Wet Lease Terms & Conditions
These Terms and Conditions, together with the Wet Lease Confirmation, constitute the agreement (“the Agreement”) upon which TITAN will wet lease the Aircraft to the Lessee and the Lessee will wet lease the Aircraft from TITAN.
1.Definitions and interpretation
1.1 In this Agreement, capitalised expressions shall, except where the context otherwise requires, have the meanings given to them in the Wet Lease Confirmation or below:
(a) Aviation Authority shall mean the United Kingdom Civil Aviation Authority (CAA) or other such governmental department, bureau, commission or agency that under the Laws of the State of Registration shall from time to time have control or supervision of civil aviation in that state or have jurisdiction over the registration, airworthiness, operation, safety, or other matters relating to the Aircraft;
(b) Block Hour shall mean each hour or part of an hour elapsing from the moment that the Aircraft first moves under its own power or is pushed by mechanical means prior to a flight until the Aircraft comes to a complete halt on its final parking stand at the end of such flight. For the purpose of calculations under this Agreement measured in Block Hours, such hours shall be measured in units of one sixtieth of an hour (each unit consisting of one minute);
(c) Business Day shall mean a day, not being a Saturday or Sunday, on which banks are open for business in London, New York (if any payments under this Agreement are to be made in US Dollars), and (if different) the place of incorporation of the Lessee;
(d) Crew shall have the meaning given to it in Clause 5.4(b);
(e) Delivery Condition shall mean (i) that the Aircraft is in a clean, airworthy and serviceable condition, is painted in the Livery, and is ready to operate the flights under this Agreement, and (ii) that the cabin interior of the Aircraft is in a clean condition (subject to normal wear and tear);
(f) EASA shall mean the European Aviation Safety Agency or any person, governmental department, bureau, commission or agency succeeding to the functions of the European Aviation Safety Agency;
(g) EUR or € shall mean the lawful currency of the eurozone;
(h) Event of Default by the Lessee shall have the meaning given to it in Clause 15.1;
(i) Event of Default by TITAN shall have the meaning given to it in Clause 16.1;
(j )Force Majeure shall mean any cause or event beyond the reasonable control of a Party, including but not limited to war, hostilities, civil commotion or rebellion, seizure under legal process, sanctions, quarantine restrictions, labour disputes strikes or lockouts, unusually severe weather, volcanic ash clouds, acts of God or the Queen’s enemies and any accident to or failure of the Aircraft or any part thereof or any machinery or apparatus in connection therewith which could not have been reasonably foreseen or prevented by such Party;
(k) GBP or £ shall mean the lawful currency of the United Kingdom;
(l) Government Entity shall mean and include (i) any national government, political subdivision thereof, or local jurisdiction therein, (ii) any board, commission, department, division, organ, instrumentality, court, agency, central bank or taxing authority of any thereof, however constituted; and (iii) any association, organisation, or institution of which any thereof is a member or to whose jurisdiction any thereof is subject or in whose activity any thereof is a participant;
(m) Lessee Indemnitees shall mean the Lessee together with its directors, officers, employees, agents and subcontractors;
(n) Losses shall mean all costs, expenses, payments, charges, losses, demands, liabilities, claims, actions, proceeding, penalties, fines, damages, judgements, orders or other sanctions;
(o) Party shall mean either TITAN or the Lessee (together, the “Parties”);
(p) Price shall bear the meaning given to it in Clause 5.1;
(q) State of Registration shall mean the United Kingdom;
(r) Taxes shall mean all present and future taxes, levies, deductions, withholdings, imposts, duties, fees or charges of whatever nature and by whatever name called and wheresoever imposed, including, without limitation, any sales, use, franchise, transfer, personal property, business occupation, customs, stamp. interest equalisation,corporation income, gross receipts, turnover, value added or similar tax, levy, deduction, withholding import duty, export duty, fees or charges at the rate applicable for the time being imposed by any Government Entity together with any interest charged thereon and fines and penalties in respect thereof, but excluding taxes imposed on the income, revenue or capital gains of TITAN;
(s) TITAN Indemnitees shall mean TITAN together with its directors, officers, employees, agents and subcontractors;
(t) Total Loss means the loss or destruction of the Aircraft, or damage to the Aircraft such that a determination by the insurers is made under the policy of full insurance that repair would be impractical, or any seizure or requisition for use or title or confiscation of the Aircraft;
(u) USD or $ shall mean the lawful currency of the United States of America; and
(v) Wet Lease Confirmation shall mean the confirmation signed by both Parties containing certain commercial terms of this Agreement.
