Charter Master Agreement (“Agreement”)
1. Charter Broker
a. Client appoints and authorizes GC to act as agent for Client to arrange for air transportation services (“Flight Services”) operated by one or more licensed Third-Party Certified Air Carriers (“Carrier” or “Carriers”) on Client’s behalf. Client hereby designates, constitutes and appoints GC as its true and lawful attorney-in-fact, for the purposes of arranging Flight Services pursuant to one or more air transportation agreements, each a “Flight Services Agreement” (or similarly named document). GC may exercise this power of attorney to sign Client’s name on any documents necessary to obtain such Flight Services on behalf of Client, and Client declares that any act lawfully done hereunder by GC on behalf of Client shall be effective, valid and binding on Client as if the same had been signed, sealed and delivered or done by Client. GC’s appointment as Client’s attorney-in-fact, and all of GC’s rights and powers hereunder, shall be deemed coupled with an interest, are irrevocable and shall remain in effect until GC’s obligation to arrange for Flight Services has terminated.
b. GC shall act solely and exclusively as Client’s agent in arranging on demand Flight Services between Client and Carriers under the rules and regulations of Federal Aviation Administration (“FAA”) and Department of Transportation (“DOT”). All flights are operated by a Carrier, a U.S. 14 CFR Part 135 on-demand air carrier. Carrier, and not GC, is responsible for ensuring the safety of a flight and providing the Flight Services, including the flight crew and aircraft operations. The Carrier has authority from both the FAA and DOT to operate. GC IS NOT A CERTIFICATED U.S. 14 CFR PART 135 AIR CARRIER, NOR DOES IT PROVIDE AIR CARRIER SERVICES. All flights under this Agreement are operated by a Carrier, a FAR Part 135 air carrier, who shall have exclusive direction, control and authority over initiating, conducting or terminating flights (“Operational Control”).
c. Client understands and agrees that the Carrier shall have absolute discretion in all matters, including, without limitation, the preparation of the aircraft for flight and the flight itself, the load carried and its distribution, the decision whether or not a flight will be performed, what route will be flown, and all matters relating to the operation of the aircraft. Client specifically agrees that the Carrier shall have final and complete authority to cancel any flight for any reason or condition that in its sole and absolute judgment could compromise the safety of a flight and may take any other action that, in its opinion, is necessitated in consideration of safety. No such action of the Carrier shall create or support any liability for loss, injury, damage or delay to Client. During any and all flights conducted pursuant to this Agreement, the Pilot-in-Command (as defined by the FAA) of such flight shall at all times be empowered to take all steps necessary in the interest of the safety of the Aircraft, its passengers, its crew, any cargo, and the operation of the flight, including re-routing, shortening, lengthening, terminating or cancelling such flight. GC OFFERS THE METHOD BY WHICH TO OBTAIN THE SERVICES OF THE CARRIER, BUT IN NO WAY DOES IT HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY FLIGHT SERVICES PROVIDED BY THE CARRIER.
2. Scheduling
a. All requests by Client to schedule a Trip (as defined below) must come from an Authorized Client Representative and shall be submitted to GC by e-mail containing such information and, on a form, as specified by GC. At a minimum, Client shall provide GC the following information for each requested flight: (i) desired departure point; (ii) desired destination; (iii) desired date and time of flight; (iv) the number, age, weight and names of passengers; (v) the nature and extent of luggage, including approximate weight; (vi) the date and time of a return flight, if any, and (vii) any other information concerning the proposed flight and any required documentation that may be pertinent or is reasonably required by GC. GC shall provide the Authorized Client Representative for each flight or group of flights (collectively referred to as a “Trip”) a charter quote to Client as per the Client’s travel profile (the “Charter Quotes”). Charter Quotes will set forth a detailed itinerary, flight costs, aircraft details and other applicable information (as available). In order to convert a Charter Quote into a reservation, Client is required to sign and return a copy of the Charter Quote signifying acceptance of same within the time frame required by GC and/or the Carrier. Client hereby also acknowledges and agrees to abide by and submit to any additional and/or alternative terms and conditions that a Carrier may promulgate, including the Carrier’s Contract of Carriage. By accepting the Charter Quote, Client authorizes GC to enter into a contract with the Carrier as Client’s agent. In addition, each accepted Charter Quote and related terms and conditions, including those additional and/or alternative terms and conditions that a Carrier may promulgate, including the Carrier’s Contract of Carriage are hereby incorporated into this Agreement.b. All requests for Flight Services by Client are subject to acceptance by GC. GC hereby expressly reserves the right to accept or reject any reservation requests for any reason, or for no reason, whatsoever.
