Passenger Air Charter
GENERAL TERMS AND CONDITIONS
(A) This agreement (the “General Terms and Conditions”) sets out the general terms and conditions for the supply of air charter brokerage services and related services by Terry Healy Group Ltd trading as (“Prestige Jets”) to the Charterer.
(B) The provisions of these General Terms and Conditions will be incorporated into each Charter Contract (as defined herein) in their entirety, unless otherwise stated.
(C) In the event of any conflict between the terms of any Charter Contract and the General Terms and Conditions of Prestige Jets, the General Terms and Conditions of Prestige Jets shall prevail.
(D) No variation or amendment to these Terms and Conditions shall become effective unless agreed and varied or amended by Prestige Jets in writing.
(E) Where a person, firm or company enters into the Agreement as agent of the Charterer, such person, firm or company shall be jointly and severally liable with the charterer for the payment of the final agreed charter price.
In these conditions the following expressions shall have the following meaning: –
“Agreement” shall mean these General Terms and Conditions, the Charter Booking, any Special Conditions, Charter Contracts and any annexes and schedules thereto.
“Aircraft” shall mean any aircraft (or its suitable substitute) operated in connection with a Flight organised by Prestige Jets for the Charterer.
“Carrier” shall mean any commercial air carrier or aircraft operator selected to provide the Aircraft for the period of the charter.
“Charterer” shall mean any person, form or body corporate chartering, or offering to charter, any aircraft from the Carrier.
“Charter Booking” shall mean the schedule of specific terms signed by the Charterer and Prestige Jets.
“Charter” shall mean the charter of the Aircraft by the Charterer, as arranged by Prestige Jets and pursuant to the terms herein.
“Charter Price” shall mean the price of the Charter as set out in the Charter Booking.
“Charter Contract” shall mean the contract between the Charterer and the Operator for operation of the Flight Schedule.
“Check-in Time” shall mean the time or times stated in the Charter Booking or Charter Contract or as otherwise notified to the Charterer by Prestige Jets.
“Departure Time” shall mean the departure time of the Flight(s) as set out in the Charter Booking.
“Flight” shall means the flight described in each Charter Booking.
“Flight Schedule” shall mean the place of departure, place of destination and any stopping points, together with any indications of departure and arrival dates and times set out in the Charter Booking.
“Force Majeure” shall mean any event beyond a party’s control including (but not limited to) acts of God, explosions, revolutions, acts of terrorism, hijacking, insurrection, riot, civil commotion, war, national or local emergency, act of government, lock-out, strike, industrial dispute or action, fire, lightning, flooding, embargoes, quarantine, requisition of an aircraft or cargo, acts or omissions of third parties and extreme weather conditions.
“Traffic Documents” shall mean all passenger tickets, baggage checks, air waybills and other documents required under applicable international conventions or other applicable law.
“General Terms” shall mean the general terms and conditions set out below;
“Operator” shall mean the operator of the Aircraft or any of its employees, directors and officers;
“Parties” shall mean Prestige Jets and the Charterer;
“Party” shall mean Prestige Jets or the Charterer as the context requires;
“STD” shall mean the scheduled time of departure in the Flight Schedule.
2 CHARTER BOOKING
2.1 Prestige Jets agrees to provide aircraft charter brokerage services to the Charterer in accordance with the requirements, terms and conditions of this Agreement.
2.2 Prestige Jets shall be responsible for the sourcing of a suitable aircraft from the Carrier for Charter in accordance with the Charterer’s requirements.
2.3 The Charterer agrees that carriage will be provided by the Carrier and that the Carrier will have the exclusive responsibility for the maintenance and operation of the Aircraft for the period of the Charter. The Charterer agrees that, Prestige Jets having no authorisation from the Carrier, the Crew shall be the servants and agents of the Carrier and shall be authorised to take orders only from the Carrier unless otherwise agreed by the Carrier and recorded in writing.
2.4 Prestige Jets shall procure that the Carrier provides the Aircraft properly manned, maintained, equipped and fuelled for the Charter in accordance with the laws and regulations of the state of registration of the Aircraft and all other applicable laws and regulations.
2.5 The Charterer accepts that Prestige Jets acts only as agent for the Charterer and the Carrier in arrangement of the Charter Contract.
2.6 Carriage performed by the Carrier shall be subject to the conditions of carriage contained or referred to in the Traffic Documents of the Carrier from time to time, including its own conditions of carriage.
