Appointment of Limited Agency. Client hereby appoints FCA to act as Client’s specific and limited agent for the purposes of providing the Services, including the negotiations and execution on Client’s behalf of charter contracts with one or more air carriers (as further discussion in Section III below). In no event will FCA act as a principal in its own right with respect to contracting for any charter flight or otherwise with respect to providing the Services. CLIENT SPECIFICALLY AGREES THAT CLIENT’S EXECUTION OF THIS AGREEMENT CONSTITUTES A SPECIFIC AND WRITTEN AUTHORIZATION FOR FCA TO EXECUTE APPLICABLE CHARTER CONTRACTS ON BEHALF OF CLIENT THAT THE CLIENT HAS APPROVED IN ADVANCE IN WRITING, AND THAT CLIENT WILL THEN BE FULLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THAT CHARTER CONTRACT AS IF CLIENT HAD SIGNED THAT CHARTER CONTRACT DIRECTLY. Notwithstanding anything in the foregoing to the contrary, Client acknowledges that in some instances FCA may be required to negotiate with a separate broker or agent acting on behalf of a particular air carrier, and FCA may be required to execute secondary agreements with such brokers or agents on behalf of Client, which FCA may do so long as the actual contractual agreement that is created with respect to the applicable charter flight is by and between Client and the applicable air carrier. Other than when acting within the scope of providing the Services as specifically set forth in this Agreement, FCA will have no authority whatsoever, apparent or explicit, express or implied, to bind Client to any other form of agreement whatsoever with any affiliated or third party.
Assignment. Client or FCA may assign its respective rights and delegate its respective duties under all or any part of this Agreement to a subsidiary, affiliate or parent company by providing written notice thereof. Any assignment to any other third party shall require the prior written approval of the non-assigning party, which approval shall not be unreasonably withheld, conditioned or delayed. A merger or consolidation involving a party, a transfer of all or substantially all of a party’s assets, or a change of control of a party shall not be deemed an assignment of this Agreement.
Authority. Each party represents and warrants to, and covenants and agrees with, the other party, as follows: (a) it is in good standing under the laws of the state of its organization; (b) it has all legal authority and power to enter into this Agreement and to perform its obligations hereunder including, without limitation, all licenses, permits, or governmental approvals necessary or appropriate; and (c) neither its execution of this Agreement, nor the performance of its obligations hereunder, will violate any agreement to which it is a party or is otherwise bound, nor any applicable laws.
Billing and Expense Reimbursement Procedures. The Charter Card Deposit shall be in the amount of $100,000 and Client shall deposit that amount with FCA and replenish the account when the balance reaches $25,000 (the “Charter Card Deposit”). Withdrawals from the account will only be used for 1-aircraft related transactions such as charter and flight charges, landing and deicing fees, ground transportation and catering; and 2-all fees and charges associated with Client’s flights.
Upon completion of Client’s trip, incurred trip expenses will be deducted from the Charter Card Deposit. Additional Charter Card Deposit funds maybe requested to accommodate the Clients specific trip that may exceed the standard Charter Card Deposit. Should Client terminate the relationship, any outstanding trip expenses will be deducted from the Charter Card Deposit, then remaining funds will be dispersed to Client. Client will receive monthly statements from FCA detailing expenses deducted from the Charter Card Deposit.
Catering. Client may request catering at an additional cost which will be paid from the Charter Card Deposit as noted above.
Choice of Law; Venue; Entire Agreement; Amendments; Severability; Interpretation; Counterparts. This Agreement is to be governed by and construed in accordance with the laws of New York, without regard to its conflict of law principles. Venue for any action brought hereunder shall be proper only in the federal and state courts having jurisdiction in the county in which the headquarters of the party against which the action is being brought are located. This Agreement constitutes the entire agreement between FCA and Client with respect to the subject matter contained herein and supersedes all prior agreements, oral or written. This Agreement may only be amended or modified by a written instrument signed by both parties. If any provision herein is held to be invalid, the invalidity thereof shall be severable from the remainder of this Agreement and shall not in any way affect any other covenant, condition or provision herein. In the event of any conflict or discrepancy between these Terms and Conditions and the Agreement to which it is incorporated, the Agreement shall govern. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument.
