of this Agreement.

7. EXCLUSION OF LIABILITY/INDEMNITY

7.1 Under no circumstances shall the Agent be under any liability for any loss, damage, cost or expense whatsoever (including loss of profits or any indirect or consequential loss) occasioned by any breach of contract, negligence or any breach of duty of the Agent whatsoever and howsoever such loss, damage, cost or expense may have been caused. Noting in this Agreement excludes or limits the liability of the Agent for death or personal injury resulting from the Agent’s negligence. Subject as aforesaid and without prejudice to the generality thereof, the Agents’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to [% [equivalent to commission] of the Charter Price].

7.2 Subject to and without prejudice to Clause 7.1, the Agent shall not be liable unless the Charterer has given the Agent notice in writing of a claim summarising the nature of the claim as far as is known to the Charterer and the amount claimed within the period of [2 years] from the date of this Agreement.

7.3 without prejudice to Clause 7.1, the Agent shall be under no liability to the Charterer or to any passenger of the Charterer in respect of any variation to or cancellation of any Flight or the non-availability of any seats which results from the acts or omissions of the Carrier, or for any failure by the Carrier to perform any Flight and the Charterer hereby acknowledges to the Agent that in any such event the Charterer shall only have recourse against the Carrier.

7.4 Without prejudice to Clause 7.1, the Agent shall be under no liability to the Charterer for any failure by it or by the Carrier to perform their respective obligations under this Agreement or the contract with the Carrier arising from force majeure, labour disputes, strikes or lock-outs or any other cause beyond the control of the Agent including accidents to or failure of the Aircraft, its engines, or any other part thereof or any machinery or apparatus used in connection therewith.

7.5 The Charterer shall indemnify the Agent against any claim by any passenger of the Charterer arising out of any such variation, cancellation, non-availability or failure to perform provided always that if the Agent shall receive any refund from the Carrier in respect of any such varied cancelled or unperformed Flights or unavailable seats which have already been paid for by the Charterer, the Agent shall (subject to the provisions of Clause 10 and provided always that the Charterer shall have duly fulfilled its obligations under this Agreement), repay such refund to the Charterer.

7.6 The Charterer shall indemnify the Agent against any loss, damage, liabilities, costs or expenses of whatsoever nature caused to be suffered or incurred by the Agent and its officers, employees agents or subcontractors arising out of any act or omission of the Charterer or its officers, employees or agents whether arising in contract or tort (including negligence) or otherwise.

7.7 Carriage performed by the Carrier shall be subject to the conditions of carriage contained or referred to in the traffic documents of the Carrier including its general conditions of carriage.

7.8 The Charterer hereby acknowledges to the Agent that it recognises that the Agent acts only as agent for the Charterer and that the Agent is not in any way responsible for the acts, omissions or defaults of the Carrier or the failure of the Carrier to perform its obligations contemplated under the contract with the Carrier and the Charterer hereby agrees to indemnify the Agent against any and all liabilities, claims, demands, suits, judgments, damages and losses, including reasonable expenses, costs and legal fees in connection therewith or incidental thereto arising directly or indirectly out of any failure by the Carrier to comply with its obligations contemplated under the contract with the Carrier.

7.9 The indemnities contained in this Clause 8 shall survive the termination of this Agreement.

8. TERMINATION

This Agreement may be terminated immediately upon notice from the Agent to the Charterer upon the occurrence of any of the events specified below:-

8.1 the Charterer defaults in the payment of any amount payable hereunder on due date; or

8.2 the Charterer is in breach of any of its other obligations hereunder which if capable of remedy has not been remedied within 14 days of receipt of written notice from the Agent requiring remedy of such breach; or

8.3 the Charterer admits in writing its inability to pay or becomes unable to pay it debts; or

8.4 a petition is presented for an administration order to be made up in relation to the Charterer; or

8.5 proceedings are started or any steps are taken for the winding-up or dissolution of the Charterer or for the appointment or a receiver, administrator, trustee, supervisor or similar officer of the Charterer or any or all of its revenues and assets, or the Charterer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1996 (England); or

8.6 an encumbrancer takes possession of any of the Charterer's revenues or assets, or any security created by the Charterer becomes enforceable and the mortgagee or chargee takes steps to enforce the same (including without limitation by appointing a receiver or administrator to any of the assets of the Charterer); or

8.7 the Charterer convenes a meeting or takes any steps for the purpose of making or proposes to enter into or make any arrangement or composition for the benefit of its creditors; or

8.8 a distress or other execution is levied or enforced upon or against any part of the Charterer's property; or