2.7 If at any time prior to the STD, the Aircraft becomes unavailable or unserviceable for any reason whatsoever prior to commencement of the Flight Schedule, Prestige Jets will endeavor to find another suitable operator at the same price. Should this prove to be impossible, Prestige Jets will endeavor to find an alternative operator and/or Aircraft as at a close a price as possible to the Charter Price and put such possibility to the Charterer for acceptance.
2.8 If Prestige Jets is not able to substitute another Aircraft or the Charterer does not accept any available alternative, Prestige Jets shall return the Charter Price to the Charterer and shall not be under any further liability whatsoever to the Charterer. However, the Charterer shall remain liable to pay for any part of the Flight Schedule that has already been operated.
3 CHARTER PRICE
3.1 The Charter Price shall be specified in the Charter Contract and shall, unless otherwise stated, include fuel, oil, maintenance, landing, security, per capita head fees, air traffic control, hangarage, parking, ground handling, all license fees, clearance fees, royalties and non-objection fees, baggage screening charges, de-icing, customs duties, airport and passenger taxes, and the remuneration and expenses of the Carrier’s crew and cabin staff.
3.2 All other costs including (but not limited to) connections to and from airports, ground accommodation, ground transfers, cabin service, on board satellite telephone costs, and non-standard catering shall exclusively be for the account of the Charterer, unless otherwise specified in the Charter Contract, and any other additional service costs whatsoever and howsoever arising shall be paid by the Charterer unless otherwise specified in the Charter Booking. Any such additional costs shall be invoiced by Prestige Jets to the Charterer and shall be paid promptly by the Charterer.
3.3 The Charter Price shall be based on the costs of aviation fuel and other variables at the date of the Charter Contract. Accordingly, the Charter Price shall be subject to surcharges imposed by the Carrier for any fuel, insurance or currency variations.
3.4 The Charter Price and all other charges provided for in this Agreement are exclusive of any value added or sales taxes which shall be paid in addition by the Charterer at the prevailing rate.
4.1 The Charterer shall pay Prestige Jets the Charter Price and any sums set out in the Charter Booking at the time specified in the Charter Booking and in the currency specified in the Charter Booking without set-off, deduction or counterclaim.
4.2 In the event that additional services are requested over and above those in the Charter Booking and Prestige Jets agree to provide such services, Prestige Jets shall raise separate invoices for such services, the payment terms for which shall be set out in the invoice.
4.3 In the event that the Charterer is required to withhold any part of any payment payable by it to Prestige Jets hereunder or to make any deduction therefrom, it shall pay such additional amount as may be necessary so that, after making such withholding or deduction, Prestige Jets shall receive from the Charterer the full amount of such payment.
4.4 Time of payment is of essence in this Agreement. Prestige Jets may, without prejudice to any other rights or remedies under this Agreement, terminate this Agreement without liability to the Charterer in the event that payments are not made on the dates specified. Prestige Jets shall also be entitled to recover from the Charterer any applicable cancellation charges imposed by the carrier.
4.5 If for any reason any payment due to Prestige Jets hereunder is not made on the due date, and notwithstanding Prestige Jet’s rights in clause 4.3, then the Charterer shall pay to Prestige Jets simple interest on the amount unpaid at the rate of 8% per annum above the prevailing base rate of Bank of England from the due date until the date of payment.
4.6 If any payment is not received from the Charterer by the date specified in the Charter Booking, prestige Jets may, without prejudice to any other rights or remedies it may have in respect of such default, cancel this Agreement with no further liability to the Charterer and Prestige Jets will be entitled to cancellation charges from the Charterer in accordance with clause 5.5
5 FLIGHT CANCELLATION AND DELAY
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 Prestige Jets shall use reasonable endeavours to find an alternative Carrier to operate such Flights as may be affected by the occurrence of any of the above events. Any additional costs in securing an alternative Carrier shall be paid by the Charterer.
5.2 if a Flight is, or is to be delayed beyond the scheduled time of departure by reason of any failure by the Charterer or any passenger to comply with its obligations hereunder or any other act or omission on the part of the Charterer or any passenger, in all cases which is not attributable to Force Majeure or otherwise not beyond Charterer’s or any passenger’s control, then Prestige Jets shall use reasonable endeavours to make arrangements with the Carrier to re-schedule the affected Flight provided always that the Charterer shall indemnify Prestige Jets in respect of any loss incurred by, or increased charges levied on, Prestige Jets as a result of such delay.
5.3 If Prestige Jets is unable to make arrangements with the Carrier to re-schedule the affected Flight, Prestige Jets reserves the right in such circumstances to cancel the Charter Agreement with respect to the affected Flight, and to charge the Charterer the applicable cancellation charges in the Charter Contract.
