RECITAL
These Terms and Conditions along with the Confirmation of Booking, as may be amended from time to time (collectively, the “Charter Booking Agreement”), set out the terms and conditions upon which Volanteus (as defined below) is engaged by the Client to act as its broker to arrange for the charter services described in the Confirmation of Booking, and the Charter Booking Agreement supersedes of all other terms, conditions, warranties and representations, whether oral or written, express or implied (unless otherwise agreed in writing between Volanteus and the Client (each a “Party”, together the “Parties”). These Terms and Conditions form an integral part of the Charter Booking Agreement and are intended to be legally binding and enforceable between the Parties.
1.1 Within the conditions set out below, the following terms shall be defined as follows:
1.2 “Aircraft” means the aircraft (or its suitable substitute) operated by the Operator;
1.3 “Business Day” means a day (other than a Saturday or Sunday) on which normal business operations are conducted in New York, New York;
1.4 “Charter Booking” means the charter of the Aircraft by the Client from the Operator, as arranged by Volanteus and pursuant to the terms herein;
1.5 “Charter Booking Agreement” has the meaning assigned to such term in the Recital.
1.6 “Charter Contract” means the terms specified within the Charter Booking Agreement ;
1.7 “Charter Price” means the price payable for the Charter Booking and any additional services as agreed in advance between Volanteus and the Client as set out in the “Confirmation of Booking” or as otherwise provided for in this Charter Booking Agreement ;
1.8 “Client” means the individual, company, passenger, agent or responsible person or representative of the company or individual noted in any or all of the Charter Booking Agreement, Confirmation of Booking or passenger manifest, as applicable;
1.9 “Flight” means the flight(s) to be operated under FAR Part 135 or Part 121, [or the rules of any competent authority in any relevant state of registration or operation of any aircraft], as set out in the Confirmation of Booking and/or as further described in the Operator Contract;
1.10 “Flight Brief” means a briefing document supplied by Volanteus to the Client prior to the Flight detailing all necessary and specified information in relation to the Charter Booking;
1.11 “Flight Schedule” means all aspects of the Flight as described on the ‘Confirmation of Booking’ including the date, route, departure/arrival time and specification of the aircraft;
1.12 “Montreal Convention” means the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal, Canada on 28 May 1999, as amended from time to time;
1.13 “Operator” means the FAR Part 135 or Part 121 certificated operator of the Aircraft that is performing the Operator Contract, as named in the Confirmation of Booking;
1.14 “Operator Contract” means a contract entered into with the operator of aircraft to perform the Flight;
1.15 “STA” means the scheduled time of arrival of any Flight in the Confirmation of Booking;
1.16 “STD” means the scheduled time of departure of any Flight in the Confirmation of Booking;
1.17 “Travel Documentation” means all travel documents including but not limited to passports, visas, passenger tickets, baggage receipts, air waybills, health and other certificates and all other applicable documents required under the Montreal Convention or other applicable laws or by the Operator, any authority or any other relevant third party;
1.18 “US Bankruptcy Code” means Title 11 of the United States Code.
1.19 “Volanteus” means Volanteus Inc, incorporated under the laws of the State of Delaware and whose registered office is 1209 Orange Street, Wilmington, New Castle, Delaware 19801 and with registration number 7083955 and shall include any of its duly authorised employees, affiliates and related companies;
1.20 “Warsaw Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Warsaw, Poland on 12 October 1929, as amended from time to time.
1.21 Any references to statutes or statutory provisions shall be construed as including references to those statutes or statutory provisions as amended from time to time and shall be construed as including any regulations, instruments, orders or other secondary legislation under them.
1.22 Any references to a party to this Charter Booking Agreement shall include their permitted assignees, and, in respect of a Client party, their authorized personal representatives.
1.23 The headings used in this Charter Booking Agreement are for reference only and shall not be construed as affecting the construction or interpretation of any section therein.
1.24 Singular words shall include the plural and vice versa, words signifying one gender shall include all genders and vice versa and any references to persons shall include individuals, partnerships, corporations and unincorporated associations.
1.25 References to a recital or section is a reference to a recital or section in this Charter Booking Agreement.
1.26 Words and phrases including, but not limited to, “other”, “including” and “in particular” shall not limit the generality of any preceding words or be interpreted as limiting any preceding words to the same class where a broader construction is possible.
2.1 The Client hereby appoints and authorizes Volanteus as its limited agent to nominate, arrange and procure an aircraft and/or Operator and any additional services required to complete the charter flights in accordance with the Client’s requirements as specified in the Flight Schedule (the “Services”)on the Client’s behalf, as further specified below, and Volanteus hereby accepts such appointment on the terms and conditions of this Charter Booking Agreement.
2.2 Volanteus will use commercially reasonable endeavours to arrange and procure an aircraft to carry out the Services and will use commercially reasonable endeavours to select an Operator that is legally able to perform the Services. Volanteus shall use its commercially reasonable endeavours to ensure the Operator is contracted to provide that the Aircraft, at the commencement of the Flight, is properly manned, equipped, fuelled and airworthy and operated in accordance with the applicable laws and regulations of the FAA and that the Aircraft shall be operated in accordance with all applicable laws and regulations during the period of the Flight; provided, however, that the Client acknowledges and agrees that at all the times the operation of the Aircraft is in the control of the Operator.