Compliance with Applicable Laws; Indemnification and Hold Harmless. Both parties shall comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders. Client hereby indemnifies and holds FCA harmless from any loss, cost, expense, or liability that may arise as a result of FCA’s conduct on behalf of Client other than fraud, gross negligence or willful misconduct of FCA, its officers, managers or employees.
Confidential Information. Client and FCA agree (on behalf of themselves and each of their respective affiliates, directors, officers, members, employees and representatives) to keep confidential, the terms of the Agreement and any nonpublic information supplied to it by another party(ies) pursuant to the Agreement, provided that nothing herein shall limit the disclosure of any such information (a) to the extent required by law or to carry out a party’s obligations under the Agreement or these Terms and Conditions, (b) to a party’s counsel, accountants, or auditors, (c) to FCA’s affiliates, (d) to a third party providing subcontract transportation services at FCA’s direction, (e) in connection with any litigation involving a party, or (f) which has been publicly disclosed by someone other than a party to the Agreement.
Force Majeure. FCA shall not be liable for any delay in performance of any of its obligations under this Agreement, due to force majeure, including: acts of God, violence, fire, explosion, action of the elements or weather conditions, or other catastrophe or accident, any legislation, act, order, directive, or regulation of any government or governmental body, labor trouble, delay or failure of carriers, subcontractors or suppliers, certification delays or any cause beyond FCA’s reasonable control. In the event of force majeure, should FCA utilize subcontractors or other alternative modes of performance in order to provide the services herein, such costs shall be pre-approved by Client and billed at FCA’s cost.
Ground Transportation. Client may request ground transportation at an additional cost which will be paid from the Charter Card Deposit as noted in the Billing and Expense Reimbursement Procedures section.
Independent Relationship. FCA and Client agree that they are independent parties, and, except as expressly provided in this Agreement, neither has the authority to bind or make any commitment on behalf of the other, nor are any of either party’s employees entitled to any employment rights or benefits of the other party.
FCA requires minimum coverages be in full force and effect and with such insurers with an AM Best rating of A- or better as follows:
- Bodily Injury & Property Damage Liability and War & Allied Perils Passenger Liability coverages in amounts for each occurrence not less than:
- $200,000,000 USD for large cabin and long-range aircraft
- $100,000,000 USD for mid cabin and super mid-size aircraft
- $50,000,000 USD for light cabin, turbo prop and rotor-wing aircraft
- War & Allied Perils Third Party Legal Liability coverage in the amount for each occurrence and in the annual aggregate of not less than $50,000,000 USD
- Personal Injury Liability coverage in the amount for each occurrence and in the annual aggregate of not less than $25,000,000 USD
- Baggage Liability in the amount per passenger of not less than $20,000 USD
- As minimum coverages are shown above, actual coverage limits may be higher.
- Upon request, FCA shall provide Client with a Certificate of Insurance evidencing the coverages described in this Section.
Limitation of Liability. FCA shall not be liable for any injury, damage, loss expense, indirect, special or consequential damages, or other irregularity caused by the defect of any vehicle or conveyance, or the negligence of any company or person engaged in conveying the passenger or carrying out the arrangements for your trip, or by accident, delay, flight schedule, change, cancellation, sickness, weather, strikes, war, quarantine, or any similar cause. Our liability shall in any case be limited to the amount paid to us, and any claim shall be adjudicated in a governed by the laws of the state(s) in which we have our principal business location.
No Smoking. All flights are operated as non-smoking flights and extra fees for cleaning and downtime may be charged for any breach of this policy.
Non-Solicitation of Employees. Client and FCA shall not, without the other party’s prior written consent, solicit or obtain the services of any person who is employed by the other party at any time during the period extending from the date of this Agreement through twenty-four (24) months following the expiration of the Term, or any earlier termination of this Agreement.