5.4 In the event of any delay (other than any delay for technical reasons the responsibility and liability for which shall lie with the Carrier) deviation or diversion of any Flight, the Charterer shall be solely responsible for any and all accommodation, refreshments, meals, transportation or any other additional costs, expenses, losses, damages or liabilities of whatsoever nature incurred in respect of the Charterer’s passengers wherever and howsoever the same shall arise. All such costs, expenses, losses, damages or liabilities incurred by the Carrier shall be reimbursed by the Charterer to Prestige Jets on demand.
5.5 The Charterer may cancel a Flight pursuant to this Agreement at any time prior to departure by notice in writing to Prestige Jets, subject to the cancellation terms set out in the Charter Booking.
Upon cancellation, the Charterer will be obliged to pay Prestige Jets the cancellation charges including notice period and percentage of Charter Price, which is set out below:
- After exchange of Contract 30%
- Between 7 days and 48 hours prior to scheduled departure 60%
- Between 48 hours and 24hrs prior to scheduled departure 80%
- Less than 24hrs prior to scheduled departure 100%
5.6 Cancellation charges shall vary depending on the Carrier and Flight(s) to be performed. Prestige Jets shall use reasonable endeavours to minimise cancellation charges raised by the Carrier. However, the Charterer acknowledges that such charges will be levied upon Prestige Jets in the event of Charterer’s cancellation and as such, the cancellation charges as between Prestige Jets and Charterer represent a genuine pre-estimate of the loss that Prestige Jets will suffer and do not in any way represent a penalty.
5.7 Prestige Jets may apply any monies already received from the Charterer in satisfaction of such cancellation charges.
6.1 Either Party (“the terminating party”) may terminate this Agreement immediately by notice in writing if:
6.1.1 the other party commits a breach of this Agreement which is incapable of remedy or which, if capable of remedy, is not remedied within such reasonable time as the terminating party shall require following notice to the other party of the breach: or
6.1.2 the other party is unable to pay its debts (within the meaning of Section 123 Insolvency Act 1986 as if the words “if it is proved to the satisfaction of the court” were replaced by “if in the reasonable opinion of the terminating party”) or a petition is presented or a resolution is passed to wind up the other party or an administration order is made in relation to the other party or a receiver, manager, administrative receiver or like person is appointed over the whole or any material part of the property, undertaking or assets of the other party; or the other party makes a voluntary arrangement within the meaning of Section 253 Insolvency Act 1986 or the other party becomes insolvent or is otherwise unable to pay its debts; or an analogous event to any of those in this clause occurs in respect of the other party in any territory whose jurisdiction the other party is subject.
6.1.3 Termination of this Agreement shall be without prejudice to any rights or remedies available to or any obligations or liabilities accrued to, either party at the effective date of termination. Except as provided herein, following termination the parties will have no obligation to further perform their obligations under this Agreement, with the exception of any obligations which expressly apply hereunder after termination.
6.1.4 Notwithstanding anything in this Agreement to the contrary, in the event of any termination by Prestige Jets, Prestige Jets shall, at Charterer’s request, honour and cause each Carrier to perform any trips that were scheduled by Charterer prior to the effective date of the termination.
6.1.5 In the event of the Charterer terminating this Agreement, the Charterer shall be liable for cancellation charges in accordance with clause 5.5. if the Charterer cancels one or more of the flights in the Flight Schedule, the Charterer shall pay Prestige Jets cancellation charges based on such proportion of the Charter Price as Prestige Jets shall reasonably determine.
7 AIRCRAFT AND CREW
7.1 The captain of the Aircraft shall have complete discretion concerning preparation of the load carried and its distribution and of the Aircraft for flight, whether or not a Flight shall be undertaken or abandoned once undertaken and deviation from proposed route, where landing shall be made and all such other matters relating to the operation of the Aircraft and the Charterer shall accept all such decisions as final and binding.
7.1.1 All ground and operating personnel, including cabin staff, are authorised to take orders only from the Carrier unless specific written agreement shall first have been obtained from the Carrier whereby certain defined instructions may be accepted by such personnel from the Charterer.
7.1.2 Subject always to the Carrier’s conditions of carriage, in the event that a passenger’s conduct, behaviour or health is deemed by the captain of the Aircraft to cause, or be likely to cause, discomfort or nuisance to other passengers or jeopardise the safety of the passengers and/or the Aircraft, then the captain of the Aircraft shall be entitled to take any action deemed necessary to procure the safety of the passengers and Aircraft including, but not limited to diverting or returning to the airport of departure and/or removing the passenger(s) in question. If such action is deemed necessary, Charterer shall compensate Prestige Jets against any loss incurred by Prestige Jets as a result of such diversion and removal.