2.3 The Client hereby authorizes Volanteus to negotiate or vary the terms of the Operator Contract with the Operator, as Volanteus sees fit in accordance with the Client’s requirements as specified in the Confirmation of Booking. Volanteus shall, as soon as it is practicable, notify the Client of any variations which, in the reasonable opinion of Volanteus, have a material effect on the Flight Schedule. The Client confirms that in no event shall Volanteus be required to negotiate (x) terms or variations of the Operator Contract which are not ordinarily offered by the Operator in its commercial provision of chartered flights nor (y) terms or variations which were not requested by the Client.
2.4 Once the Confirmation of Booking has been duly executed by Client and delivered to, and received by, Volanteus together with receipt of the Charter Price, Volanteus will, upon Client’s prior written approval, proceed to enter into the Operator Contract (or multiple Operator Contracts as may be required) and any contract for additional services with the Operator as agent on behalf of the Client. Once the Operator Contract has been duly executed, Volanteus will provide written confirmation that the Operator Contract and any contract for additional services have been fully executed by all parties. Client hereby acknowledges and agrees to be bound by and to fully perform its obligations set out in the terms of Operator Contracts negotiated and executed by Volanteus as Client’s agent.
2.5 The Client acknowledges and agrees that: (a) Volanteus is entering into the Operator Contract on its behalf as agent for the Client, (b) Volanteus is not itself a certificated air carrier, and (c) Volanteus is acting solely as Client’s agent in respect of the Operator Contract and has no responsibility or liability in connection with the performance, non-performance, acts or omissions of the Operator (or any other third party), including in respect of any change to or cancellation of the flights, delay or otherwise, arising from any act or omission by the Operator or by the Client.
2.6 The Client acknowledges and agrees that carriage will be solely provided by the Operator, who shall have exclusive responsibility for the maintenance, operation, command and control of the Aircraft for the period of the Flight. The Client further acknowledges and agrees that Volanteus has no authority over the Operator, its crew, ground staff or operating personnel and that all associated ground and operating personnel or air crew are acting on behalf of, and solely authorized to take orders only from the Operator, unless it is specified otherwise in the Confirmation of Booking and has been previously agreed with the prior written consent of the Operator, to be given prior to the commencement of the Flight Schedule, that the Client is authorized to provide defined instructions to the personnel of the Operator.
2.7 The Client acknowledges and agrees that in respect of the performance of the Flight and the Operator Contract, the Client has a contractual relationship only with the Operator and not Volanteus, who is acting solely as the agent of the Client. As such, any charters arranged on behalf of the Client by Volanteus shall be subject to the terms and conditions and limitations of liability imposed by the Operator.
2.8 Volanteus shall perform its obligations arising under or in connection with this Charter Booking Agreement with commercially reasonable care and skill. This Charter Booking Agreement is a limited agency agreement and Volanteus shall not assume any other duties, whether fiduciary or otherwise, to the Client unless such duties are expressly set out in this Charter Booking Agreement.
The Client shall comply and shall ensure that all cargo, and any Cargo Attendants or other passengers shall comply with all relevant laws and regulations relating to the nature, packaging, labelling, storage or carriage of any cargo or passengers, including in accordance with any conditions or instructions set out in the Operator Contract or Operator Conditions of Carriage. Volanteus shall not be liable to the Client or any other person for costs, fines, expenses, loss or damages due to the Client’s failure to comply with such laws and regulations.
3.1 The Client is responsible for the performance of the Client’s obligations, as defined under this Charter Booking Agreement, the Operator Contract, the Flight Brief and any other relevant written communications outlined prior to the flight date.
3.2 The Client shall indemnify Volanteus against any and all losses and liabilities which Volanteus may incur as a result of it acting with reasonable care and diligence within the scope of its authority as agent to the Client. Client shall further indemnify Volanteus against any costs, fines, expenses, losses or damages of whatsoever nature, suffered by reason of any breach of the Operator Contract by Client or any of its cargo attendants or passengers, including the failure of the Client to comply with the laws and regulations as set forth in Section 3.1 .
3.3 The Client shall complete all travel documents in such form as the Operator or Volanteus may require at a reasonable time as defined by Volanteus, prior to STD. It shall be the responsibility of the Client to ensure that properly completed travel documents are delivered to passengers and shippers in accordance with the applicable governing laws and that all passengers and shippers comply fully with the provisions as defined within the travel documents prescribed. If the Client’s passengers and shippers do not comply fully then Client acknowledges that the Operator may reserve the right to refuse boarding/loading and/or carriage of the Client and/or its passengers and/or baggage and/or cargo accordingly. Volanteus shall not be liable for any costs, fines, expenses, losses or damages of whatsoever nature arising from Client’s failure to comply.
3.4 The Client shall ensure that any cargo, cargo attendants and other passengers shall arrive at the specified check-in and/or delivery point at the departure airport not later than the Check-in Time, as defined within the Flight Brief. The Client acknowledges that any delays to the departure or arrival of any Flight to the extent caused by any action, omission or occurrence of involving the Client, any cargo, cargo attendant, or passengers shall entitle the Operator to charge demurrage as set out in the Confirmation of Booking and/or to cancel or operate any Flight at its discretion.
3.5 If the Client or any of its cargo, cargo attendants or passengers should fail to arrive at the check-in or departure point by the required time notified by Volanteus or the Operator or, if no time has been notified, in good time prior to the scheduled time for departure, the Operator may depart as scheduled and the Operator and/or Volanteus shall in no way be responsible for or to Client or any passengers for any damages, losses, expenses or costs.
