Terms & Conditions
1. CHARTER OF AIRCRAFT
1.1 This schedule together with the Flight Confirmation contain the terms and conditions upon which the Carrier is willing to charter the Aircraft to the Charterer for the Flight(s) specified in the Flight Confirmation .
1.2 The Aircraft shall be made available by the Carrier to the Charterer for the performance of the Flight(s) on the date(s) specified in the Flight Confirmation.
1.3 The Charterer acknowledges that the Charter Contract does not involve the transfer of possession or control of the Aircraft to the Charterer or the creation of any interest in the Aircraft in favour of the Charterer.
1.4 The charter of the Aircraft by the Carrier to the Charterer for each Flight is conditional upon the Carrier having received prior to the date of the relevant Flight(s):
(a)all necessary permissions, consents, licences and approvals from the relevant authorities for the operation of such Flight(s) by the Aircraft; and
(b)payment of all sums, including but not limited to the Charter Price, due and payable by the Charterer on or before date)s) specified in the Flight Confirmation.
1.5 The charter of the Aircraft by the Carrier to the Charterer for each Flight is further conditional upon:
(a)none of the events specified in Clause 8.4 of these Terms and Conditions having occurred and continuing on the date on which such Flight is scheduled to or does take place;
(b)no event or circumstance having occurred as at or prior to the date on which any Flight(s) is scheduled to or does take place which with the passage of time, the giving of any notice or any determination of materiality would constitute an event falling within the provisions of clause 8.4 of these Terms and Conditions.
2.DEFINITIONS AND INTERPRETATION
2.1 In these Terms and Conditions the following words and phrases shall have the following meanings:
“Aircraft” means the aircraft described in the Flight Confirmation or such other aircraft as may be made available by the Carrier to the Charterer pursuant to the Charter Contract;
“Business Day” means a day other than a Saturday or Sunday on which banks in London, England are open for the transaction of business;
“Carrier” means Titan Airways Limited (company number 2212225) whose registered office is at Enterprise House, Stansted Airport, Essex CM24 1RN;
“Charterer” means the person, firm, body corporate or other entity, as specified in the Flight Confirmation, chartering or offering to charter the Aircraft from the Carrier;
“Charter Contract” means the contract between the Carrier and Charterer for the charter of the Aircraft on and subject to the terms and conditions set out in these Terms and Conditions and the Flight Confirmation;
“Conditions” means the Carrier’s General Conditions of Carriage in force and effect;
“Convention” means whichever of the following instruments is or are applicable:
the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (hereinafter referred to as the “Warsaw Convention”)
the Warsaw Convention as amended at the Hague on 28 September 1955
the Warsaw Convention as amended by Additional Protocol No 1 of Montreal (1975)
the Warsaw Convention as amended at The Hague and by Additional Protocol No 2 of Montreal (1975)
the Warsaw Convention as amended at The Hague and by Additional Protocol No 4 of Montreal (1975)
Guadalajara Supplementary Convention (1961)
The Convention for the Unification of Certain Rules for international Carriage by Air, signed at Montreal on 28 May 1999;
“Crew” means the flight deck, cabin crew (if applicable) and ground staff of the Carrier;
“Flight(s)” means the flight(s) specified in the Flight Confirmation and, unless the context otherwise requires, shall be construed so as to refer to an entire Rotation and not to an individual Sector alone;
“Flight Confirmation” means the flight confirmation sheet signed by the Charterer to which these Terms and Conditions shall be deemed to be attached;
“Off Slot Operations” means any operation of take off or landing which is conducted outside the parameters of the relevant take off or landing slot allocated to the Carrier at the airport in question;
“Regulations” means the Civil Aviation (Air Travel Organiser’s Licensing) Regulations 1995 and any statutory modification or re-enactment thereof;
“Regulatory Authority” means the Civil Aviation Authority of the United Kingdom and/or where the context so admits, the European Aviation Safety Agency; and/or the Joint Airworthiness Authority;
“Rotation” means a series of successive Sectors beginning and ending (but for the effect of any alteration in routing made pursuant to Clause 10.3 or by the captain of the Aircraft in the exercise of his discretion pursuant to clause 5.8 of these Terms and Conditions) at the airport of origin;
“Sector” means either any outbound or inbound sector of any Flight;
“State of Registration” means the state in which the Aircraft is registered;
“Traffic Documents” means all passenger tickets, baggage checks, airway bills or other applicable documentation required under the Convention or other applicable law.