8 EXCLUSION OF LIABILITY AND INDEMNITY
8.1 Both Prestige Jets and the Charterer shall not be under any liability to each other for any failure by it to perform its obligations under this Agreement arising from Force Majeure, labour disputes, strikes or lock-outs or any other cause beyond the control of each party including but not limited to accidents to or failure of the Aircraft, engines or any other part thereof or any machinery or apparatus used in connection therewith.
8.1.2 The Charterer shall indemnify Prestige Jets against any loss, damage, liabilities, costs or expenses of whatsoever nature caused to be suffered or incurred by Prestige Jets 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.
8.1.3 Prestige Jets is not an air carrier neither is it an operator of aircraft or agent of the Carrier and accordingly shall not be deemed to undertake any carriage to which this Agreement relates as a common carrier. Prestige Jets acts solely as agent for the Charterer and Carrier.
8.1.4 The Charterer hereby acknowledges that it recognises that Prestige Jets 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 hereunder and hereby waives any claims against Prestige Jets for the Carrier’s acts, omissions and defaults, including but not limited to, technical failure of the Aircraft resulting in accident, cancellation or delay. However, nothing in this cause shall exclude or restrict Prestige Jet’s liability for death or personal injury arising out of its negligence.
8.1.5 The operation of the Flight Schedule will be subject to the Carrier’s terms and conditions of carriage, a copy of which the Charterer may obtain on request from either Prestige Jets or the Carrier. The Charterer should be aware that, depending on the domicile of the carrier, amongst other things, the liability of the Carrier to the Charterer may be limited in certain ways, including with regard to death and personal injury.
9 THIRD PARTY RIGHTS
9.1 The parties to this Agreement shall be deemed not to have intended to confer by the Agreement any rights whatsoever on any other person. Accordingly, the provisions of Contracts (Rights of Third Parties) Act 1999 (or any or re-enactment thereof) are expressly excluded.
10 APPLICABLE LAW AND JURISDICTION
10.1 This Agreement shall be governed and interpreted in accordance with English law and the parties hereby submit to the jurisdiction of the English Courts to settle any claim or matter arising under this Agreement. If so requested by Prestige Jets the Charterer shall provide an address in England and Wales where service of process can be effected.
11.1 The Charterer shall not be entitled to assign the benefit of this Agreement to any other person without the consent in writing from Prestige Jets.
12 OPERATION OF THE FLIGHTS
12.1 As stated in clause 8.1.5 above the Carrier’s terms and conditions of carriage apply to the operation of the Flight Schedule pursuant to the Charter Contract. These conditions shall include the following provisions without prejudice to the application of the Carrier’s other terms and conditions of carriage.
12.1.2 In the event of any discrepancy between the Carrier’s terms and conditions of carriage and the following provisions, the following provisions shall prevail.
12.1.3 If the Aircraft, for any reason, whether before or after the commencement of the Flight Schedule, becomes incapable of undertaking or continuing all or part of the Flight Schedule, the Carrier may at its absolute discretion substitute one or more aircraft of the same or another type and the provisions of the Agreement shall apply to the substituted aircraft.
12.1.4 If the performance of the Flight Schedule is prevented or delayed by the Charterer or anyone acting on its behalf including (but not limited to) any passenger arriving later than 30 minutes before the STD, the Carrier may at its absolute discretion and without liability depart as scheduled or delay departure. Any additional expense attributable to such delayed departure shall be borne by the Charterer.
12.1.5 In the event of non-performance of the Charter Contract or delay caused by actions of third parties, labour difficulties, Force Majeure, including but not limited to inclement weather or technical breakdown or accident to the Aircraft or any part thereof, or any machinery to be used in relation to the Aircraft, the Carrier shall use all reasonable endeavours to perform or continue the Flight Schedule but otherwise shall have no liability to the Charterer whatsoever.
12.1.6 In the event of non-performance of the Charter Contract or delay under clause 12.1.5 above, the Charterer shall be liable to pay to Prestige Jets such proportion of the Charter Price as shall apply to that part of the Flight Schedule which has been performed together with any additional charges and expenses payable by the Charterer pursuant these General Terms.
12.1.7 The Carrier shall be entitled to depart from the Flight Schedule where necessary in its reasonable opinion and any additional expenses applicable to such departure shall be borne by the Charterer.