3.6 The Client shall provide all information, assistance and documentation as reasonably requested by Volanteus in order to perform its obligations under this Charter Booking Agreement. The Client warrants as to the truthfulness, completeness and accuracy of any information or documentation it provides to Volanteus in connection with the Charter Booking Agreement.
3.7 The Client shall ensure the cargo and all cargo attendants and other passengers comply with all customs, health, security and other laws and regulations which are applicable to the Flight Schedule. The Client shall also ensure that all passengers are fit to travel and are sober, and client acknowledges and agrees that the captain of the Operator will have the overall discretion with regards to the operation of the Aircraft. If any cargo attendant or other passenger suffers from any illness, disability or any other condition known prior to STD that could potentially impact on the operation of the Flight Schedule or require any special equipment, arrangements or adjustments then it is the Client’s responsibility to bring such to the attention of Volanteus any special assistance or arrangements which are required for the Client and/or its passengers to travel on the Flight once known.
3.8 The Client represents and warrants that it and all cargo, cargo attendants and other passengers will hold all Travel Documentation required to secure transit from, through and to any relevant applicable countries, whether or not listed in the Flight Schedule.
3.9 The Client shall provide Volanteus with a full passenger and cargo manifest and all other required documentation in respect of the Flight before the due time specified in the Flight Schedule or at any other time Volanteus may request. All such manifests and documentation shall be provided by email or any other method that Volanteus may request from time to time.
3.10 The Client agrees that Volanteus may distribute the manifest and any other documentation it provides to Volanteus in connection with this Charter Booking Agreement to third parties as may be necessary to enable Volanteus and/or the Operator to perform its obligations to the Client and to comply with all applicable laws.
3.11 The Client warrants that the transportation of the Client, its cargo, cargo attendants, passengers and their baggage will not expose Volanteus, the Operator or any of their employees, servants, agents, insurers or reinsurers to any actual or risk of sanctions, prohibitions or penalties imposed by the laws and regulations of any applicable state, country, national or international governmental organisation. The Client further warrants that none of the cargo is for onward transit to, or use in, Russia or Belarus or any other nation state sanctioned under the laws of the United States of America, the European Union, the United Kingdom of Great Britain and Northern Ireland or any applicable country or applicable government entity which has jurisdiction over the Client.
3.12 The Client warrants that it and its passengers are not restricted persons or restricted organisations in accordance with any sanctions, orders or laws upheld by any of the United States of America, the European Union, the United Kingdom of Great Britain and Northern Ireland or any applicable country or applicable government entity which has jurisdiction over the Client or any of its passengers.
4.1 The Operator is at all times in operational control of the Aircraft and is solely responsible for the completion of the Flight. Accordingly, the captain of the Aircraft and other crew of the Operator are authorized to take all necessary measures to ensure safety and security. They shall have absolute authority and discretion as to whether there shall be any deviation from the specified route and where alternate and/or intermediate landings shall be made. Such determinations shall be binding upon and accepted by the Client and all passengers. The Client acknowledges that Volanteus does not have control over the operations of the Operator, including but not limited to circumstances that are in the interests of the safety of all persons on board the Aircraft.
4.2 the Operator of the Aircraft shall have full authority and discretion regarding the admission or discharge of any passenger, baggage or cargo onto or from the Aircraft. The Client shall accept all decisions of the Operator and follow all directions of the captain of the Aircraft and other crew of the Operator and hereby waives any claim it has against the Volanteus or their respective agents for any costs, fines, expenses, losses or damages of any nature arising from such decisions.
4.3 Client acknowledges and agrees that, the Operator under the Operator Contract, and in connection with the operational control of the Flight and the Aircraft, reserves the right to substitute the Aircraft and/or the Operator at any point with a reasonably suitable alternative Aircraft and/or Operator; provided, however that, if time permits, Volanteus shall use its commercially reasonable endeavours to find a suitable alternative Aircraft and/or Operator to operate such flights and will present all suitable options to the Client prior to any decision being taken. In the event that Volanteus substitutes the Aircraft and/or the Operator, the aircraft or carrier substituted to replace the original Aircraft or Operator shall immediately become the Aircraft or Operator for the purposes of this Charter Booking Agreement and the terms of this Charter Booking Agreement shall apply to the substituted aircraft or operator as if it were the original aircraft or operator.
4.4 If at any time, the Operator becomes ceases flight operations, Volanteus will use its commercially reasonable endeavours to find a suitable substitute Operator and/or Aircraft within a reasonable time frame. If a suitable substitute Operator and/or Aircraft cannot be found, the Client shall be entitled to a refund only if and to the extent that (x) Volanteus has not forwarded the payable amounts to the Operator in respect of the Flight (and can legally refrain from doing so) or (y) Volanteus has received an actual refund of the payable amounts from the Operator (in which case the refund to Client shall be limited to amounts actually received).