1.2 References in this Agreement to:
(a) Clauses or Annexes are, unless otherwise specified, references to clauses of, and annexes to, this Agreement; and
(b) any statutory or other legislative provision shall be construed as including any statutory or legislative modification or re-enactment thereof, or any substitution therefore.
1.3 Headings in this Agreement are for ease of reference only and shall not affect in any way the construction or effect of this Agreement.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.6 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.Agreement to wet lease
2.1 TITAN will wet lease to the Lessee and the Lessee will take on wet lease from TITAN the Aircraft during the Wet Lease Period on the terms and conditions of the Agreement.
2.2 TITAN will make the Aircraft available to the Lessee in the Delivery Condition on the first day of the Wet Lease Period in sufficient time to enable the timely performance of the first flight under the Flying Programme.
2.3 The Lessee shall at reasonable intervals throughout the Wet Lease Period be entitled to conduct reasonable technical and operational auditing of TITAN and the Aircraft.
3.1 TITAN Conditions Precedent
The obligation of TITAN to wet lease the Aircraft to the Lessee in accordance with this Agreement is conditional upon the fulfilment of the following conditions, or waiver of any of the same by TITAN, on or before the first day of the Wet Lease Period:
(a) receipt by TITAN of a certificate evidencing the insurance required to be maintained by the Lessee under this Agreement;
(b) receipt by TITAN of a copy of the Lessee’s air operator certificate and any other licence or approval required from the Lessee’s Aviation Authority or other Government Entity to enable the Lessee to perform its obligations under this Agreement; and
(c) receipt by TITAN of the Security Deposit in full.
3.2 Lessee Conditions Precedent
The obligation of the Lessee to wet lease the Aircraft from TITAN shall be conditional upon the fulfilment of the following conditions, or waiver of any of the same by the Lessee, on or before the first day of the Wet Lease Period:
(a) receipt by the Lessee of a certificate evidencing the insurance required to be maintained by TITAN under this Agreement; and
(b) receipt by the Lessee of a copy of TITAN’s air operator certificate and any other licence or approval required from the Aviation Authority or other Government Entity to enable TITAN to perform its obligations under this Agreement.
4.Return of Aircraft
4.1 The Aircraft shall cease to be available to the Lessee on the last day of the Wet Lease Period.
4.2 On the last day of the Wet Lease Period the Lessee shall ensure that the Aircraft is free and clear of all liens, charges and encumbrances that have arisen during the Wet Lease Period (except for liens, charges and encumbrances created by TITAN that do not relate to the operations under this Agreement).
5.Price and other Charges
5.1 The price that the Lessee shall pay to TITAN in consideration for the wet leasing of the Aircraft under this Agreement (the “Price”) shall be either:
(a) the Daily Rate for each day of the Wet Lease Period plus the Block Hour Rate for each Block Hour flown under this Agreement including for live sectors, diversions and positioning flights; or
(b) the applicable Block Hour Rate for each Block Hour flown under this Agreement, including for live sectors, diversions and positioning flights.
The Wet Lease Confirmation shall state whether the price will be calculated according to paragraph (a) or paragraph (b) above.
5.2 TITAN shall invoice the Lessee for the Price and for any other amounts payable by the Lessee, at intervals during the Wet Lease Period as set out in the Wet Lease Confirmation. All invoices will be paid in full upon receipt.
5.3 The Lessee guarantees that during the Wet Lease Period it will pay for the Guaranteed Minimum Utilisation. The Guaranteed Minimum Utilisation will be reduced in the circumstances set out in Clauses 8.2 and 9.2 below, but in no other circumstances shall the Guaranteed Minimum Utilisation be reduced, even if a flight is cancelled.
5.4 In consideration of the payment by the Lessee of the Price, TITAN shall provide the following during the Wet Lease Period:
(a) The Aircraft.
(b) Sufficient sets of EASA qualified and licensed cockpit crews and TITAN-accredited cabin crews (each set being defined in this Agreement as a Crew).
(c) All maintenance (including, without limitation, heavy, line and down route), and sufficient technical resources (including without limitation technical staff) for the operation.
(d) Insurance as set out in Clause 14. For the avoidance of doubt, TITAN shall not be required to provide passenger, passenger baggage, cargo or mail insurance, all of which will be provided by the Lessee.