Charter Costs, Fees and Expenses
a. The Charter Quote for each specific trip shall set forth the charter price and any associated costs and expenses for each Trip. All pricing is dynamic and no pricing is guaranteed. In addition to normal and customary flight charges, federal excise taxes, segment fees and international fees, Client will be responsible to pay any Additional Expenses incurred on, or with regard to a Trip that may not have been set forth in the Charter Quote. The term “Additional Expenses” may include, to the extent not otherwise set forth in the Charter Quote, the following costs incurred by GC or Carrier in connection with the provision of Services: (i) specially requested catering in excess of standard catering, (ii) request to use an FBO other than the one selected by GC, (iii) de-icing charges, (iv) international fees including international Wi-Fi, (v) in-flight entertainment, (vi) ground transportation charges, (vii) additional crew costs if more than one crew is required to complete the Trip, (viii) pet cleaning fees, (ix) in-flight phone calls made by Client; (ix) Airspace, airport, ramp, landing fees, and parking fees; (x) special event and handling fees; (xi) charges associated with medical transports; (xii) taxes; (xiii) fuel surcharge; (xiv) high density airport fees and (xv) any other out of the ordinary charges incurred at the specific request of Client.
b. Client shall further be responsible for all taxes including but not limited to: sales, use, VAT, stamp, federal excise tax, transfer, and other fees, charges, imposts duties and penalties that may be imposed by any federal, state, county, local, foreign or other governmental authority as a result of the flights and services provided in connection with this Agreement ("Taxes"). All domestic Trips are subject to federal excise tax on passenger flights, and a domestic segment tax. Trips with any point of departure or landing outside the United States are subject to a federal departure tax. Client shall defend, indemnify and hold GC harmless against any such Taxes.
c. Client understands and acknowledges that such Additional Expenses, Taxes, fees and charges may be added to the Charter Quote (if known at the time the Charter Quote is executed) or will be billed to Client’s Deposit Account after the Trip and may result in an increase to the final cost of the Trip as compared to the confirmed Charter Quote. All such Additional Expenses, Taxes, fees and charges are due and payable immediately upon completion of the Trip.
Payment
a. Client is required to prepay the cost of the Trip as set forth herein and/or maintain cash on account with GC in a pre-paid account (the “Client Account”). All pre-paid deposits will be maintained in a GC bank account with an accessible link for Client to view their Client Account status and activity. Funds in the Client Account are used exclusively for Flight Services and travel related costs incurred on behalf of the Client. Pre-paid deposits may be made via check, ACH or wire transfer.
b. Prior to funding the Client Account, the Client will be advised regarding an estimated cost of their annual travel profile and an agreed upon amount for deposit will be determined between the Parties. During the term of the Agreement, if at any time the Client Account reaches the agreed upon minimum balance or below, the Client agrees to immediately deposit additional funds to restore the Client account to the minimum deposit amount or more.
c. Upon Client’s written acceptance of a Charter Quote to GC, full payment must be made to GC. The cost of such trip set forth in the Charter Quote shall be deducted from the Client Account. In the event the Client does not have sufficient funds in their Client Account to cover the costs, payment of the deficiency is due immediately by ACH, check, or wire. If paying by wire transfer or check, a credit card authorization will be required and will be processed as security for the transaction amount. If payment is not received within five (5) business days prior to the start date of the Trip, the credit card on file with GC may be charged without further notice or request. Until such payment or credit card authorization is secured, GC cannot guarantee the Trip as set forth in the applicable Charter Quote.
d. Client’s unrestricted funds must reach GC to provide ample time for the GC to pay the Carrier under standard and customary industry terms prior to the commencement of the Trip. Such standard and customary payment terms provide that Carriers are to be paid 72 hours prior to scheduled departure. For trips departing on the weekend or a holiday, Carriers must be paid on the last business day prior to scheduled departure.
e. At the discretion of GC, credit cards may be accepted for payment of costs due under this Agreement. Additional payment terms may be arranged and agreed upon by GC and Client, which shall be listed in the Charter Quote for each specific Trip. All credit card payments will incur a 5% fee.