In these Terms and Conditions, unless the context otherwise requires:
(a)the singular includes the plural and vice versa;
(b)any reference to Clauses are to be construed as references to clauses of these Terms and Conditions;
(c)a reference to any gender includes both genders;
(d)headings are for convenience only and shall not affect the interpretation of these Terms and Conditions;
(e)a reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;
(f)any reference to the Carrier or the Charterer includes its permitted successors and assigns;
(g)any reference to any law, regulation, treaty, decree, order or judgment includes any changes to it and any replacement for it;
(h)any reference to a person includes any individual person, any partnership, any form of corporate or business association, trust, incorporated association, joint venture, governmental authority or other entity of whatever nature.
3. CHARTER PRICE AND PAYMENT
3.1 The Charterer shall pay to the Carrier the Charter Price at the time(s), in the currency, in the amount(s) and to the bank account specified in the Flight Confirmation:
3.2 The Charter Price may only be varied by the Carrier, at the Carrier’s discretion, to reflect any:
(i) increase due to any governmental action including without limitation the imposition of new or the revision of existing duties, taxes, imposts or dues or variations due to other unforeseen circumstances; or
(ii) variations due to carbon taxes; or
(iii) variations due to the cost of aviation fuel, transportation charges and through put charges, taxes or duties.
3.3 The Charter Price does not include Value Added Tax. If and to the extent that Value Added Tax or any equivalent tax is chargeable on the Charter Price (or any interest thereon), or on any sum payable in respect of supplies made by the Carrier to the Charterer pursuant to or arising from the Charter Contract, then reference hereunder and/or in the Flight Confirmation to the payment of any such sums shall be deemed to be reference to payment of that sum together with Value Added Tax or any equivalent tax thereon at the appropriate rate. The Charter Price is also subject to variation in the event of any increase in or any new taxes, imposts and similar charges such as minimum pricing being imposed by any competent fiscal or regulatory authority, but shall be exclusive of any corporate or income taxes on Carrier’s net revenues.
3.4 The Charter Price shall include the cost of fuel, insurance, maintenance, oil, fluids, route and terminal navigation charges, Eurocontrol, landing, parking, ground handling, cleaning, and cabin service to passengers during a Flight, the remuneration and expenses of Crew and any other costs or expenses expressly specified in the Flight Confirmation. All other costs and expenses shall be for the account of the Charterer.
3.5 Unless otherwise expressly specified in the Flight Confirmation, the Charter Price excludes the cost of all overflying, diplomatic and slot clearances and catering, as well as all passenger taxes, passenger service charges, air passenger duty, baggage screening charges and security charges and other similar charges or taxes for which the Carrier may be or become liable. The Charterer shall indemnify and hold harmless the Carrier from and against all such taxes, duties and charges which shall be invoiced by the Carrier to the Charterer and the Charterer shall make payment to the Carrier promptly upon receipt of invoice.
3.6 The Charterer undertakes to pay or reimburse to the Carrier any ancillary charges that may be incurred in the execution of the Flight(s) which are not included in the Charter Price (including without prejudice to the generality of the foregoing all airport, customs, transportation and other taxes, town, terminal and passenger transfer charges to and from the departure and arrival airports unless otherwise specifically agreed to the contrary herein, clearance fees, customs duties, ground accommodation, services to passengers and airport duty) and will indemnify and hold harmless the Carrier against payment thereof.
3.7 All payments under the Charter Contract shall be made without any set off, counterclaim withholding or deduction of any kind whatsoever. If, at any time, any applicable law(s), regulation(s) or regulatory requirement or any governmental authority, monetary agency or central bank requires the Charterer to make any deduction or withholding from any payment(s) or sum(s) due to the Carrier under or arising from the Charter Contract, then the Charterer shall pay to the Carrier such additional amount(s) to ensure that, after the making of such deduction or withholding, the Carrier receives a net sum equal to the amount which it otherwise should have received without such deduction or withholding.
3.8 If there shall be any deviation from the terms of the Charter Contract through the action or inaction of or at the request of the Charterer, the Charterer shall in addition to the Charter Price pay to the Carrier any costs, charges or expenses incurred by the Carrier arising out of such deviation.