12.1.8 If the Aircraft for any reason is diverted from any airport, aerodrome or destination shown in the initial Flight Schedule to another, the journey to the scheduled destination shall be deemed to be complete when the Aircraft arrives at such other destination.
12.1.9 The captain of the Aircraft shall have absolute discretion to:
12.1.10 refuse any passenger(s), baggage, cargo or any part thereof;
12.1.11 decide what load may be carried on the Aircraft and how it should be distributed;
12.1.12 decide whether and when a flight may be safely undertaken and where and when the Aircraft shall be landed.
12.1.13 The Charterer shall ensure that any goods to be transported are sufficiently and properly packed for carriage and shall supply adequate tie-down material and equipment taking into account all reasonable demands of the Carrier and the captain and where necessary complying with IATA Dangerous Goods Regulations, [a copy of which is available for inspection at the office of prestige Jets].
12.1.14 The Carrier shall be entitled at its own discretion and without compensation to the Charterer to use any part of the carrying capacity of the Aircraft unused by the Charterer, except by means of the carriage of additional passengers, and to use any part of the Flight Schedule unused by the Charterer.
13 TRAFFIC DOCUMENTS AND EMBERKATION
13.1 Prestige Jets shall procure that the Carrier shall supply the Traffic Documents and all other necessary documents relating to the carriage undertaken pursuant to this Agreement and the Charterer shall provide to Prestige Jets all necessary information and assistance to complete such documents as soon as possible after the making of this Agreement and, in any event, in sufficient time to be completed for issue to passengers.
13.1.2 All Flights are conditional on the grant and continued retention of, and are subject to, the terms and conditions of (i) the relevant air transport license issues to the Carrier by the relevant authority and (ii) any further licenses or registrations which may be required for the operation of the Flight, whether required under the laws or regulations of the state in which the Aircraft is registered or any other state to, from or over which the Aircraft will be flown in the course of the Flight.
13.1.3 The Charterer shall ensure that passengers and their baggage and any cargo shall be at the specified check-in point at the departure airport not later than the Check-In Time and that all passengers possess all required Traffic Documents, identity documents, passports, visas and other documents required by the Carrier and authorities of states of departure, transit and arrival of the Flight for the transportation of them, their baggage and any cargo.
13.1.4 In the event that any passenger of the Charterer fails to arrive in sufficient time to be carried on the Flight (notwithstanding any efforts made by Prestige Jets to re-schedule the Flight pursuant to clause 5.2), Prestige Jets and/or the Carrier shall be under no liability whatsoever to the Charterer or to such passenger. If the Carrier, in its absolute discretion, arranges for any such passenger to be carried on an alternative flight or routing, the Charterer shall pay on demand to Prestige Jets such additional sum that the Prestige Jets may specify for each such passenger to cover any additional charges levied by the carrier.
13.1.5 in the event that any passenger of the Charterer is refused entry at any destination airport, the Charterer shall indemnify and keep indemnified Prestige Jets, its officers and employees and agents against any and all cost or expense whatsoever incurred by Prestige Jets in respect thereof (including but not limited to charges, fee, penalties, imposts or other expenses levied upon the carrier and passed on to Prestige Jets) or of any arrangements made by the Carrier and/or Prestige Jets to return such passengers to the country from which such passengers was originally carried.
14.1 Any notice required to be given under this Agreement shall be in writing and shall be deemed duly given if left at or sent by first class post or facsimile message to the address herein stated of the party to whom it is to be given. Any such notice shall be deemed to be served at the time when the same is handed to or left at the address of the party to be served and if served by post on the day (not being a Sunday or Public Holiday) next following the day of posting or if served by facsimile message upon the day such facsimile message is sent.
15 GENERAL PROVISIONS
15.1 This Agreement sets out the entire agreement and understanding between the parties or any of them in connection with the charter of the Aircraft as described herein.
15.1.2 No person other than a party to this Agreement may enforce this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
15.1.3 No party has relied on any warranty or representation of any other party except as expressly stated or referred to in this Agreement.
151..4 No claims shall be made against Prestige Jets 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.
15.1.5 No variation of this Agreement shall be effective unless made in writing and signed by authorised signatories on behalf of both parties.
15.1.6 No failure by Prestige Jets to exercise and no delay by Prestige Jets 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.
15.1.7 The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege by such party.
15.1.8 This Agreement may be executed in any number of counterparts each of which shall be an original but such counterparts shall together constitute but one and the same instrument.