The following Terms & Conditions are an integral part of the Charter Procurement Agreement (“CPA”) and govern the relationship between The Charter Store (“TCS”) and the Client as to all services provided by TCS.
1. PURPOSE OF CONTRACT
1.1. The purpose of this CPA is for TCS to procure and arrange the air-cargo charter flight(s) identified in the CPA Schedule (the “Flight”) and ancillary services on behalf of the Client.
2. THIRD PARTY SERVICE PROVIDERS
2.1. In the course of its duties and in its capacity as Air Charter Broker and agent / bona fide agent for Client, TCS will procure certain third party services necessary for the securing of the Flight identified in the CPA Schedule and ancillary services related to the Flight, including, but not necessarily limited to, the services of the identified air carrier. Additional third party services may include the loading and/or unloading services of ground personnel and the pickup and/or delivery services of motor carriers. For these purposes, the Client entrusts TCS to contract such services from third parties in the name of either the Client or TCS, but in all events in the exclusive interest of the Client.
2.2. The Client shall be responsible for preparing, executing and submitting all requisite documentation for importation / exportation (including, but not limited to, traffic documents such as air waybills) as may be required for performance of the Flight and any ancillary services identified in the CPA Schedule. In the event TCS undertakes to do so in its sole discretion, the Client additionally entrusts TCS to prepare and execute any such requisite documents on the Client’s behalf and the Client agrees to provide TCS all necessary information and assistance to accurately complete such documents within required time constraints.
2.3. TCS shall use all reasonable best efforts to ensure such agreements concluded with third parties will contain the obligation of such parties to operate the Flight and perform ancillary services as described in the CPA Schedule. This shall in particular include the obligation of the identified air carrier to make the aircraft available and to provide the necessary flight-deck crew.
2.4. In the event that TCS arranges for any motor carriage, including but not limited to for purposes of cargo pickup prior to the Flight and/or delivery subsequent to the Flight, TCS does so as an ancillary service exclusively in TCS’ capacity as agent and/or property broker. TCS does not arrange for motor carriage as a freight forwarder under any CPA.
2.5. The CPA is an agency agreement and is not a contract for carriage. TCS is neither an air carrier nor motor carrier of any type and is in no manner directly involved in operating the Flight, supplying the aircraft or crew, or performing any additional services which may have been contracted by TCS for this purpose. Notwithstanding anything contained herein, and in accordance with general principals of agency, the Client shall be fully bound by the terms and conditions of the nominated third party service provider(s), including but not limited to contracts for carriage, as accepted by TCS on Client’s behalf. Such terms and conditions of third party service providers are available for the Client’s review upon request, although TCS’s acceptance of such third parties’ terms and conditions on the Client’s behalf is in no way contingent upon the Client’s prior review and approval, unless specifically so agreed in writing.
2.6. The Client shall be exclusively responsible for all obligations under the agreements with third party service providers which by their nature can only be fulfilled by the Client or its agents or customers (including, but not limited to, timely and proper delivery of legitimate and properly documented and described cargo which is packed to withstand the ordinary rigors of transportation and so as not to injure or damage any persons, goods or property). The Client shall be responsible and liable and bear all costs and expenses due and owing third party service providers pursuant to their terms and conditions as agreed on Client’s behalf by TCS.
3. FLIGHT CONTINGENCIES
3.1. The Flight is subject to traffic rights/governmental permits being granted in due time prior to scheduled departure. Traffic rights/permits are to be considered being granted in due time if the flight can be operated as scheduled. In the event that the air carrier will not be granted the relevant traffic rights/permits this instance shall be for the account of the Client. Therefore, if the Flight in question will not materialize for this reason, all cost which may have accrued (e.g. pre- and/or post transport, positioning of aircraft to/from the airport of departure/destination) shall be born by the Client. Realization of the Flight is subject to approval of requested slots and handling times.
3.2. The maximum payload of the aircraft deployed is pending actual flight routing and weather conditions and as such may be subject to reduction. The remuneration under this CPA shall not be affected by any such payload reduction.