Authorized Charter Flight Schedulers
Client shall authorize individuals to request, confirm and cancel Trips on behalf of Client (the “Authorized Client Representatives”). Only Client or the Authorized Client Representatives may request, confirm, amend or cancel a Trip and Client understands and acknowledges that Client will be bound by the actions or inactions of its Authorized Client Representatives. The Authorized Client Representatives must be provided to GC in writing by Client. Client may from time to time amend the Authorized Client Representative list, but such amendments may only be made in writing to GC.
Identification
All passenger names must be provided to GC at least forty-eight (48) hours prior to the departure date for domestic trips and at least seventy-two (72) hours prior to the departure date for international trips. A valid government-issued photo ID is required for all passengers over the age of 18 prior to the passenger boarding the flight. The Client is further responsible for obtaining any travel authorization documents such as passports and visas that may be required by any governmental authority. In the event the Client/passenger provided ID and/or security information is invalid, any and all liability for government issued fines is the Client's responsibility. Client also acknowledges that any inconsistencies in the passenger manifest may cause departure delays, for which GC shall not be responsible.
Cancellation; Itinerary Changes; Trip Interruption/Termination
a. In the event that Client cancels a confirmed Trip outside of the applicable Carrier’s cancellation policy or fails to show for a confirmed Trip, the Client hereby understands and consents to GC paying such Carrier the amount mandated under such Carrier’s cancellation policy for any such fees and/or expenses relating to late cancellations or failure to show for a Trip (the “Cancellation Charge”) and that Client is subject to the payment terms of such cancellation. A Client “no-show” will be charged the full amount of the Charter Quote if the Client is more than one (1) hour late from scheduled departure time listed on the itinerary and Client has not notified GC. If the Client notifies GC of a delay within the one (1) hour window after the scheduled departure time, GC will make every effort to accommodate the new extended/expected departure time but cannot guarantee completion of the flight due to crew duty or other scheduling issues. Cancellation charges may apply as set forth above.
b. Client acknowledges that any change in date, time, itinerary, number of passengers or type of aircraft may be deemed a cancellation and may be subject to a Cancellation Charge. GC will use its best efforts to assist Client with any material change that is requested, but such changes are subject to the terms, regulations and policy of the Carrier. Client acknowledges that a “no show” may be considered a cancellation and the Client may be charged up to 100% of the cost of the Trip. A Client “no-show” occurs if the Client is more than one (1) hour late from scheduled departure time listed on the itinerary and Client has not notified GC. Other types of cancellation charges may include, but are not limited to: costs incurred as a result of partial completion of itinerary, including but not limited to return of aircraft to its base, plus the greater of: (i) costs incurred for specifically positioning and repositioning an aircraft and flight crew in preparation for the cancelled trip, (ii) flight charges equivalent to two hours of operation for each day of the cancelled itinerary, or (iii) any fees incurred by GC as a result of the client's cancellation.
c. GC reserves the right to adjust the terms of its cancellation policy at any time upon notice to the Client. Any cancellation of any confirmed Charter Quote or portion thereof may be subject to the terms and conditions of the applicable Carrier. GC assumes no responsibility for the disposition or cancellation of any Charter Quote, either by Client or Carrier.
d. A 100% cancellation fee (100% of the Charter Quote) will apply in the event a flight is affected by security concerns caused by the Client and/or passengers. GC and Carrier, as applicable, reserve the right to cancel a flight, refuse to commence a flight, postpone any flight, or take other necessary action, if in the sole discretion of GC, Carrier or the pilots of a aircraft, the safety may be compromised, and GC and Carrier may take such action without breaching its duties or obligations to Client or be liable for any loss, injury, damage, or delay.
e. GC and Carrier reserve the right to, and shall not be liable for, altering schedules and/or canceled flights due to Force Majeure. “Force Majeure” means an act of God, strike or lockout or other labor dispute, act of a public enemy, war (declared or undeclared), terrorism, blockade, revolution, civil commotion, fire, any weather-related event affecting safety of flight, flood, earthquake, explosion, governmental restraint, embargo, mechanicals, inability to obtain or delay in obtaining equipment, parts, or transport, inability to obtain or delay in obtaining governmental approvals, permits, licenses, or allocations, and any other cause outside of the complete control of GC or Carrier, as applicable, whether or not of the kind specifically listed above. In the event the Trip is not completed due to Force Majeure, the Client will be responsible for payment for all costs incurred for the completed portion(s) of the Trip but will not be responsible for the portions of the Trip not completed. In no event shall GC be liable for damages claimed as a result of a cancelled or delayed flight. GC does not guarantee that an alternative aircraft will be available but will make every reasonable effort to arrange a comparable aircraft option which may result in an additional charge to the Client.