3.9 If the Charterer fails to make any payment in the manner and at the time stipulated herein, the Charterer shall pay to the Carrier on demand interest on the amount unpaid at the rate of [four per cent (4%) above the base rate per annum of the Bank of England] from the date the amount became due until the date of actual payment (both before and after judgment).
3.10 Except as otherwise expressly provided in these Terms and Conditions, the Charterer shall indemnify the Carrier from and against all present and future taxes, duties, payments, fees, surcharges or other charges of whatsoever nature in relation to the Flight(s) or the Charter Contract (other than corporation tax imposed upon the overall net income, profits or gains of the Carrier) which may be levied or imposed on the Carrier by any government, department, agency, province or other political subdivision or any other authority having similar power.
4.1 All carriage performed pursuant to the Charter Contract shall be subject to the Carrier’s Conditions.
4.2 A copy of the Carrier’s Conditions may be inspected on demand at the office of the Carrier and the Charterer shall be deemed to have notice of them whether or not shall have availed itself of its right to inspect them.
4.3 The Charterer shall ensure that all Traffic Documents are completed in such form as the Carrier may require as soon as practicable and that all properly completed Traffic Documents are delivered to all passengers and/or shippers in accordance with the requirements of the Carrier’s Conditions and/or all applicable laws, regulations, treaties, conventions and directives.
4.4 The Charterer shall procure that the Carrier’s Conditions are incorporated in all contracts it makes with any passengers and/or freight forwarders or shippers in respect of any Flight(s) and/or Sector(s).
4.5 The Carrier may, in any event, without any liability to the Charterer or to any passenger:
(a) Refuse to carry any passenger unless satisfied that the Charterer or any sub-charterer by or through whom accommodation on that Flight has been made available to that passenger holds, if required to do so, an Air Travel Organiser’s Licence and/or other requisite permission or authority entitling him so to do; and
(b) Refuse to carry or remove en route, if appropriate, any passenger or his baggage where, in the exercise of its reasonable discretion, the Carrier decides that:
(i) such action is necessary for reasons of safety;
(ii) such action is necessary in order to comply with any applicable laws, regulations or orders of any state or country to be flown from, into or over;
(iii) the conduct, status, age or mental or physical condition, including impairment from alcohol or drugs, of the passenger is such as to:
(A) require special assistance of the Carrier;
(B) cause discomfort or make himself objectionable to other passenger(s); or
(C) involve any hazard or risk to himself or other persons or to property;
(iv) such action is necessary because the passenger has failed to observe the instructions of the Carrier;
(v) the passenger has failed to submit to or pass any security check;
(vi) the passenger’s baggage has not been cleared by all appropriate baggage screening checks;
(vii) any monies due and owing to the Carrier from the Charterer under the Charter Contract remain unpaid;
(viii) the passenger does not appear to be properly documented;
(ix) the passenger may seek to enter a country through which he is in transit;
(x) the passenger may destroy his or her documentation during flight;
(xi) the passenger will not surrender travel documents to be held by the Crew, against receipt, when so requested by the Carrier;
(xii) the person presenting the ticket cannot prove that he is the person named on the ticket or the ticket otherwise appears to have been acquired unlawfully or otherwise than from the Carrier or Charterer (if authorised by the Carrier to issue Traffic Documents) or has been reported as being lost or stolen or is a counterfeit; or
(xiii) the passenger is not in possession of a valid ticket or any part of the passenger’s ticket has been mutilated, altered by anyone other than the Carrier or Charterer (if authorised so to do) or is presented without the passenger coupon and all unused flight coupons; or
(xiv) the passenger’s attire and/or articles carried or to be carried by the passenger are likely to be offensive to any other passenger(s) and/or member(s) of the Crew.
4.6 In the event that it is necessary in the reasonable opinion of the captain of the Aircraft or the Carrier for the Aircraft to be diverted in flight for the purpose of removing any passenger in accordance with the provisions of Clause 4.5 above (whether by reason of the passenger’s conduct or physical or mental condition or for any other reason there set out), the Charterer shall indemnify the Carrier against any losses, costs, expenses, claims or liabilities which the Carrier may incur as a result thereof.
5. FLIGHT TIMES, LOADING AND EMBARKATION
5.1 Flight times and/or schedules as set out in the Flight Confirmation or as otherwise quoted by the Carrier to the Charterer, are approximate estimates only and are not guaranteed by the Carrier, who shall be entitled at any time to deviate from such Flight times and/or schedules.