3.3 The designated air carrier and/or captain of the aircraft shall have complete discretion concerning preparation of the aircraft for flight, whether or not a flight shall be undertaken or abandoned once undertaken, any deviation from proposed route, where landing shall be made and all such other matters relating to the operation of the Aircraft and the Client shall accept all such decisions as final and binding. All ground and operating personnel are authorized to take orders only from the designated air carrier and/or captain of the aircraft absent specific written agreement having first been obtained from the Carrier under which certain defined instructions may be accepted from Client personnel. Flight diversions may result in extra costs and charges beyond the total charter price.
4. CANCELLATION & REFUND POLICY
4.1. In the circumstances of cancellation of the Flight by the Client or the Flight not coming to fruition for reasons attributable to the Client, the Client shall have to pay the cancellation fees agreed upon in the CPA Schedule. TCS will refund to the Client any payments received under the CPA less the agreed cancellation fees and any amount accrued with third party service providers.
4.2 In the event a third party service provider is unable to perform for any reason, TCS shall use reasonable efforts to find an alternative suitable third party service provider and shall have the right to engage such an alternative third party service provider on the Client’s behalf. In the event that TCS is able to arrange an alternative third-party service provider, but only at an additional cost, TCS shall notify the Client who shall have the option to use the alternative third party service provider for additional charge, or be refunded the affected portion of the charter price.
5. DELAY & DEMURRAGE
5.1. If the Flight is delayed or equipment detained for reasons attributable to the Client, its agents or customers, the Client shall pay the demurrage fee agreed upon in the CPA Schedule.
6. REMUNERATION & INVOICING
6.1. The Client shall pay the agreed-upon total charter price and at the time for payment as set forth in the CPA Schedule. If the Client fails to make payment per the CPA Schedule, then this shall be considered as a cancellation of the Flight for reasons attributable to the Client, per clause 3.1 above. Any claim against TCS or a third-party service provider is mutually exclusive from the charges owed under the CPA and the Client shall therefore under no circumstances withhold payment, sums or any other charges owed under the CPA.
6.2. The total charter price is valid only for the agreed-upon CPA Schedule and includes the third party services described in the CPA Schedule and the fee of TCS, unless otherwise noted within the CPA Schedule. All charges must be paid by Client in advance, although the granting of credit to Client by TCS in its discretion shall not be considered a waiver of charge. Some charges may arise after the conclusion of the Flight and if advanced by TCS shall be immediately reimbursed by the Client. In the event of an Act of God defined in clause 7.5 below – to include flight diversion as a result of weather – additional costs or charges may apply and Client shall reimburse moneys advanced by TCS therefore.
6.3 In case of any rescheduling due to reasons attributable to the Client, TCS reserves the right at its sole discretion to raise the total charter price or consider the Flight cancelled for reasons attributable to the Client, per clause 4.1 above.
6.4 In any referral for collection against Client for moneys owed to TCS, upon recovery by TCS, the Client shall also pay the expenses of collection and/or litigation, including reasonable attorney fees.
7. LIABILITY & CLAIM PROCEDURE, INSURANCE
7.1. TCS shall use reasonable care in its selection of third party service providers, who shall be deemed direct servants of the Client. In accordance with general principals of agency, TCS accepts no responsibility for the acts / errors / omissions of third party service providers, the condition of the aircraft or any damage / delay / loss sustained by the Client (or any cargo interest) arising out of or in connection with the use of the aircraft. Contractual or statutory claims arising out of the performance of third parties shall be brought by the Client directly against the responsible third party service provider. Where necessary to pursue such claim(s), TCS will assign any and all rights however founded against third party service providers to the Client. In coordination with the Client, TCS will use its best efforts to protect and preserve any claims of the Client against third party service providers and will reasonably cooperate in the Client’s prosecution of any claim against third party service providers.
7.2 The third party service providers secured by TCS limit their liability. TCS will request excess valuation coverage only upon specific written instructions from the Client, in which event the Client agrees to pay commensurate charges. In the absence of the Client’s written instructions or the refusal of third party service providers to agree to a higher declared value, at TCS’ discretion, the third party service provider may be engaged under their limitation of liability to which the Client will be bound. It is understood between the parties that the cargo tendered by the Client to third party service providers is independently insured or self-insured; TCS is under no obligation to procure insurance on Client’s behalf unless specifically requested to do so in writing and confirmed by TCS in writing, in which event the Client shall pay all premiums and costs in connection with procuring the requested insurance.