Notices; Designated Representatives. Unless otherwise expressly provided to the contrary in this Agreement, all notices required hereunder shall be in writing and shall be deemed to have been duly delivered if sent by registered or certified mail, return receipt requested and first-class postage prepaid, by nationally recognized commercial overnight courier, by hand delivery, or by e-mail or facsimile (so long as a copy is contemporaneously sent by first-class mail, postage prepaid) addressed to the parties as shown on the CHARTER CARD AND SUPPORT SERVICES AGENCY AGREEMENT. All notices shall be deemed effective upon receipt. Each party may change its address for purposes of providing notice hereunder by delivering written notice thereof in accordance with the foregoing provisions.
Notice and Opportunity to Cure Defaults; Waivers. In the event either party believes the other is in default of any duty or obligation under this Agreement, the party shall send written notice thereof to the remaining party. The party receiving the notice shall have ten (10) days after receipt of such notice to cure any monetary defaults and shall have twenty (20) days after receipt of such notice to cure any non-monetary defaults. Notwithstanding the foregoing, if a non-monetary default, by its nature, cannot reasonably be cured within such 20-day period, such period shall be extended so long as the party is diligently prosecuting such cure to completion. No action or failure to act by either party shall constitute a waiver of a right or duty afforded it or constitute approval of or acquiescence in a breach hereunder except as may be specifically agreed in writing.
Passenger Delays. Client has the flexibility of scheduling their flights for any time they choose, and thus are expected to be on time. If the schedule allows the airplane to wait for a passenger who is late, ground wait charges will apply of $500.00 per hour. In cases where the schedule does not allow the airplane to wait, the passengers will be billed for their flight and the aircraft will depart.
Passenger Documentation. In accordance with the United States Transportation Security Administration (“TSA”) regulations and other Governmental regulations, Client and Client’s authorized guests are required to comply with all TSA regulations and will be required to present valid government issued photo identification prior to departure for all flights. For International flights, Client and each passenger must have a valid passport in his or her possession as well as any required visas or entry documentation that may be required. FCA has the right to refuse boarding to any person that does not have the required documentation or identification, or if such person is not in compliance with TSA or other government regulations without recourse or further obligation to Client.
Passenger Luggage / Weight Restrictions. Client is responsible for notifying FCA at time of booking of the following: total passenger count, accurate weights for each passenger and if any passenger will be carrying in excess of 35 lbs. of luggage. In the event an aircraft is deemed overweight, at the sole desecration of the assigned Pilot in Command, passengers(s) may be denied boarding or flight cancelled if the overweight condition cannot be mitigated. Failure to notify FCA at time of booking (or at any time prior to departure) of weights in excess of the performance capabilities of the airplane does not release the CLIENT from the terms of cancellation.
Passenger Unruly and Disruptive Behavior. Any passenger that is physically or verbally confrontational, indecent, abusive, threatening or uncooperative, including refusal to comply with crew instruction or involved in the illegal consumption of narcotics will result in the termination of the flight without refund. Pilot in Command will land as soon as practical and report any criminal offense to the applicable authority in the State of landing for prosecution.
Peak Travel Days. Any 7 (seven) days prior to, on, or 7 (seven) days after New Year’s Day, Martin Luther King Jr. Day, President’s Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas.
Pets. Client shall notify FCA of any pets that may be traveling when scheduling a flight as certain restrictions may apply. Client is responsible for all activity of their pets on-board the aircraft and any liabilities related thereto.
Potential Additional Charges. Additional costs such as Crew Duty Days, Ferry Fees, Fuel Surcharges and High-Density Airport fees may be incurred on any trip and will be paid from the Charter Card Deposit as noted in the Billing and Expense Reimbursement Procedures section.