5.2 Unless stipulated in EC Regulation 261/04 or any other national law the Carrier shall not be responsible for the provision or cost of providing any accommodation, refreshments, meals or for any additional costs, losses or damages incurred by or in respect of any passengers as a consequence of any delay, deviation or diversion of any Flight or Sector, whatsoever the cause (“Claims”) except where the delay, deviation or diversion of such Flight or Sector is a direct result of the unserviceability of the Aircraft and such unserviceability is due to technical reasons within the control of the Carrier. In such circumstances, the Carrier shall provide, at its own cost, such meals, surface transport and hotel accommodation as the Carrier may consider to be reasonably required.
5.3 Should any passenger(s) fail to arrive at the specified check-in point by the time required, the Aircraft may depart as scheduled without such passenger(s) and the Carrier shall be deemed to have completed its contractual obligation to the Charterer and shall in no way be responsible for, or liable to, any such passenger(s) or the Charterer.
5.4 The Carrier shall not be obliged to delay any departure beyond its scheduled time of departure. If, in the Carrier’s opinion, it is necessary to do so by reason of:
(a) any passenger or his baggage not being ready for embarkation as provided for in Clause 7.6 below; or
(b) any act or omission or default on the part of the Charterer or any person acting on its behalf or any passenger carried or to be carried on such Flight;
the Carrier shall be entitled to cancel the affected Flight(s) or Sector(s) and the balance of the Rotation of which such Flight(s) or Sector(s) form part. Where any Flight, Sector or the balance of a Rotation is so cancelled, the Carrier will be entitled to recover the cancellation charges from the Charterer calculated in accordance with the provisions of the Flight Confirmation as if the Charterer had cancelled such Flight, Sector or the balance of the Rotation on the date the Carrier did so. Where an individual Sector or Sectors not amounting to an entire Rotation is to be cancelled, the Charterer shall remain liable for the full Charter Price in respect of the relevant Flight.
5.5 If any departure or arrival of an Aircraft hereunder shall be delayed by reason of:
(a) any passenger or his baggage not being ready for embarkation as provided for in Clause 7.6 below; or
(b) any act omission or default on the part of the Charterer or anyone acting on its behalf or any passenger carried or to be carried on such Flight;
then the Carrier shall be entitled to be paid by the Charterer the full amount of all loss, damage, costs and expenses (including any claims, charges, penalties or other costs or damage resulting from Off Slot Operations at the airport of departure or arrival or from the consequences thereof) which the Carrier may suffer or incur as a result of the delay, together with flight demurrage at a rate of [ • ] per hour or part thereof.
5.6 The Carrier shall be entitled to use any part of the carrying capacity of the Aircraft in excess of that specified in the Flight Confirmation and any part of the carrying capacity specified in the Flight Confirmation left unused by the Charterer on any Flight without any compensation payment, reduction or refund becoming due to the Charterer.
5.7 Loading and unloading the Aircraft shall be at the Charterer’s expense and the Charterer shall provide such equipment and material for the packing and securing of items to be carried in the Aircraft as the Carrier may reasonably require or as may be required to comply with any decision of the captain of the Aircraft under clause 5.8.
5.8 The captain of the Aircraft shall have absolute discretion in relation to the following:
5.8.1 what load may safely be carried in the Aircraft;
5.8.2 how the load shall be distributed;
5.8.3 whether, when and how a flight may be safely and legally undertaken;
5.8.4 where and when the Aircraft should be landed;
5.8.5 refusal to carry any passenger, baggage or cargo; and
5.8.6 all matters relating to the operation and safety of the Aircraft.
5.9 In relation to all of the matters referred to in clause 5.8 above, the Charterer agrees to accept all such decisions of the captain of the Aircraft as final.
5.10 The Carrier shall not be liable to the Charterer for any loss, damage, costs or claims of any nature and howsoever arising as a result of any decisions taken for reasons of safety by the captain of the Aircraft or any person authorised by the Carrier in that regard.
6. AIRCRAFT AND CREW
6.1 The Carrier shall provide to the Charterer the Aircraft at the commencement of each Flight properly manned and equipped, fuelled and airworthy in accordance with the laws and regulations of the state of registration of the Aircraft and the Aircraft shall be operated in accordance with all applicable laws and regulations during each Flight(s).