Liability for Damages
Client shall be held liable and responsible for any and all damage to an aircraft and property of Carrier caused by Client or Client’s guests whether or not Client was physically aboard the aircraft at the time such damage occurred.
Termination
GC and Client agree that either party may terminate this Agreement at any time with thirty (30) days written notice. Client is obligated to pay all amounts due to GC for services provided or contracted for prior to termination. Within ninety (90) calendar days following the termination of this Agreement, a full accounting shall be made by representatives of both GC and Client, and all accounts settled between the Parties.
Limitation of Liability; Sole Recourse; Indemnification
a. IN NO EVENT SHALL GC’S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT UNDER THE CHARTER QUOTE GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL GC OR CARRIER BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, LOSS OF REVENUE, LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF VALUE OR LOSS OF OTHER ECONOMIC ADVANTAGE). GC SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY CLIENT, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY DELAY OR FAILURE TO FURNISH AN AIRCRAFT CAUSED OR OCCASIONED BY THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS OF GC OR A CARRIER, OR ANY RELIANCE PLACED BY CLIENT ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN CLIENT AND ANY CARRIER, EVEN IF ANY PARTY HERETO KNEW OR SHOULD HAVE KNOWN OR WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. CLIENT AND GC AGREE TO ACCEPT THE PROCEEDS OF THE LIABILITY INSURANCE MAINTAINED BY GC OR CARRIER, AS APPLICABLE, AS THEIR SOLE RECOURSE AGAINST EACH OTHER IN THE EVENT OF ANY CLAIM RELATING TO A TYPE OF INJURY, DEATH, OR PROPERTY DAMAGE FOR WHICH SUCH INSURANCE IS BEING PROVIDED.
c. Client shall indemnify, defend, and hold harmless GC, Carrier and all of their respective officers, directors, shareholders, members, employees, legal representatives, and other agents, successors and assigns, and aircraft owners and aircrew (the "Indemnified Parties") from and against any and all liabilities, losses, damages, penalties, costs (including reasonable attorney's fees, court costs, expenses and disbursements from the date of first notice) and expenses on account of any claim, suit, cause of action, governmental action or proceeding, or other investigation, demand, proceeding, or anything of a similar nature made or brought against any of the Indemnified Parties as a result of Client's violation of this Agreement or as a result of the services provided hereunder to Client. Such indemnity shall include any and all liability resulting from bodily injuries (including death), property damage or any breach of contract damages, except to the extent such indemnified losses arise from the gross negligence or willful misconduct of the Indemnified Parties.
Regulations
This Agreement is subject to all governmental laws, rules and regulations governing the flights contemplated hereunder, including, without limitation, any rules and regulations of the FAA, Transportation Security Administration, DOT, the Internal Revenue Service and any other applicable federal, state or local law, regulation or rule whether in existence on the Effective Date or subsequently made applicable.
Notice and Communications
Any notice, request, instruction or other document to be given hereunder by Client or GC must be made in writing and shall be deemed to have been given, (a) when received if given in person, (b) on the date of transmission if sent by e-mail (with answer back confirmation of such transmission), (c) upon delivery, if delivered by a nationally known commercial courier service providing next day delivery service (such as Federal Express), or (d) upon delivery, or refusal of delivery, if deposited in the U.S. mail, certified or registered mail, return receipt requested, postage prepaid. Unless another address is specified in writing, any notice, request, instruction or other documents given to the parties to this Agreement shall be sent to the addresses indicated in the opening paragraph of this Agreement.