4.5 In the event of sections 4.3 or 4.4 occurring, should the cost of a replacement Aircraft and/or Operator exceed the previously confirmed Charter Price (and/or should any sums paid by Volanteus to any Operator or third party not have been recovered by Volanteus), any additional costs in securing an alternative Aircraft(s) and/or Operator shall be payable by the Client; provided that Volanteus shall request approval of any additional costs from the Client prior to confirming a replacement Aircraft(s) and/or Operator and shall not execute an Operator Contract until such consent has been received. The Client acknowledges that Volanteus cannot guarantee the availability of a replacement Aircraft and/or Operator. If Volanteus is unable to secure a replacement Aircraft and/or Operator, Volanteus shall be entitled to cancel this Charter Booking Agreement in respect of such Flight (or any such part of the Flight Schedule as might be affected). Client acknowledges and agrees that Volanteus shall not have any liability or responsibility for its failure to secure a replacement Aircraft and/or Operator.
4.6 The legal recourse of the Client in connection with the provision of a Flight and the performance of an Operator Contract is against the Operator only. If for any reason, the Operator is unable to provide the services for which the Client has contracted for under the Operator Contract, the Client shall only have legal recourse against the Operator and agrees to waive any rights and remedies it may have against Volanteus in respect of the Operator Contract.
4.7 The Operator is, at all times, in sole operational control of the Aircraft, and Client acknowledges and agrees that Volanteus shall have no liability for delays in departures or arrivals for any reason whatsoever, including, but not limited to, Aircraft serviceability, local or national air traffic control issues, crewing delays or shortages, adverse weather conditions, omission of required diplomatic or airport clearances, or factors affecting the Aircraft on an earlier flight.
4.8 Client acknowledges and agrees that Volanteus shall have no liability for any acts or omissions of any nominated handling agents and freight forwarding agents, including for any consequential or indirect loss or damage or any loss of turnover, profit, or earnings, interest, business transactions, currency risks, production risks or pure economic loss of any nature whatsoever and howsoever arising.
4.9 If, for any reason, the Aircraft is diverted from any destination airport, any affected Flight shall be deemed complete when the Aircraft arrives at the airport to which it has been diverted. As the Operator is in sole operational control of the Flight, Client acknowledges and agrees that Volanteus has no liability if the Flight has been diverted for any reason. Volanteus agrees to use its reasonable endeavours to assist the Client and its passengers to reaching the final destination, if possible. Any additional costs that arise under or in connection with such diversion and assistance may be charged to the Client by Volanteus. If at the request of the Client, the Operator agrees to reposition the Aircraft after such diversion, the Client shall be liable for all increased costs and charges that are incurred as a result.
4.10 All flights shall be conducted in accordance with any applicable conditions of carriage (or equivalent) of the Operator, which shall take precedence over the terms of this Charter Booking Agreement to the extent that they overlap and are inconsistent.
5.1 The Charter Price and all other costs and sums due from the Client shall be payable to Volanteus in accordance with the “Charter Price” section within the Confirmation of Booking, as set out in the payment terms specified within the Confirmation of Booking.
5.2 Time for payment of the Charter Price and all other costs and sums due from the Client shall be of the essence. Payment shall be made to Volanteus’ account by bank transfer in cleared funds, in the agreed currency, without set-off, withholding tax or deduction and in accordance with the payment terms set out within the Confirmation of Booking.
5.3 The Charter Price includes all normal operational costs incurred during the operation of the Flight Schedule including the Aircraft, insurance, fuel (unless there is a material increase in the fuel price prior to departure of the Flight), maintenance, landing, parking, aircraft hangarage, ground handling (including any agreed loading or unloading charges), passenger taxes, passenger security charges, standard catering and the remuneration of air crew and the services, unless otherwise advised within the Confirmation of Booking.
5.4 All other costs including, but not limited to, all licence fees, clearance fees, royalties and non-objection fees, baggage screening charges, security fees and taxes, customs duties, increased airline insurance premiums, customs levies, government and local taxes, airport and passenger taxes, connections to and from airports, ground accommodation, de-icing, fuel surcharges, cabin services, additional catering requests, on-board Wi-Fi charges, costs of palletising or packing cargo, the use of any specialist equipment or persons for loading or unloading and all other costs which may be introduced, increased or levied after the date of this Charter Booking Agreement and are payable under the Charter Booking shall exclusively be for the account of the Client, unless otherwise specified within this Charter Booking Agreement. For the avoidance of doubt, the Charter Price does not include any costs of storage of cargo or accommodation of cargo agents or passengers prior to or after the STD or after unloading from the aircraft at any location.
5.5 If there are any additional costs due in relation to the Contract which are not contained within sections 5.1, 5.3 or 5.4, these will be expressly advised within the Confirmation of Booking or upon further notification to Client from Volanteus or the Operator, as may be required from time to time.
5.6 On receipt of the Client’s funds, Volanteus will be responsible for their safekeeping whilst they remain in Volanteus’ bank account; provided, however that Volanteus shall have no duty to segregate such funds or deposit such funds in an interest-bearing account. As soon as any monies due to the Operator or any third party are properly transferred to the Operator or any third party in cleared funds, Volanteus shall bear no further responsibility or liability to the Client in respect of the safekeeping or proper use of such funds by the Operator.
5.7 If payment is not received in full from the Client by the specified due date, without prejudice to any other remedy available to it under applicable law or under this Charter Booking Contract, Volanteus reserves the right to charge the Client interest on the outstanding amount at the rate of 5% per annum above the Bank of England base rate as at the specified date, charged from the specified due date, which shall be compounded monthly, until the time at which the outstanding payment has been fully received in cleared funds by Volanteus; provided, however, that in no event shall the interest rate exceed the usurious interest rate under the laws of the State of New York. Should Volanteus incur any costs associated with the recovery of the outstanding amounts or interest, such as legal fees, it is agreed that the Client will be responsible for these costs on an indemnity basis. The Client shall promptly pay such interest and costs to Volanteus on demand.