5.5 Unless otherwise stated in this Agreement or otherwise agreed between the Parties, the Lessee shall be liable for and will pay (or will reimburse TITAN for, as the case might be, as set out in Clause 10.1) all operating costs relating to the Aircraft in connection with the performance of the Flying Programme, including but not limited to:
(a) fuel and lubricants;
(b) landing and parking fees;
(c) ground handling, including cleaning and ramp services, and the provision of tow-bar, tug and pushbacks;
(d) Empty Handling Charges;
(e) overflight and other air navigation and air traffic control charges including Eurocontrol charges;
(f) EU ETS carbon emission charges and levies;
(g) passenger and crew in-flight catering, catering equipment and beverages;
(h) passenger taxes, duties and security charges, immigration and customs fees;
(i) airport charges;
(j) day to day operational support, including flight planning;
(l) licence fees, royalties and no objection fees;
(m) Crew per diems and expenses charged at the Crew Per Diem Rate per Crew member per day; and
(n) Crew hotel accommodation and transfers required for the performance of the flights (on a bed and breakfast basis), Crew duty travel and transport, and any air fares required for crew rotations where travel is by commercial service (as reasonably directed by TITAN), all as more fully set out in Clause 10.3 below.
For the avoidance of doubt TITAN will not be obliged to provide any cargo containers, catering trolleys, bar trolleys and other equipment associated with in-flight catering, all of which will be provided by the Lessee. If TITAN agrees to provide any cargo containers or catering equipment, the Lessee will be responsible for all costs associated with the loss, repair, repatriation or replacement of such equipment.
5.6 The Lessee shall promptly pay and discharge in full any and all airport, air navigation, handling and other similar charges that may become due and invoiced in connection with the use of the Aircraft under this Agreement and for which the Lessee is responsible for according to its terms. The Lessee shall provide TITAN upon request with evidence of such payment and/or discharge.
5.7 The Lessee will pay the Security Deposit in the amounts, and on or before the dates, set out in the Wet Lease Confirmation.
5.8 The Security Deposit will be held by way of security for the due and punctual performance by the Lessee of all its obligations under this Agreement. If the Lessee fails to comply with any provision of this Agreement then, in addition to all its other rights and remedies, TITAN may apply all or any part of the Security Deposit in or towards the payment of any amount due and owing by the Lessee to TITAN. If as a result of the exercise by TITAN of its rights under this Agreement, all or any part of the Security Deposit is applied in accordance with this Agreement, the Lessee will pay to TITAN on demand an amount equal to the amount that has been so applied.
5.9 TITAN may co-mingle the Security Deposit with its own funds and will not hold such funds as agent or on trust for the Lessee or in any similar capacity.
5.10 Upon fulfilment of all of the Lessee’s obligations under this Agreement and payment of all outstanding amounts owed, any balance then remaining of the Security Deposit shall be refunded to the Lessee.
5.11 The Price, the Security Deposit and any other sums payable to TITAN under this Agreement from time to time shall be paid in immediately available funds to TITAN’s Bank Account or such other bank account as TITAN shall designate in writing.
5.12 The Price and other amounts to be paid by the Lessee hereunder shall be made free and clear of deductions of any nature whatsoever including, without limitation, Taxes, except those which the Lessee is obliged to withhold with respect of such payments. In the event that the Lessee is obliged by law to withhold Taxes the Lessee shall pay such additional amounts as are required to ensure that TITAN shall receive free and clear of all Taxes the due amounts. The Price and all other sums payable by the Lessee to TITAN under this Agreement are exclusive of any value added tax, turnover tax or similar tax payable in respect of such sums, and the Lessee shall, in addition, pay to TITAN the amount of any such value added tax, turnover tax or similar tax as may be required from time to time by law to be paid by the Lessee to TITAN.
5.13 Without prejudice to any other remedies of TITAN, the Lessee hereby agrees and undertakes that in the event the Price or other amount payable by it hereunder is not paid on the date the same is due then it shall on demand pay to TITAN interest thereon from the due date up to the date of actual payment (as well after as before judgement) at the Default Rate, which interest shall be accrue from day to day and be computed on the basis of a year of three hundred and sixty five days.
6.Registration and Title
6.1 Throughout the Wet Lease Period the Aircraft shall be registered in the name of TITAN in the United Kingdom.
6.2 The Lessee shall have no right, title or interest in or to the Aircraft.
6.3 The Lessee shall not do or omit to do or permit to be done or omitted to be done any act or thing the doing or omission of which would or might jeopardise the title, right or interest of TITAN in respect of the Aircraft.