Miscellaneous
a. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns.
b. Except as expressly provided herein, this Agreement between Client and GC may not be assigned to another party. Any attempted assignment is null and void.
c. If any provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid. Rather, the Agreement shall be construed as if not containing the particular invalid or unenforceable provision, and the rights and obligations of each Party shall be construed and enforced accordingly.
d. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
e. This Agreement may be fully executed in two (2) or more separate counterparts by each of the parties hereto, all such counterparts together constituting but one and the same instrument. Such counterparts may be exchanged via facsimile (or other electronic) transmission and any facsimile or electronic signatures shall be binding.
f. In the event it becomes necessary to enforce the terms of this Agreement by litigation or otherwise, the prevailing party shall be entitled to recover its reasonable attorney's fees and court costs, including any such fees or costs arising from subsequent appeals and efforts to execute on any judgment.
g. This Agreement shall be governed and construed in accordance with the laws of Ohio without regard to conflict of law principles. Each Party herby consents to the jurisdiction and venue of the state and federal courts located in Franklin County, Ohio. THE PARTIES HEREBY KNOWINGLY AND FREELY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT OR PROCEEDING RELATING TO, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
h. This Agreement, the Charter Quotation Terms & Conditions, and all Charter Quotes attached hereto, set forth the entire agreement and understanding of the parties hereto in respect to the transactions contemplated hereby. This Agreement, the Charter Quotation Terms & Conditions, and all Charter Quotes attached hereto supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof and are not intended to confer upon any other person any rights or remedies hereunder. If there is any conflict between the terms and conditions of this Agreement and the Charter Quotation Terms & Conditions and Charter Quote, the Charter Quote shall prevail.
i. This Agreement, the Charter Quotation Terms & Conditions, and any Charter Quotes are confidential, and may not be disclosed to any third party without the written consent of GC, except as required by law and except that Client shall be entitled to disclose same to its attorneys, accountants, and consultants and as needed to perform its obligations thereunder. GC will not disclose information regarding Client, passengers, or their travel arrangements, unless authorized by Client, required by law or to perform its obligations hereunder. Only persons named as Authorized Client Representatives in GC’s records for the Client account are authorized to obtain information about flight or billing information.
j. Each party represents and warrants to the other that it (i) is duly authorized by all necessary corporate, partnership, or other applicable action to execute, deliver, and perform this Agreement, and (ii) will not use an aircraft for the purpose of transporting passengers or cargo in air commerce for compensation or hire except in accordance with the provisions of Sections 91.321 and/or 91.501 of the FARs, if applicable, or for any illegal purpose, or for any use prohibited by the insurance maintained on any such aircraft or which may cause the insurance coverage to become invalid or of no force or effect.
k. Client agrees that it is purchasing charter air transportation services for the carriage of Client and its guests, and that Client will receive no compensation from a guest passenger for being carried on board the flight, unless permitted by law.
l. Client represents and warrants that Client nor any of Client’s affiliates nor any of its shareholders, officers, managers, members, partners, equity owners, directors, representatives, agents, guests, passengers, or employees, or any person who owns a controlling interest in or otherwise controls Client or any of Client’s affiliates, nor any of Client’s transferees or permitted assigns (collectively, the “Purchase Parties”), is, or shall be during the term of this Agreement, (i) a person or entity designated by the US Government as a Specially Designated National or Blocked Person (“SDN”), Foreign Sanctions Evader (“FSE”), or on the Sectoral Sanctions Identification List (“SSIL”), or included on any of the US Government’s Entity List, Denied Persons List, Debarred List, or Unverified List, (ii) a person or entity designated by the European Union or United Kingdom for purposes of asset freeze, sanctions, sectoral sanctions, or restrictions on the receipt of any goods or technology, (iii) owned or controlled by an SDN, FSE, SSIL or a person/entity on the European Union’s, United Kingdom’s or the US Government’s restricted party lists identified in (i) and (ii) above, or (iv) organized, established, domiciled or resident in Belarus, Cuba, Iran, North Korea, Russia, Sudan, Syria or in the Crimea Region. There exists no prohibition under the laws of the United States on the matters contemplated by this Agreement related to the identity, citizenship, location or business of Client Should any of the representations in this paragraph be incorrect, either as of the Effective Date or at any time during this Agreement, the GC shall be entitled to immediately terminate this Agreement, recover from Client any and all fines and/or penalties imposed on the GC as a result of Client’s breach of this Section.