5.8 If payment of the Charter Price is not received in full by the specified due date in the Confirmation of Booking, Volanteus shall, without prejudice to any other rights or remedies available to it, reserve the right to treat this non-payment as constituting cancellation of the affecting Flight and/or repudiation by the Client of this Charter Booking Agreement with respect to such Flight. If Volanteus does treat this Charter Booking Agreement as being cancelled or repudiated then without prejudice to the cancellation terms of this Charter Booking Agreement, Volanteus reserves the right to recover cancellation charges, demurrage charges and any additional charges, losses or costs which Volanteus has actually incurred or is irrevocably committed to pay in connection with the Flight prior to such cancellation.
5.9 If the Client, the cargo, any persons acting on its behalf or any cargo attendant or passenger to be carried on the Flight causes a delay in the departure or arrival time of the Aircraft, the Client agrees to pay all demurrage charges which may be levied by the Operator onto the Client and/or Volanteus at such rates as notified to the Client by Volanteus from time to time. The Client further acknowledges and agrees that, notwithstanding such delay, Operator under the Operator Contract may reserve its right to continue with the Flight as scheduled in the Flight Schedule or to cancel the Flight. The aforementioned rights of the Operator shall be without prejudice to any claim the Operator and/or Volanteus may have against the Client in respect of demurrage.
5.10 Should the Client wish to make amendments or cancellations to all or part of the Operator Contract or the terms set out in the Confirmation of Booking, it shall notify Volanteus immediately. Cancellation/amendment charges will be applicable in accordance with the Confirmation of Booking and Volanteus will require these charges to be fully paid per the Payment Terms defined within this Charter Booking Agreement.
5.11 Volanteus shall use its commercially reasonable efforts to highlight any potential additional charges prior to Confirmation of Booking. However, the Client accepts that weather, client or operational delays and passenger decisions on-board the Aircraft, as well as changes to certain costs or charges that relate to the operation of the Aircraft are outside of the control of Volanteus.
5.12 The Client shall be responsible for all costs, charges and expenses incurred by Volanteus and/or the Operator in connection with the provision of any special equipment, materials, accessories, services and facilities which are necessary to meet the requirements of the Client, its cargo and/or any cargo attendant or other passenger under the Charter Booking Agreement, whether or not such requirements were notified in advance.
5.13 The Client shall fully indemnify Volanteus for any costs, charges, fines, expenses, losses or damages incurred by Volanteus and/or the Operator in respect of the Client and/or any of its cargo, cargo attendants or passengers being removed from any aircraft, aerodrome or state by reason of any applicable laws or regulations, breaches of any applicable laws or regulations.
6.1 All Flights are conditional on the timely approval and continued retention of all relevant licences, insurances, traffic rights, permits and/or certifications, and any further licences or authorities which may be required from the relevant authorities for the operation of the Flight by the Operator. If such approvals or retentions are not reasonably possible and a substitute Aircraft or Operator cannot be obtained for any reason, the Flight Schedule shall be cancelled upon written notice being provided by Volanteus to the Client.
6.2 Volanteus shall not be obliged to refund any sums paid by the Client in the event of cancellation under section 6.1 unless and until Volanteus is in receipt of all such sums from the Operator
6.3 If the licences, authorities or other regulatory requirements for the operation of the Flight are not reasonably likely to be obtained in good time or not reasonably likely to be retained, Volanteus reserves the right to cancel the Charter Booking Agreement without any further liability to the Client. Upon such cancellation, Volanteus reserves the right to refund all monies paid by the Client in full within 30 days. Any monies shall be refunded after deduction of any administrative or non-refundable or unrecovered elements of the Charter Price paid to the Operator or any third party and all reasonable costs that Volanteus has incurred in relation to contractual obligations which have already been performed or which can reasonably still be performed, notwithstanding such cancellation.
7.1 The Client may cancel this Charter Booking Agreement at any time prior to STD by notice in writing to Volanteus. Upon such cancellation, the Client will be obliged to make payment to Volanteus according to the cancellation terms set out within the Charter Booking Agreement and the Confirmation of Booking.
7.2 The date on which written notice of cancellation has been received by Volanteus shall constitute the effective date on which cancellation of the Charter Booking Agreement has occurred. If notification is received on a day that is not a Business Day, written notice will be deemed to have been received at the commencement of the next Business Day. Notice of cancellation must be received in written form and followed by a telephone call to a duly authorised representative of Volanteus to ensure the notice has been duly received.
7.3 Without prejudice to Section 7.3, Volanteus shall reserve the right to recover from the Client any additional costs that Volanteus has reasonably incurred or committed in connection with the Charter Booking Agreement prior to cancellation by the Client.
7.4 The Flight cancellation will be considered as confirmed upon acknowledgment of the confirmation of such cancellation in writing by a duly authorised representative of Volanteus.
7.5 Volanteus may terminate this Charter Booking Agreement with immediate effect by notice in writing if the Client becomes insolvent, or enters into any restructuring under the US Bankruptcy Code, or is otherwise deemed unable to pay its debts when they are due..