6.2 The times shown in the Flight Confirmation are approximate only. Neither those times nor the specified destination(s) are guaranteed and the Carrier is entitled to deviate from the Flight schedule and/or the duration of the Flight and/or to reduce the specified payload. If, for reasons beyond the control of the Carrier, the Aircraft is diverted from any destination shown in the Flight Confirmation to another destination, the journey shall be deemed to be complete when the Aircraft arrives at that other destination. The Carrier shall use its reasonable endeavours promptly to notify the Charterer of such diversion.
6.3 If at the request of the Charterer the Aircraft is used for any Flight(s) and/or Sector(s) other than those set out in the Flight Confirmation, the Charterer shall pay to the Carrier a sum calculated at the rate set out in the Flight Confirmation or as otherwise agreed between the parties in respect of such Flight(s) and/or Sector(s).
6.4 The Crew shall only take instructions from the Carrier unless specific written agreement shall first have been obtained from the Carrier whereby certain defined instructions may be accepted by such personnel from the Charterer.
7. CHARTERER’S OBLIGATIONS
7.1 The Charterer shall comply and shall ensure that all passengers and any sub-charterer(s) shall comply with all relevant customs, police, public health, immigration and other lawful regulations of the State of Registration or of any other state to, from or over which the Aircraft is or may be flown pursuant to the Charter Contract.
7.2 The Charterer shall comply and ensure compliance by its passengers and those of any sub-charterer(s) in all respects with the conditions of all licences and authorities granted for the Flight(s).
7.3 The Charterer shall provide the Carrier with a full passenger list as soon as possible and in any event not less than twenty four hours before the scheduled time of departure of each Flight or such longer period as will enable the Carrier to comply with any applicable APIS (Advanced Passenger Information) requirements.
7.4 The Charterer shall not pledge the Aircraft or the credit of the Carrier for any purpose whatsoever and shall not create or allow to exist any pledge, lien, attachment, encumbrance or other security interest in or over the Aircraft.
7.5 The Charterer shall ensure that all passengers hold all necessary passports, visas, health or other certificates to secure transit through any intermediate ports and entry into the country of destination of the relevant Flight and/or Sector and the Charterer agrees that the Charterer will hold harmless and indemnify the Carrier immediately on demand if any authority refuses entry to any passenger(s) in any circumstances, for the costs of transporting that/those passenger(s) to any point deemed appropriate by such authority together with the costs of accommodation fees and charges of whatsoever nature arising from denied entry.
7.6 The Charterer shall be solely responsible for ensuring that all passengers and their baggage and any freight or cargo to be carried on any Flight(s) shall be available at the specified check-in point at the departure airport for check-in formalities in sufficient time before the scheduled time of departure for each Flight or Sector (as applicable) to be carried on such Flight or Sector (as applicable).
7.7 The Charterer shall not do or allow to be done any act or thing which might be expected to jeopardise the rights of the Carrier or the owner of the Aircraft.
7.8 The Charterer shall comply with and shall ensure that all passengers and owners of freight observe and comply with all relevant customs, police, public health and other regulations which are applicable to the United Kingdom and the states in which landings are made.
7.9 The Charterer shall ensure that no baggage or cargo to be carried on the Aircraft contains:
(a) items which are likely to endanger the Aircraft or persons or property on board the Aircraft, such as those specified in the International Civil Aviation Organisation (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Air Transport Association (IATA) Dangerous Goods Regulations.
(b) items the carriage of which is prohibited by applicable laws, regulations or orders of any state or country to be flown from, to, or over;
(c) items which are considered by the Carrier to be unsuitable for carriage because they are dangerous or because of their weight, size, shape or character or which are fragile or perishable;
(d) animals, including birds and reptiles.
7.10 The Charterer will provide the Carrier with a cargo manifest prior to the loading of any goods for carriage aboard the Aircraft, listing in detail the nature and weight of such goods.
8. CANCELLATION, INDEMNITY AND TERMINATION
8.1 Provided that the Charterer does not cancel such Flight for the purpose of contracting instead with any other carrier, the Charterer may cancel any Flight at any time prior to the commencement thereof subject to payment by the Charterer to the Carrier of the cancellation charges set out the Flight Confirmation. Cancellation charges shall be paid at the date of cancellation by the Charterer to the Carrier without prior demand and the Carrier shall be entitled to apply any monies already paid to it by the Charterer against such cancellation charges. Cancellation of any Flight shall only be effective when the Carrier has received the applicable cancellation charges in full.