7.Use and Operation
7.1 During the Wet Lease Period, the Aircraft shall be based at the Operational Base.
7.2 The Lessee shall, as soon as possible following execution of this Agreement, make reasonable efforts to ensure that it receives permission from the Lessee’s Aviation Authority to wet lease the Aircraft from TITAN, and shall ensure that this permission remains in effect during the Wet Lease Period. The Lessee undertakes with TITAN that throughout the Wet Lease Period at its own cost and expense it shall obtain and maintain in full force and effect all necessary consents, permits, traffic rights and authorisations required by any competent Government Entity to allow TITAN to operate the flights pursuant to the Flying Programme. The timely granting and continuing validity of such consents, permits etc. shall be the Lessee’s risk. The Lessee will issue or arrange for the issue and completion of all traffic documents required for the performance of the Flying Programme from time to time.
7.3 It is the responsibility of the Lessee to obtain all runway slots and permissions required for the timely performance of the Flying Programme, including any slots or permissions applicable to positioning flights. TITAN shall, at the Lessee’s request and at the Lessee’s cost, provide reasonable assistance to the Lessee in connection therewith. When requested by TITAN, the Lessee shall, in a timely manner, provide details of all such slots/permissions held. TITAN reserves the right to delay or cancel any flight if it is not in receipt of written evidence confirming that all relevant slots and permissions are in place. The Lessee agrees to indemnify and keep indemnified TITAN against any liability (including any liability for fines or sanctions) arising out of the failure of the Lessee to obtain all relevant runway slots and permissions for the performance of any flight hereunder.
7.4 TITAN shall at all times during the Wet Lease Period be responsible for the operation, airworthiness and maintenance of the Aircraft and:
(a) the Aircraft shall be operated by TITAN as approved by the Aviation Authority and EASA and all applicable laws and regulations, and shall not be used or required to be used for any purpose for which it is not designed or suited. TITAN shall be responsible for the technical operation of the Aircraft and the safe performance of the flights. The operation of the Aircraft shall be carried out under TITAN’s air operator certificate and in accordance with the standards and practices of TITAN as set out in TITAN’s operations and procedures manuals, as approved by the Aviation Authority;
(b)TITAN shall be responsible for the maintenance of all logs, records, and certificates required by the Aviation Authority and EASA. TITAN shall forward to the Lessee on a daily basis using such format as may be agreed between the Parties in writing (both Parties acting reasonably) such information as may be necessary to allow the Lessee to comply with EU Directive 101/2008 (EU ETS); and
(c) all flights under this Agreement will be subject to the operational limitations of the Aircraft and TITAN.
7.5 On any flight performed under this Agreement:
(a) the Lessee shall not require or permit the transportation of hazardous or perilous cargo, or animals, including birds and reptiles, or items that are considered by TITAN to be unsuitable for carriage because they are dangerous, or because of their weight, size, shape or character, or because they are fragile or perishable;
(b) the Lessee shall not require or permit the transportation of dangerous goods or weapons without the prior written consent of TITAN. The Lessee acknowledges and accepts that radioactive material cannot be accepted for carriage on the Aircraft. Where dangerous goods are offered for carriage, a copy of the Notification to Captain shall be sent to Titan Operations by e-mail (email@example.com) or fax (+44 1279 680110). Information regarding procedures employed by the Lessee and its agents, and audits on third party service providers, shall be made available to TITAN on request; and
(c) the Lessee shall ensure that all carriage of cargo and baggage, including any dangerous goods and weapons referred to in (b) above, meets the international standards set by ICAO, IATA and EASA.
7.6 The Aircraft shall not be used or required to be used in any manner or for any purpose that is not permitted under any of the insurances for the Aircraft.
7.7 TITAN shall not be obliged to use or operate the Aircraft in violation of any applicable law, rule or regulation, or any order issued by any competent Government Entity to, from or over which the Aircraft operates. The Lessee will ensure that all security measures required by the Lessee and any Government Entity are applied to all flights.
7.8 Unless otherwise stated in this Agreement, all flights, including positioning flights, will be operated under the Lessee’s flight numbers and call sign.
7.9 TITAN shall inform Lessee promptly about any and all discrepancies and/or irregularities in regard to the operation of any flight.
7.10 The Lessee acknowledges that:
(a) the Captain of the Aircraft shall have complete discretion concerning the preparation of the Aircraft for flight, the flight of the Aircraft, the load carried and its distribution (including the number of passengers and the amount of their baggage), whether or not a flight should be undertaken, where landings should be made, and all other matters relating to the operation of the Aircraft, and the Lessee shall accept all such decisions of the Captain as final. TITAN shall not be liable to the Lessee for any losses of whatsoever nature and howsoever arising whether in contract or tort or otherwise as a result of any of the decisions made under this Clause 7.10; and
(b) if there is a delay in any flight, TITAN shall not be responsible for accommodation, refreshments, meals or any other Losses incurred in respect of passengers carried or to be carried on the Aircraft.