7.3 The Client acknowledges and agrees that third party service providers reserve the right to, in good faith, refuse carriage of cargo under any circumstances, including, but not limited to, where the cargo is prohibited, unsuitably packed, improperly marked, inadequately marked and/or dangerous.
7.4 The liability of TCS for performance of its own agency services is limited to two percent (2%) of the total charter price per Flight secured or to be secured. As a condition precedent for TCS liability, Claims against TCS must be made in writing and received by TCS within ten (10) days of the event giving rise to claim. All suits against TCS must be filed and properly served upon TCS within one (1) year from the date of the event giving rise to the suit.
7.5 Neither TCS nor any third-party service provider shall be held responsible for any non-or mal-performance due to Acts of God, but TCS shall be obliged to use all reasonable efforts to inform the Client in due time so that efforts of mitigation may be undertaken as may be possible. Acts of God shall include civil war, warlike action, riots, insurrections, civil disobedience, fire, flood, explosion, earthquake, hurricane, typhoon, epidemic or quarantine restriction, governmental regulation, labor strike, weather events or any other event beyond the control of TCS and third-party service providers.
7.6 INSURANCE DISCLOSURE>> Insurance maintained by TCS is in addition to and separate and apart from Cargo Liability, Public Liability, Ground Risk Hull and In-Flight Liability Insurance coverages maintained by the air carrier. TCS maintains the following independent insurance coverages: Commercial General Liability Insurance with a $1-mil per-occurrence limit and $2-mil general aggregate limit; Errors and Omissions Liability Insurance with a single combined limit of $1-mil; and Non-Owned Aircraft Liability Insurance with a single combined limit of $1-mil. Insurance coverages maintained by TCS shall never create liability not otherwise existing nor increase TCS’s liability otherwise limited.
8. DUTY TO INDEMNIFY
8.1 The Client shall indemnify and hold TCS harmless against costs, expenses or liabilities incurred as a result of: (a) any act, error or omission of third-party service providers engaged for the Client’s benefit; (b) any direction of competent government authority; and (c) any cause attributable to the Client, its officers, agents, employees or customers. The Client shall also indemnify and hold harmless third-party service providers against loss, damage, liabilities, costs or expenses incurred as a result of direction of competent government authority or a cause attributable to the Client, its officers, agents, employees or customers. The Client’s duties to indemnify survive the termination of the CPA.
9. EXCLUSIVE AGREEMENT, NON-ASSIGNABILITY & WRITTEN COMMUNICATIONS
9.1. In the event TCS secures and arranges ancillary services related to the Flight, as identified in the CPA Schedule, such services shall be considered a part of and subject to the CPA. The Client cannot assign any of its rights under the CPA absent written permission of TCS.
9.2 Engagement of TCS and/or commencement of services by TCS constitutes acceptance of these CPA terms and conditions. Terms of the CPA may only be modified, altered or amended in writing signed by both TCS and the Client; any attempt to orally or unilaterally modify, alter or amend terms of the CPA shall be null and void. Any Client purchase order terms and conditions (or analogous Client terms and conditions) shall not increase the liability of TCS under these CPA terms and conditions and shall not apply to any services by TCS to the extent inconsistent with these CPA terms and conditions, unless TCA explicitly and unambiguously agrees in a formal signed writing. All messages and correspondence in connection with the CPA shall be given in writing, i.e. facsimile, mail or e-mail with clear reference to the CPA number.
10.SEVERANCE CLAUSE
10.1 If a term herein is invalid, the remaining terms shall be unaffected and the invalid term will be replaced by a valid provision accomplishing the intentions of the invalid provision to the extent possible.
11. JURISDICTION
11.1. The Client agrees that all claims or disputes against TCS hereunder or questions arising out of the CPA shall be determined solely before a United States court at the place of flight origin or destination, as applicable, to facilitate litigation participation of the third party service provider(s) engaged by TCS, as may be appropriate. The Client and TCS agree that equity and judicial efficiency require that a single action shall resolve all claims, disputes, or questions arising out of the Flight.