8.9 the Charterer suspends or ceases or threatens to suspend or cease to carry on its business or (expect in the ordinary course of business) it sells, leases, transfers or otherwise disposes of or threatens to dispose of all or any substantial part of its undertakings or assets (whether by a single transaction or by a series), or all or any substantial part of its assets are seized or appropriated by or on behalf of any governmental or other authority or are compulsory acquired; or if any thing analogous to the events referred to in 8.3 to 8.8 above occurs in any jurisdiction in which the Charterer conducts its business; or

8.10 in the opinion of the Agent a material adverse change occurs in the business, assets, condition, operations or prospects of the Charterer; or

8.11 any of the events specified in this Clause 8 occur in relation to any guarantor of the Charterer's obligations under this Agreement.

9. EFFECT OF DEFAULT

9.1 If this Agreement is terminated under Clause 8, then the Charterer shall (without prejudice to any other rights and remedies which the Agent may have) pay forthwith to the Agent all amounts then due and unpaid to it under this Agreement, together with interest thereon (if any) at the rate specified in the Schedule and the Charterer shall indemnify and keep the Agent indemnified against all loss, damage, costs, expense, claim or liability incurred or sustained by the Agent as a result of such termination and the Agent shall be entitled to retain any initial deposit paid by the Charterer pursuant to any provisions therefor set out in the Schedule.

9.2 The Charterer shall indemnify the Agent against any claims by any passenger of the Charterer arising out of the termination of the Agreement.

9.3 The indemnities contained in the Clause 9 shall survive the termination of this Agreement.

10. SET-OFF AND APPLICATION OF MONEYS

The Agent may at any time without notice to the Charterer at its discretion set-off any amounts paid by the Charterer to the Agent hereunder against any amounts then due to the Agent under this Agreement or against any amount due at such time from the Charterer to the Agent.

11 GENERAL

11.1 Any notice given under this Agreement shall be given in writing and may be given by either party by delivering it personally or sending it by pre-paid registered or recorded post or by fax to the other party at the usual or last known address or in the case of the Agent, its registered office only. Any such notice shall be deemed to have been received:

(i) if delivered personally, at the time of delivery;
(ii) in the case of pre-paid recorded or registered post, 24 hours from the date of posting;
(iii) in the case of service outside the United Kingdom, five days from the date of posting; and
(iv) in the case of fax, as soon as written confirmation of transmission is received by the sender

Provided that if deemed receipt occurs after 5pm on any day, the notice shall be deemed to have been received at 9am on the next Business Day. In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed, in the case of the Charterer to the Charterer’s usual or last known address and in case of the Agent, is registered office address (or as otherwise notified by that party hereunder) and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded or registered post, or that the notice was transmitted by fax to the fax number of the relevant party. For the purpose of this Clause, “Business Day” means any day which is not a Saturday or Sunday or a public holiday in the place at or to which the notice is left or sent.

11.2 Time shall be the essence of this Agreement.

11.3 This Agreement sets out the entire agreement and understanding between the parties or any of them in connection with the procurement of the charter of the Aircraft.

11.4 All warranties, conditions and other terms implied by statute or common law, if any, are, to the fullest extent permitted by law, excluded from this Agreement and no party has relied on any warranty or representation of any other party except as expressly stated or referred to in this Agreement.

11.5 No claims shall be made against the Agent in respect of any representation warranty indemnity or otherwise arising out of or in connection with the charter of the aircraft except where such representation, warranty or indemnity is expressly contained or incorporated in this Agreement.

11.6 No variation of this Agreement shall be effective unless made in writing and signed by both parties.

11.7 The Charter Price, payment terms and other commercial terms contained in this Agreement are confidential to the parties and may not be disclosed by the Charterer to third parties without prior approval of the Agent.

11.8 No failure by the Agent to exercise and no delay by the Agent in exercising any right, power of privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law.

11.9 The Charterer shall not be entitled to assign the benefit of this Agreement.

11.10 No term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.

11.11 If any part of this Agreement becomes invalid, illegal or unenforceable, the parties shall in such an event negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, illegal or unenforceable provision which as nearly as possible gives effect to their intentions as expressed in this Agreement. Failure to agree on such a provision within 1 month of commencement of those negotiations shall result in automatic termination of this Agreement. The obligations of the parties under any invalid, illegal or unenforceable provision of the Agreement shall be suspended during such a negotiation.

12. CHOICE OF LAW, SUBMISSION TO JURISDICTION

This Agreement shall be governed by and interpreted in accordance with English law and the parties hereto hereby submit to the non-exclusive jurisdiction of the English courts.