7.11 The Lessee will comply with, and will cause all passengers and owners of freight carried to observe and comply with, all applicable customs, police, public health and other requirements and regulations of any Government Entity having jurisdiction where landings are made, and will ensure that all passengers hold all necessary passports, visas, and health and other certificates, and the Lessee will indemnify TITAN against any Losses or costs incurred by TITAN if any passenger boards or attempts to board the Aircraft without the necessary documents.
7.12 If TITAN shall incur any costs or expenses in respect of any passenger already carried or to be carried on any flight because (i) the passenger is ill, drunk, abusive or threatening to crew, or otherwise incapable or unsuitable for carriage or continued carriage; or (ii) TITAN is required by law or other government direction or otherwise to remove the said passenger from any other place or country, then the Lessee shall forthwith on demand reimburse TITAN such costs.
7.13 The Lessee shall ensure that each passenger to be carried on the Aircraft shall be supplied with a passenger ticket and baggage check duly completed showing the passenger’s name and place of departure and destination and any agreed stopping places, in accordance with all applicable regulations.
7.14 The Lessee will ensure that the provisions of all applicable international regulations (including, without limiting the generality of the aforementioned, the Warsaw Convention or the Warsaw Convention as amended in the Hague, the Chicago Convention, and the Montreal Agreement) and any applicable modification thereto or any other applicable rules and regulations relating to the limitations of the carrier liability (whichever may be applicable to the carriage the subject of the Agreement) are duly observed.
7.15 TITAN will file the crew list directly with national border agencies where this is a requirement. The Lessee shall supply national border agencies and all other relevant authorities with all passenger details within the regulatory time scale. The Lessee will be responsible for the payment of any fines incurred for the supply of any incorrect or late passenger information.
7.16 If any cargo is carried to the United States under this Agreement, the Lessee will ensure that screening is carried out to the full extent of the Transportation Security Administration (TSA) Model Security Program (MSP). The Lessee acknowledges that it will not be permitted by the TSA to benefit from any screening exemptions in relation to flights under this Agreement.
7.17 If it is necessary for any flight under this Agreement to be diverted or delayed because of:
(a) any act or omission of the Lessee or any passenger;
(b) any passenger suffering a medical emergency;
(c) a disruptive passenger;
(d) a decision by any Government Entity;
(e) a decision by the Captain of the Aircraft under Clause 7.10(a); or
(f) a Force Majeure event beyond the control of TITAN,
then any and all reasonable additional costs incurred (including added Block Hours, fuel charges and landing fees) shall be for the account of the Lessee.
7.18 In line with industry best practice, TITAN will be required to engage with the Lessee’s Safety Management System in order to facilitate safety oversight, hazard identification and threat error management. The Lessee will e-mail all safety data (including Hazard, Occurrence and Safety reports) relating to the operation under this Agreement to firstname.lastname@example.org.
7.19 In the event of a major incident or accident, the following extract from TITAN’s Emergency Response Manual would apply: http://www.titan-airways.com/ACMI/ACMIERPArrangements.pdf.
8.1Chang es to the Flying Programme may be mutually agreed in writing from time to time. TITAN acknowledges that the Lessee shall have commercial control of the flights performed by the Aircraft during the Wet Lease Period, provided that such commercial control does not conflict with TITAN’s operational procedures.
8.2 If the Aircraft is unavailable for any reason within the reasonable control of TITAN, TITAN shall as soon as reasonably possible return the Aircraft to service and may, at the Lessee’s cost, position a suitable replacement aircraft from its own fleet to operate the affected flight(s) (if there is such an aircraft available). If TITAN does not provide a replacement aircraft in these circumstances and any flight under this Agreement is cancelled as a result thereof, the Guaranteed Minimum Utilisation shall be reduced accordingly, and the Lessee shall be entitled to procure another aircraft to perform the affected flight or flights. TITAN shall not be responsible for any expenses, costs or payments arising from the unavailability of the Aircraft.
8.3 If the departure of a flight is delayed because of any act or omission of the Lessee, or any person acting on the Lessee’s behalf, or any passenger carried or to be carried on the flight, and such delay continues beyond the end of the Wet Lease Period, TITAN may, at its sole discretion, cancel the affected flight (and any subsequent flights that were to form part of the Flying Programme) or claim demurrage from the Lessee at the rate of £2,000 for each hour by which the period of the delay exceeds two hours. For the avoidance of doubt, the cancellation of any flight under this Clause 8.3 shall not affect the Guaranteed Minimum Utilisation.