7.6 If the Client cancels one or more of the flights in the Flight Schedule, the Client shall pay Volanteus cancellation charges based on such proportion of the Charter Price, as set out in the Confirmation of Booking or as Volanteus shall reasonably determine.
8.1 Volanteus shall not be liable for any delay or failure by the Operator to perform any Flight so long as and to the extent that such failure is caused by a Force Majeure Event.
8.2 A Force Majeure Event means any event which is beyond the reasonable control of Volanteus, including (but not limited to) acts of God, acts of any governmental or national authority, explosions, revolutions, riots or civil commotion, acts of terrorism, hijacking, war, national or local emergency resulting in airfield or airspace closures, strikes, industrial disputes or actions, air traffic control issues, fire, lightning, flooding, embargoes, quarantine, adverse weather conditions, requisitions, labour disputes, sanctions, seizure, service bulletins, airworthiness directives, the refusal or error in or revocation of any authorisations or permits required for the Flight or accidents to or failure of the Aircraft or any machinery or any part of it. Volanteus shall inform the Client if it becomes aware of any Force Majeure Event which is likely to cause a delay or cancellation to any flight.
8.3 If there is any actual or heightened threat of a Force Majeure Event which results in the insurance coverage premiums of the Operator being changed or restricted, the Client agrees to be governed by such changes or restrictions and agrees that any Operational or Financial impact will be disclosed to the Client, at which point, the Client agrees to assume any additional costs imposed by the Operator, to enable completion of the Flight.
8.4 Where the Operator and/or the Client is affected by a Force Majeure Event, the obligations of Volanteus shall be limited solely to the reimbursement of all monies that the Client has paid to Volanteus but that have not yet been paid to the Operator or to any other third parties or have not yet been applied by Volanteus in respect of the Flight Schedule and any additional services that are consequently cancelled. Any reimbursement by Volanteus to the Client shall be subject to any non-reimbursable costs and expenses which Volanteus has already incurred at the time of the Force Majeure Event and will be agreed between Volanteus and the Client, in accordance with 8.3.
9.1 Volanteus will be indemnified and held harmless by Client for any misrepresentations of whatsoever nature made to Volanteus or the Operator by the Client or any of its representatives, cargo attendants or other passengers.
9.2 This Charter Booking Agreement does not constitute a contract of carriage. Volanteus is not and will not act in any way as a carrier or an operator of any aircraft or the Operator for the purposes of the Warsaw Convention, Montreal Convention or otherwise. The Client and any passenger or cargo shall be deemed to have contracted for their carriage with the Operator only and all carriage shall accordingly be subject to the standard conditions of carriage of the Operator and all applicable statutes, laws and/or other provisions in respect of liability. The Operator shall at all times be responsible for the Flight.
9.3 Volanteus shall not be liable to the Client or its passengers for non-performance or other breaches, errors or failings by the Operator or its agents of the performance or compliance of the Operator’s obligations in this Charter Booking Agreement or the Operator Contract.
9.4 The Client agrees that the carriage of its cargo, cargo attendants, any other passengers and their baggage are bound by the international carriage conventions as defined under the Montreal Convention, or the Warsaw Convention where the Montreal Convention is not applicable. Any liability in respect of the Client or passengers shall be subject to the provisions of the Montreal Convention or the Warsaw Convention if the Montreal Convention is not applicable. Volanteus and any Operator shall not be liable for any further loss or damage suffered by the Client to cargo or to any cargo attendant, other passenger or their baggage beyond the limits of the relevant convention.
9.5 Notwithstanding any other section in this Charter Booking Agreement but subject to Section 9.6, Volanteus shall not be liable in any event to the Client or any third party for any consequential or indirect loss or damage or any loss of turnover, profit, or earnings, interest, business transactions, currency risks, production risks or pure economic loss of any nature whatsoever and howsoever arising.
9.6 The liability of Volanteus shall not be limited or excluded by any provision of this Charter Booking Agreement to the extent such limitation is restricted or prohibited by law and in particular, nothing in this Charter Booking Agreement shall limit or exclude liability for death or personal injury caused by negligence to the extent prohibited by law or for fraudulent misrepresentation or other fraud.
9.7 Subject to Sections 9.5 and 9.6, the total aggregate liability of Volanteus in respect of the Charter Booking Agreement and the Flight Schedule shall be limited to a sum equal to 100% of the proportion of the Charter Price paid by the Client to Volanteus in respect of the Charter Booking Agreement and/or the Flight Schedule.
9.8 The Client shall not be permitted to sell any or all of any Aircraft’s seating capacity, baggage allowance and/or cargo capacity it or its passengers have been provided with under the Flight Schedule without the prior written consent of Volanteus, which shall be withheld or granted at the absolute discretion of Volanteus. For the avoidance of doubt, Volanteus shall be entitled to sell any or all of the Aircraft seating capacity, baggage allowance and/or cargo capacity available on any Aircraft which has not been designated to the Client or its passengers.
9.9 The Client shall indemnify and hold harmless Volanteus against any claims made by any passenger, owner of cargo, the Operator or any third party that might be brought by reason of any breaches by the Client, passengers or cargo of this Charter Booking Agreement or any damage caused by the Client, the passengers or cargo to any aircraft or any ground equipment.