8.2 The Charterer shall indemnify the Carrier from and against:
(a) all, loss, damage, claims, costs and expenses (including legal costs) suffered or incurred by the Carrier or any of its directors, officers, employees or agents arising out of or in connection with any alleged or actual liability of whatsoever nature to any third party (including but not limited to any passenger(s), shipper, consignor or consignee); and
(b) any damage or loss of whatsoever nature caused to the Carrier, its directors, officers, employees or agents or to any Aircraft or other equipment of the Carrier, its servants or agents; in any such case caused by or arising from or in connection with any wrongful act, omission or negligence of the Charterer, any sub-charterer or any of their respective directors, officers, employees or agents.
8.3 The Charterer shall indemnify the Carrier from and against any and all claims, demands, liabilities, actions, proceedings, fines, costs and expenses of any kind (including legal costs) incurred or suffered by the Carrier arising from or attributable to any failure or default on the part of the Charterer, any sub-charterer, passenger, shipper, consignor or consignee or any of their respective directors, officers, employees or agents in complying with the provisions of these Terms and Conditions and the Charter Contract.
8.4 the Carrier shall be entitled to terminate the Charter Contract without prejudice to any rights of the Carrier then accrued if:
(a) the Charterer fails to pay to the Carrier any sum due from the Charterer under the Charter Contract on or before the relevant date on which such payment is due and payable;
(b) the Charterer fails to comply with any of its obligations under the Charter Contract (other than those referred to in (a) above) which, if capable of remedy, has not been remedied within two (2) days of receipt of written notice from the Carrier specifying the breach and requiring its remedy;
(c) at any time during the currency of the Charter Contract, the Charterer no longer holds (if required to do so) an Air Travel Organisers Licence or other requisite permission or authority or fails to comply with any condition of such licence, permit or authority;
(d) where the Charterer is a body corporate, any proceeding are started or any steps are taken for the Charterer to be found insolvent or for winding up or dissolution of the Charterer, or for the appointment of a liquidator, trustee, administrator, receiver, administrative receiver, supervisor or similar officer over the Charterer or any or all of its revenues, rights or assets, or the Charterer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
(e) where the Charterer is an individual or partnership, the Charterer or any member of the partnership constituting the Charterer dies, becomes insolvent, becomes of unsound mind, commits any act of bankruptcy, has a receiving order made against him/her, is adjudicated bankrupt, has a bankruptcy petition presented or a bankruptcy order or interim order is made against him/her;
(f) the Charterer convenes a meeting or takes any steps for the purpose of making or proposes to enter into or make, any arrangements or composition for the benefit of its creditors;
(g) distress, sequestration, or other execution is levied or enforced or sued out upon or against any of the assets, rights or revenues of the Charterer;
(h) the Charterer suspends or threatens to suspend or cease to carry on its business or (except in the ordinary course of business) it sells, leases, transfers or otherwise disposes of or threatens to dispose of all or any substantial part of its undertakings or assets (whether by a single transaction or by a series of transactions), or all or any substantial part of its assets are seized or appropriated by or on behalf of any governmental or other authority or are compulsorily acquired;
(i) if anything analogous to any of the events specified in paragraphs (d), (e), (f), (g) or (h) of this Clause 8.4 occurs under the laws of any relevant jurisdiction;
(j) in the opinion of the Carrier a material adverse change occurs in the business, assets, financial condition, operations or prospects of the Charterer.
8.5 If the Carrier terminates the Charter Contract under Clause 8.4 above, the Charterer shall (without prejudice to any other rights and remedies the Carrier may have) pay immediately to the Carrier all amounts then due and unpaid to the Carrier hereunder, together with interest thereon at the rate specified in Clause 3.9. In addition, if the Carrier terminates the Charter Contract under Clause 8.4 above or if the Charterer cancels any of the Flights, the Charterer shall pay immediately the applicable cancellation charges specified in the Flight Confirmation in respect of any unperformed Flight(s).
8.6 If the Carrier terminates the Charter Contract under Clause 8.4 above the Carrier shall have the right to terminate any Flight which has then commenced without liability of any kind to the Charterer or any other person.