Prohibited Items. Client is responsible for notifying all passengers that FCA and other approved direct air carriers will not transport any items classified as Hazardous Materials (HAZMAT) by the U.S. Department of Transportation, items prohibited by the U.S. Transportation Security Administration or illegal substances. Please refer to http://www.tsa.gov for clarification of what items are prohibited and direct any questions to your Service Representative, prior to your flight. Medical grade oxygen, pressurized containers, wheelchairs with spillable batteries are a few examples of prohibited items. Failure to notify FCA at time of booking (or at any time prior to departure) of prohibited and/or illegal items does not release the Client from the terms of cancellation and customer/passengers will be held liable.
Taxes. Taxes levied on Client trips will be the responsibility of Client and will be paid from the Charter Card Deposit as noted in the Billing and Expense Reimbursement Procedures section.
Termination. The Agreement may be terminated at any time by the Client upon thirty (30) days written notice to FCA. Upon such termination all monies less any incurred expenses in the Charter Card Deposit will be returned to Client immediately.
The Agreement may be terminated by FCA upon written notice to Client of (i) any passenger of Client that threatens or assaults a crewmember or violates criminal, safety or security laws of the location of the aircraft, (ii) within 10 days of notice of nonpayment, insolvency or bankruptcy or (iii) within 30 days of notice of an uncured breach.
Trip Scheduling / Booking Notice.
Client agrees to provide its desired flight schedule and related information as far in advance as reasonably possible and no later than:
- Domestic US Travel – 48 hours
- International Flights – 7 days
- Peak Travel Days – 72 hours
Trips that can be scheduled that do not meet the above scheduling requirements will incur a $1,500 per occupied hour short notice fee.
Trip Cancellation Policy. The general trip cancellation policy is as follows; however, the Flight Brief shall govern.
- Domestic US Travel:
- Flights cancelled within 96 hours of scheduled departure are subject to a cancellation fee of 50% of quoted amount
- Flights cancelled within 72 hours of scheduled departure are subject to a cancellation fee of 100% of quoted amount
- International Flights:
- Flights cancelled outside of 96 hours from scheduled departure are subject to any international fees incurred. Fees include permits and crew hotel rooms
- Flights cancelled within 96 hours of scheduled departure are subject to a cancellation fee of 50% of quoted amount plus any fees incurred
- Flights cancelled within 72 hours of scheduled departure are subject to a cancellation fee of 100% of quoted amount
- Peak Travel Days:
- Flights which are scheduled during any period 7 (seven) days prior to, on, or 7 (seven) days after the New Year’s, Martin Luther King Jr. Day, President’s Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas which are cancelled with less than 10 (ten) business days of the scheduled departure date are subject to a 100% cancellation fee of the net quoted price
- One-Way Scheduled Flights:
- All ONE-WAY flights upon signing of quote or agreement are subject to a cancellation charge of 100% of quoted price.
- FCA Managed Fleet: The cancelation terms will differ per aircraft and based on whether the aircraft is operated by FCAS or by an approved alliance partner. The terms of the aircraft can always be found on the quotes sent to the client for approval.
Vetting of Aircraft / Operators. For any trips performed outside of FCAS’s fleet, FCA shall utilize only aircraft/operators that have been vetted by a third-party safety auditor, and currently hold active ratings with said auditor. Auditors and ratings include but are not limited to, ARG/US Gold (or better), Wyvern Pass (or better) or IS-BAO.
Weather and Safety. FCAS and other approved direct air carriers adhere to strict safety and weather criteria for the safe operation of all flights. Turboprop and Light Twin aircraft are not authorized to depart when any type of de-icing fluid is required or recommended. All turbine powered aircraft are not authorized to operate in or out of any airport where winds at time of arrival or departure exceed 37 knots either sustained or gusting in any direction. Light Twin aircraft are limited to operations where wind does not exceed 27 knots either sustained or gusting in any direction. FCAS complies to a strict Safety Management System using a Flight Risk Assessment Tool (FRAT). In the event a flight is determined to exceed preset standards, our flight operations team will work with you to mitigate risk. If the risk cannot be mitigated, the flight will be delayed or cancelled as necessary. If a reasonable solution was offered but not accepted a cancellation penalty will apply.