10.1 The Client shall notify Volanteus prior to the execution of the Charter Booking Agreement, or as soon as practicable if the Charter Booking Agreement has already been executed, of any changes to the cargo to be carried on the Flight. Where the Charter Booking Agreement has been executed prior to the requested change, Volanteus shall use reasonable endeavours to accommodate the changes, but is under no obligation to do so.
10.2 The Client hereby agrees that it shall be fully liable for all increased costs or charges incurred by Volanteus or the Operator as a result of any changes to cargo that the Client requests to be carried on the Aircraft.
10.3 The Client hereby acknowledges that the Operator or its agents are authorised, but not obliged, to inspect and examine any baggage and/or cargo belonging to the Client or its cargo attendants or other passengers and may, at its absolute discretion, refuse to allow any baggage and/or cargo which the Operator considers to be unsuitable for carriage on the Aircraft for reasons including, but not limited to, the nature of the baggage and/or cargo, its packing, documentation, size, shape or weight, or any applicable laws, orders or regulations of any country that the Aircraft is departing from, flying over or arriving at.
10.4 The Client is responsible for ensuring that cargo is appropriately packaged, packed and/or palletised and fit and ready for loading in accordance with all instructions provided by the Operator and with any applicable laws, regulations, rules or guidance. The Client warrants that all baggage and cargo is fit for travel by air and contains no goods or items which are defined as dangerous or otherwise restricted goods under the IATA Dangerous Goods Regulations (DGR). The Client shall be liable for any costs, fines, expenses, losses or damages caused to any Aircraft or any person by the cargo, any cargo attendant or any other passenger.
10.5 Client warrants that all information provided to Volanteus and/or to the Operator about the nature, weight, dimensions, packaging, travel documents and right to fly, or any other detail of the cargo or its transportation is complete, accurate and not in any way misleading. The Client shall ensure that the packaging will protect the cargo from any movement, handling, weather conditions or other elements to which it might be exposed prior to, during or following the Flight.
10.6 Unless otherwise specified in the Confirmation of Booking, the Charter Price shall only include any costs incurred loading, transporting and unloading the cargo and shall not include any ground transportation or warehousing or other storage costs. Where special equipment is needed to load or unload cargo from the Aircraft, it is the responsibility of the Client to ensure that Volanteus and the Operator are made aware of any such requirements prior to the signature of this Charter Booking Agreement.
10.7 The Client shall ensure that the cargo has all necessary documentation, permits or authorities required to allow the cargo to move from its origin to its final destination. Any failure to do so may lead to delay to or cancellation of the Flight Schedule.
11.1 The terms and conditions of this Charter Booking Agreement are strictly confidential to the parties to this Charter Booking Agreement. The parties acknowledge that information exchanged pursuant to this Charter Booking Agreement contains commercially sensitive information and/or proprietary information (“Confidential Information”) which the parties agree to not disclose, share or distribute to any third party without the prior written consent of the other party, save as may be required by law or as may reasonably be required by the parties to perform their respective obligations under the Charter Booking Agreement.
11.2 Volanteus undertakes that its employees, subcontractors and/or any other person for whom they are legally responsible, shall maintain the Confidential Information in strict reserve and secrecy and shall not use, distribute, supply, reproduce and/or disclose it to any person, except in the permitted manner and subject to the terms and conditions of this Contract.
11.3 Volanteus may only use the Confidential Information for the sole purpose of providing the services described herein and may not use it, directly or indirectly, for its own benefit or in any way either during the term of this Charter Booking Agreement or at any time after its termination, for any reason whatsoever.
11.4 Volanteus may not copy, duplicate, or reproduce the Confidential Information or any part thereof without the express, prior and written consent of Client.
11.5 Volanteus shall hold Client harmless against any claim, action, damages, losses, costs, or expenses borne by Client as a consequence of any breach of this confidentiality obligation by Volanteus, its officers or employees, for which it is legally liable.
11.6 Volanteus may not make any public announcement related to the execution or performance of this Charter Booking Agreement without the prior written authorization of Client.
11.7 The obligations set forth in this Section 11 shall remain in force until three (3) years after the termination or expiration of this Charter Booking Agreement.
12.1 This Charter Booking Agreement (including a dispute in respect of the existence, validity or termination of this Charter Booking Agreement or the consequences thereof) shall be governed by and construed in accordance with the laws of the State of New York without reference to conflicts of law other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
12.2 Each party agrees to submit to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan, City of New York, State of New York to settle any claim or matter arising under or in connection with this Charter Booking Agreement.
13.1 Should any provision or part-provision contained within this Charter Booking Agreement become illegal, invalid or unenforceable then it shall be deemed amended to the minimum extent necessary to make that provision or part-provision legal, valid and enforceable. If such amendment is not possible without materially affecting the obligations of the parties under the Charter Booking Agreement, the relevant provision or part-provision shall be deemed deleted. Any amendments or deletions of a provision or part-provision shall not affect the legality, validity and enforceability of any other provision or part-provision of this Charter Booking Agreement.
14.1 This Charter Booking Agreement, together with the documents referred to in it, shall constitute the entire agreement between the parties and shall supersede and extinguish all previous agreements, warranties, promises, representations, undertakings and promises between the parties, whether written or oral, relating to its subject matter.
15.1 Both parties shall not be permitted to assign, transfer, novate, mortgage, charge, subcontract or otherwise deal in any other manner with any part or all of its benefits, rights or obligations under the Charter Booking Agreement to a third party without the prior written consent of the other party, such consent to be granted at the absolute discretion of each party.