9.1 Neither Party shall be liable to the other for any failure to perform its obligations under this Agreement (except for payment obligations) if it is prevented from performance by an event of Force Majeure. Each Party will inform the other of any event of Force Majeure affecting its obligations under this Agreement, and will use reasonable endeavours to resume performance as soon as possible.
9.2 If a flight under this Agreement cannot be performed because of a Force Majeure event affecting TITAN (and provided that no act or omission of the Lessee is preventing the flight from being performed), the Guaranteed Minimum Utilisation shall be reduced accordingly and the Lessee shall be entitled to procure another aircraft to perform the affected flight or flights at the Lessee’s cost.
9.3 If the Flying Programme cannot be performed by the Aircraft for more than fourteen (14) consecutive days because of a Force Majeure event, either Party may by notice in writing to the other Party terminate this Agreement, and the Security Deposit will be returned to the Lessee after the deduction of all outstanding monies due for flights completed prior to the termination.
10.Outgoings; Crew Accommodation
10.1 Any costs or charges which are stated in this Agreement as being for the Lessee’s account will be paid by the Lessee to the applicable third party, and the Lessee will indemnify TITAN against any such costs and charges. If payment to a third party of such costs and charges is required to be made by TITAN (whether or not at the Lessee’s request), then the Lessee will promptly reimburse TITAN for the payment together with a disbursement charge of 10%.
10.2 If any charges for which the Lessee is responsible under this Agreement are not paid by the Lessee when due, TITAN shall be at liberty (but shall not be obliged) to pay the same. The Lessee shall on demand forthwith pay to TITAN any sums so expended together with interest thereon at the Default Rate from the date such sum was so expended to the date of the reimbursement by the Lessee (before as well as after judgement).
10.3 The Lessee shall book and pay for all Crew hotel accommodation and all Crew duty travel and transport necessary for the performance of this Agreement. Any Crew duty travel and transport required for the operation shall, at all times, be subject to TITAN’s approval. Any use of scheduled/charter flights for Crew duty travel and Crew positioning shall be on a fully confirmed basis. Hotel accommodation for the Crew shall be of a minimum five star standard, with fully functioning Wi-fi availability, and shall be no more than 30 minutes’ travel time from the relevant airport. If the Lessee is unable to confirm suitable Crew hotel accommodation and/or Crew transport and travel, TITAN may book such items direct and the Lessee will promptly reimburse TITAN for the payment together with a disbursement charge of 10%.
11.Liability and Indemnities
11.1 TITAN shall be liable for any loss or damage to property (excluding baggage, cargo or mail) of third parties or death of or injury of third parties (excluding passengers) arising out of this Agreement, and hereby indemnifies and holds harmless the Lessee Indemnitees from and against any and all Losses in relation to any such loss or damage, death or injury, unless such loss or damage, death or injury arises from the gross negligence or wilful misconduct of any Lessee Indemnitee.
11.2 The Lessee agrees to provide, in a timely manner, any reasonable assistance necessary for the recovery by TITAN of any Losses arising out of ground damage to the Aircraft caused by the Lessee’s agents, servants, and sub-contractors and the staff thereof, and to indemnify TITAN for any such Losses if TITAN does not recover such Losses from the injuring party. If TITAN seeks indemnification from the Lessee, TITAN will (subject to the consent of the insurers if required) allow the Lessee to assume and conduct proceedings against the injuring party, provided that the Lessee will keep TITAN informed of the progress of any such claim.
11.3 The Lessee shall be liable for any loss or damage to any baggage, cargo or mail or the death of or injury to any passenger arising out of this Agreement, and hereby indemnifies and holds harmless the TITAN Indemnitees from and against any such loss or damage, death, or injury, unless such loss or damage, death or injury arises from the gross negligence or wilful misconduct of a TITAN Indemnitee.
11.4 The Lessee agrees to indemnify and hold TITAN harmless against all Taxes properly levied or imposed against or upon TITAN or incurred by TITAN during the Wet Lease Period in relation to this Agreement.
11.5 Unless caused by an act of gross negligence or wilful misconduct by TITAN, the Lessee agrees to indemnify TITAN against any liabilities incurred by TITAN as a result of the application of EU 261/2004 (as that Regulation may be amended from time to time) or any similar regulation applicable in any other jurisdiction to a flight under this Agreement. This includes, but is not limited to, liabilities (including liabilities for the provision or cost of providing any accommodation, refreshments or meals) arising from passenger delays, baggage destruction, and loss or damage to baggage. Claim resolution and payments arising from such matters shall be the responsibility of the Lessee.