9. LIMITATION OF LIABILITY
9.1 The Carrier and its directors, officers, employees, servants and agents shall not be liable for any failure to perform any of the obligations of the Carrier under the Charter Contract where such failure arises (whether directly or indirectly) from:
(a) the act, neglect, default, omission or negligence of the Charterer, any subcharterer or any of their respective passengers or of any sub-contractor or other person on whom the Carrier may rely for the performance of its obligations hereunder;
(b) any event, occurrence or circumstance beyond the reasonable control of the Carrier including but not limited to labour disputes, strikes, lock-outs or other industrial actions whether actual or threatened and whether involving employees of the Carrier, its agents or any third party upon whom the Carrier depends to perform its obligations hereunder, war (whether war be declared or not), hostilities, insurrection, civil commotion or rebellion, seizure, sanctions, quarantine restrictions, unusually severe weather, acts of God, governmental restraints, accidents to or failure of the Aircraft or any part thereof or any machinery or apparatus in connection therewith;
(c) lack of assurance of the availability of sufficient quantities or quality of aviation fuel of a standard acceptable to the Carrier;
(d) the refusal or untimely granting or withdrawal of any authorisation or permit required for the performance of any of the Flight(s) or Sector(s);
(e) the unavailability, at a cost or on terms acceptable to the Carrier, of any insurance(s) required to be maintained by the Carrier for the operation of any Flight(s) or Sector(s).
9.2 All carriage performed pursuant to the Charter Contract shall be subject to the rules relating to liability established by the Convention as amended by the Conditions and subject to all applicable laws and regulations (including EC Council Regulation No 2027/97 of 9 October 1997), as amended by EC Regulation No 889/2202 of 30 May 2002, which provisions shall govern and determine the rights and liabilities of the parties to such carriage. Except as expressly provided thereby the Carrier shall have no liability whatsoever for the death of or injury to or delay of any passenger(s) or loss, of, or any damage, destruction or delay to any baggage, package or cargo. The Carrier is not a common carrier and does not accept the obligations of a common carrier.
9.3 In no circumstances whatsoever shall the Carrier be liable for any consequential or special damage or loss arising from its performance or failure to perform any Flight(s) or Sector(s) or any of its other obligations under this Charter Contract regardless of whether the Carrier has or should have knowledge that such damage or loss might be sustained.
9.4 If the Carrier is unable for any reason to perform or complete any Flight or Sector or service contemplated by the Charter Contract, it shall be under no obligation or liability to the Charterer beyond the refund of the sum paid for that uncompleted or unperformed Flight, Sector or service concerned.
9.5 The Charterer shall indemnify and keep indemnified the Carrier from and against any and all liabilities, claims, demands, suits, judgments, damages, losses, costs and expenses (including legal costs) arising in respect of any passenger’s rights pursuant to the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulation 261/2004 and any revision or amendment or replacement thereof concerning or affecting compensation for and assistance to airline passengers in the event of denied boarding, cancellation or delay of flights except to the extent attributable to the recklessness with knowledge of the probable consequences or the wilful misconduct of the Carrier.
10.1 The Carrier shall be entitled, without giving any reason and without notice, to substitute any other aircraft for the Aircraft. In the event of the Aircraft becoming unserviceable, the Carrier shall be entitled, but shall not be obliged, to substitute another aircraft. The substitution of an aircraft with a different number of seats from the number specified in the Flight Confirmation shall not affect the respective liabilities of the Carrier to provide and the Charterer to pay for the accommodation hereby chartered, which shall continue to be determined by reference to the number of seats chartered in the original Aircraft.
10.2 In the event that the Carrier does sub-contract the performance of any Flight(s) or Sector(s) to another commercial air transport operator in accordance with Clause 17 below or does substitute any other aircraft for the Aircraft in accordance with Clause 10.1 above, the Charterer shall ensure that, as soon as reasonably practicable after it has been informed by the Carrier of the sub-contract or substitution in question, all passengers affected thereby are similarly informed to the extent it is necessary to amend any information regarding aircraft operator or aircraft type previously communicated (whether by brochure or otherwise) to any such passenger.
10.3 If for any reason beyond its control the Carrier is unable for the purpose of any Flight(s) or Sector(s) to operate the Aircraft to or from any airport specified in the Flight Confirmation, the Carrier may operate to or from any other airport within its reasonable discretion (which may include reducing the number of Sectors on any Flight(s) if reasonably considered necessary by the Carrier) and shall be deemed thereby to have complied with its obligations hereunder. Where the Carrier arranges a transfer service by alternative means of transport to be performed by independent operator(s), it shall be deemed to arrange such service as agent for the Charterer and the passengers and shall under no circumstances whatsoever be liable for any acts or omissions of such independent operator(s) who is/are not and shall not be deemed to be agent(s) or servant(s) of the Carrier. The costs of such transfer service shall be the responsibility of and paid by the Charterer. In the event of any variation in costs as a consequence of any alteration(s) in the routing of a Flight or Sector pursuant to this Clause 10.3, the Charterer will be responsible for any additional costs so arising and in the event of costs being reduced, an appropriate refund will be made by the Carrier to the Charterer.