16.1 The parties acknowledge that the Client has entered into this Charter Booking Agreement on its own behalf and also that Client is acting as agent on behalf of all passengers and the owners of any goods carried on the Aircraft.
17.1 Subject to the terms and conditions of this Charter Booking Agreement, no variation of this Charter Booking Agreement shall be valid and effective unless it is in writing and signed by the parties or on behalf of the parties by their duly authorised representatives.
18.1 Any communications, notices, instructions and approvals to be given under this Charter Booking Agreement shall be in writing (but excluding fax transmission) and may be served by leaving it at or by sending it by pre-paid first-class post to the intended recipient’s address or by sending it by electronic mail to the intended recipient’s email address. The address details of the parties for service of notices, including the email address, are the address details set out in the Confirmation of Booking or such other address details as a party may notify the other party thereof in writing from time to time.
18.2 A notice given under this Charter Booking Agreement shall be deemed received once it has been acknowledged by the recipient. The parties shall also ensure that all written notices they provide are also communicated verbally to the receiving party to ensure their receipt is acknowledged. If such deemed receipt is not within a Business Day, the notice shall be deemed received at the start of the next Business Day.
19.1 No failure or delay by a party to exercise any right or remedy available to it under this Charter Booking Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
19.2 No single or partial waiver of any right or remedy available to a party under this Charter Booking Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.1 The parties acknowledge that in the event that Volanteus processes personal data relating to the Client and its passengers during the performance of its obligations under this Charter Booking Agreement, Volanteus shall comply with the NYS Information Security Breach and Notification Act (N.Y. Gen. Bus. Law. Section 899-aa ), as may be amended from time to time.
20.2 To enable the performance of the Flight and any additional services in connection with the Charter Booking Agreement, the Client hereby authorises Volanteus to retain and use any personal data belonging to the Client or its passengers and transmit such personal data to any relevant companies involved in the provision of transportation or related services and facilities, data processors working for Volanteus, Volanteus’ agents, government enforcement agencies, credit and payment card companies. The Client acknowledges that the retainment and use of such personal data may involve sending personal data outside the European Economic Area.
20.3 The Client warrants that it has all the necessary authorities, grounds, rights and consents to enable Volanteus to process the personal data for the purposes of this Charter Booking Agreement and that it shall comply with all applicable laws and regulations regarding the processing of personal data.
20.4 Volanteus shall not be held liable for any damages suffered by the data subjects arising from a processor acting outside of Volanteus’ instructions in respect of the processing of the personal data belonging to the Client or its passengers or from events otherwise outside of the reasonable control of Volanteus.
20.5 This Charter Booking Agreement is not exhaustive of the duties owed by Volanteus to the Client under relevant data privacy laws in respect of the personal data belonging to the Client or its passengers or the purposes for which that personal data shall be used by Volanteus. This Charter Booking Agreement shall be read in conjunction with the privacy policy of Volanteus, as amended or replaced from time to time.
21.1 The Parties represent that they have read and agree to perform all activities required by this Charter Booking Agreement and at all times observe the regulations, laws and legislation to combat bribery and corruption, including, but not limited to, the Foreign Corrupt Practices Act (FCPA) (15 U.S.C. § 78-dd-1 et seq, as amended), the UK Bribery Act of 2010 and any other laws designed to combat bribery and corruption and on conflicts of interest applied by Volanteus and/or the Client. In this regard, the Parties undertake not to make or offer, directly or indirectly, payments, gifts, favors, entertainment, travel and/or donations to any employee, service provider, members of the Board or of the various Committees, whether at the national, state and/or municipal level, to political parties and/or to any candidate for political office, under circumstances in which the payment, gift, favor, entertainment, travel and/or donations constitute an illegal payment and/or are given for the purpose of securing an undue advantage or obtaining any benefit from the Public Authority or from such employee, agent or representative;
21.2 The Parties declare that they are not on the sanctions lists of the Office of Foreign Assets Control (OFAC) or on the sanctions list of the United Nations (UN), if it is a legal entity. Furthermore, they declare that their respective legal representatives and shareholders are not on such lists.
21.3 They also declare that they have effective systems and controls in place to prevent slavery, child labor and trafficking in persons in any part of their business and supply chain. Each Party shall, upon request and at any time during the Term, provide to the other Party a sworn statement that it effectively controls and prevents slavery, child labor and trafficking in persons in any part of its business and supply chain); That they will observe the highest ethical standards in the exploitation of their respective rights and in the performance of their respective obligations under this Charter Booking Agreement; That they will act against any fact or claim that is considered fraudulent or corrupt within the scope of this Charter Booking Agreement; That they have read and understood the prohibition of acts of fraud and corruption and undertake to observe the relevant rules; That to the best of their knowledge and belief, they have not incurred in any violation of the rules and policies on fraud and corruption described in this Section 21; That they have not misrepresented or concealed any material fact during the process of negotiating and signing this Charter Booking Agreement; and that to the best of its knowledge, none of its directors, officers or major shareholders have been convicted of fraud and corruption related offenses.
MISCELLANEOUS
Head Office
Volanteus Ltd, 6th Floor, Astral Towers, Betts Way, West Sussex RH10 9UY UK
Cargo Head Office
919 North Market Street, Suite 950
Wilmington, Delaware 19801 US