11.6 In the event of a breach by the Lessee of any provision of this Agreement the Lessee shall indemnify and hold harmless TITAN from and against all Losses incurred or sustained by TITAN resulting from such breach.
11.7 Unless otherwise stated herein, TITAN, its servants, agents and employees shall not be liable for any Losses arising from any failure by TITAN to perform its obligations under this Agreement as a result of the act, negligence or omission of any sub-contractor contracted by the Lessee.
11.8 The indemnities in this Clause 11 shall survive the termination or expiry of this Agreement.
11.9 Neither Party shall be liable to the other for any consequential or indirect Losses arising out of or in relation to this Agreement.
12.Covenants and undertakings
The Lessee hereby covenants and undertakes with TITAN as follows:
12.1 not to do anything which may expose the Aircraft or any part thereof to penalty, forfeiture, seizure, arrest, impounding, detention, confiscation, taking in execution, appropriation or destruction;
12.2 not to pledge the Aircraft or the credit of TITAN for any purpose;
12.3 to take all reasonable steps which may be necessary to safeguard TITAN’s title, rights and interest in the Aircraft;
12.4 not to place or permit to be placed any notices in or on the Aircraft dealing with the rights of any person in respect of the Aircraft;
12.5 not to sell or mortgage or execute a bill of sale affecting the Aircraft or any interest therein or create or suffer to exist any lien, charge or encumbrance over the Aircraft or any part thereof;
12.6 to pay, discharge or make adequate provision by way of security or otherwise for all sums that Lessee is responsible for under this Agreement and that may give rise to liens or statutory rights in rem or claims enforceable against the Aircraft. If at any time a lien, charge or encumbrance shall be created or levied upon the Aircraft as a result of Lessee’s actions or its failure to perform its obligations under this Agreement, the Lessee will forthwith notify TITAN and cause the same forthwith to be discharged. In the event the Lessee shall fail to discharge any such encumbrance, TITAN may do so, in which event the Lessee shall pay to TITAN, on demand, the amount paid by TITAN together with TITAN’s Losses, including legal fees and expenses; and
12.7 on request from time to time, including after the Wet Lease Period, furnish to TITAN evidence satisfactory to TITAN that all the operating costs of the Aircraft incurred by the Lessee have been paid and discharged in full.
13.Loss or Damage to Aircraft
In the event of a Total Loss of the Aircraft at any time prior to the expiration of this Agreement (including before the commencement of the Wet Lease Period), TITAN shall be entitled either:
13.1 to terminate this Agreement forthwith by written notice with immediate effect to the Lessee. In such circumstances neither Party shall have any further obligation or liability under this Agreement save for obligations in relation to the period prior to such termination. TITAN shall forthwith refund any sums paid by the Lessee in respect of any period after such termination, and following payment by the Lessee of all sums due from the Lessee under this Agreement, the Security Deposit will be returned to the Lessee; or
13.2 to provide a permanent replacement aircraft (of the same model, condition and configuration) that shall then become the Aircraft under this Agreement.
14.1 TITAN will, throughout the Wet Lease Period, provide insurance as follows:
(a)Hull All Risks, including Hull War and Allied Perils insurance in respect to the Aircraft. The Hull Insurance shall contain a waiver of rights of subrogation against the Lessee Indemnitees, provided that such waiver of rights of subrogation will not apply to any damage to the Aircraft caused by the gross negligence or wilful misconduct of any Lessee Indemnitee;
(b) Aircraft Legal Liability Insurance including third party liability (but excluding passenger, passenger baggage, cargo and mail liability) with a combined single limit of not less than the Aircraft Legal Liability Insurance Limit any one accident/occurrence and in the annual aggregate of third party war risks. TITAN shall cause its insurers to add the Lessee Indemnitees as additional insureds under this liability insurance, except in respect of damages caused by the gross negligence or wilful misconduct of any Lessee Indemnitee.
14.2 The insurance taken out by TITAN under Clause 14.1(b) above shall provide as follows:
(a) the insurance shall operate in all respects as if a separate policy had been issued covering each party insured thereunder. Notwithstanding the foregoing, the total liability of insurers in respect of any and all insureds shall not exceed the limits of liability stated in the policy;
(b) the insurance provided shall be primary and without right of contribution from any other insurance that may be available to the Lessee Indemnitees;
(c) the cover afforded to the Lessee Indemnitees by the policy shall not be invalidated by any act or omission (including misrepresentation or non-disclosure) of any other person or party which results in a breach of any term, condition or warranty of the policy, provided that the party so protected has not caused, contributed to or knowingly condoned the said act or omission;
(d) the insurance may only be cancelled or materially altered in a manner adverse to the Lessee Indemnitees by the giving of not less than thirty (30) days’ (seven (7) days’ or such lesser period as may be customarily available in respect of War and Allied Perils) notice; and
(e) the Lessee Indemnitees shall not have any responsibility for premiums and insurers shall waive any right of set-off or counterclaim against the Lessee Indemnitees.