11. LOSS OR DAMAGE
11. In the event that the Aircraft is lost or damaged to the exrent that it will be unable to operate any Flight(s) or Sector(s), then, at the Carrier’s sole option, either:
(a) the Carrier shall use its reasonable endeavours to operate the applicable Flight(s) or Sector(s) with a replacement aircraft from within its fleet (subject to its own operational and commercial requirements) upon and subject to the same terms and conditions as those applicable to the Aircraft hereunder; or
(b) the Charter Contract will terminate in respect of such Flight(s) or Sector(s) and neither the Carrier nor the Charterer shall be liable to the other save that such termination shall not release either party from any liability arising from an antecedent breach by it of this Charter Contract including, without limitation, any obligation to pay or re-pay any monies then owed or accrued and unpaid prior to the effective date of such termination.
Any notice or other communication required to be given under the Charter Contract must, unless otherwise stated, be given in writing and shall be delivered personally, or by post, overnight courier service, facsimile transmission or by email (where such address is available). Any such notice or other communication shall be deemed effectively given when received by the recipient (or if receipt is refused by the intended recipient, when so refused). The address, facsimile and email details for notices and other communications to the Carrier and Charterer are as set out below or as otherwise advised by one party to the other in writing and in compliance with this clause 12.
(i)to the Carrier at:
Titan Airways Limited
Fax No: |++ 44 (0) 1279 680110
Email address: firstname.lastname@example.org
Attention: Commercial Department
(ii) to the Charterer at:
Email address: [ • ]
Attention: [ • ]
If there is any inconsistency or conflict between the terms of the Flight Confirmation and these Terms and Conditions, these Terms and Conditions shall prevail.
14. GOVERNING LAW AND JURISDICTION
14.1 The Charter Contract (including these Terms and Conditions) shall be governed by and construed in accordance with English law and both parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts.
14.2 Nothing contained in this Clause 14 shall limit the right of the Carrier to take proceedings against the Charterer in any other court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
15. ENTIRE AGREEMENT
The Charter Contract, including these Terms and Conditions, constitutes the entire agreement between the Carrier and the Charterer in relation to the charter of the Aircraft and supersedes all previous agreements, representations and understanding written or oral express or implied, in relation thereto, provided always that nothing in the Charter Contract shall limit or exclude any liability of the Carrier or Charterer for fraud. No variation of the Charter Contract shall be effective unless made in writing and signed on behalf of both parties.
16. SEVERABILITY AND WAIVER
16.1 If any provision of the Charter Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, it will not affect the legality, validity or enforceability in that jurisdiction of any other provision of the Charter Contract or the legality, validity or enforceability in any other jurisdiction of that or any other provision of the Charter Contract.
16.2 The rights of the Carrier under the Charter Contract may be exercised as often as necessary, are cumulative and not exclusive of its rights under any law, and may be waived only in writing and specifically. Delay by the Carrier in exercising or not exercising any such right will not constitute a waiver of that right.
17. SUB-CONTRACTS AND ASSIGNMENTS
17.1 The Carrier shall be entitled to assign or sub-contract or delegate the performance of the whole or any part of its obligations hereunder and any reference to the Carrier shall include any person to whom any such the obligations are assigned, sub-contracted or delegated.
17.2 The Charterer shall not be entitled to assign, sub-contract or delegate the performance of the whole or any part of its obligations hereunder except with the prior written agreement of the Carrier.
18. FURTHER ACTS
The Carrier and the Charterer shall from time to time do and perform such other and further acts and execute and deliver all other and further instruments as may be required by law or reasonably requested by the other to establish, maintain and protect the respective rights and remedies of the other and to carry out and effect the intent and the purpose of the Charter Contract.
19. NO THIRD PARTY RIGHTS
It is not intended by the Carrier or the Charterer that any provision of the Charter Contract or these Terms and Conditions shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Acts 1999 by any person who is not a party to the Charter Contract.