14.3 The Lessee will procure, at its own expense, that passenger, passenger baggage, cargo and mail liability insurance to a limit of not less than the Passenger Liability Insurance Limit is maintained throughout the Wet Lease Period.
14.4 The Lessee shall cause its insurers to add the TITAN Indemnitees as additional insureds under the passenger, baggage, cargo and mail liability insurance, except in respect of damages caused by the gross negligence or wilful misconduct of any TITAN Indemnitee.
14.5 The insurance taken out by the Lessee under Clause 14.3 above shall provide as follows:
(a)the insurance shall operate in all respects as if a separate policy had been issued covering each party insured thereunder. Notwithstanding the foregoing, the total liability of insurers in respect of any and all insureds shall not exceed the limits of liability stated in the policy;
(b) the insurance provided shall be primary and without right of contribution from any other insurance that may be available to the TITAN Indemnitees;
(c) the cover afforded to the TITAN Indemnitees by the policy shall not be invalidated by any act or omission (including misrepresentation or non-disclosure) of any other person or party which results in a breach of any term, condition or warranty of the policy, provided that the party so protected has not caused, contributed to or knowingly condoned the said act or omission;
(d) the insurance may only be cancelled or materially altered in a manner adverse to the TITAN Indemnitees by the giving of not less than thirty (30) days’ (seven (7) days’ or such lesser period as may be customarily available in respect of War and Allied Perils) notice; and
(e) the TITAN Indemnitees shall not have any responsibility for premiums, and insurers shall waive any right of set-off or counterclaim against the TITAN Indemnitees.
15.Default by Lessee
15.1 Each of the following events shall constitute an “Event of Default by the Lessee”:
(a) the Lessee is more than two (2) Business Days late in the making of any payment when due under the Agreement; or
(b) the Lessee is in breach of any other material obligation of the Lessee contained in this Agreement which, if capable of remedy, has not been remedied within ten (10) Business Days of TITAN giving written notice requiring remedy (such notice to specify in reasonable details the nature of the breach); or
(c) the Lessee, or any subcontractor or agent of the Lessee, fails to pass any audit in relation to its obligations under this Agreement or fails to maintain its air operator certificate or any other approval required from the Lessee’s Aviation Authority or any other Government Entity to enable it to perform its obligations under this Agreement, and does not remedy such failure within ten (10) Business Days; or
(d) the Lessee suspends payment of its debts, or is unable or admits inability to pay its debts when they fall due, or is adjudicated or found bankrupt or insolvent; or
(e) any order is made by any competent court, or any resolution is passed by the Lessee, for the winding-up or dissolution of the Lessee or for the appointment of a liquidator or trustee of the Lessee.
15.2 Upon the occurrence of an Event of Default by the Lessee:
(a) TITAN may at any time, provided that the Event of Default is continuing at such time, by written notice to the Lessee terminate the Agreement and be at liberty to return the Aircraft to TITAN’s base; and
(b) TITAN shall have the right to recover from the Lessee all amounts relating to the time before the termination of the Agreement, and may recover forthwith from the Lessee any and all Losses which TITAN shall sustain by reason of the occurrence of the Event of Default; and
(c) TITAN shall be entitled to retain the Security Deposit as liquidated damages.
16.Default by TITAN
16.1 Each of the following events shall constitute an “Event of Default by TITAN”:
(a) TITAN ceases to be a commercial air carrier with the authority to operate the flights and perform flights under this Agreement; or
(b) TITAN is in breach of any material obligation of TITAN contained in the Agreement which, if capable of remedy, has not been remedied within 10 Business Days of the Lessee giving written notice requiring remedy (such notice to specify in reasonable details the nature of the breach); or
(c) TITAN fails to pass of any audit in relation to its obligations under this Agreement or fails to maintain its air operator certificate or any other approval required from the Aviation Authority or any other Government Entity to enable it to perform its obligations under this Agreement, and does not remedy such failure within ten (10) Business Days; or
(d) TITAN suspends payment of its debts, or is unable or admits inability to pay its debts and they fall due, or is adjudicated or found bankrupt or insolvent; or
(e) any order is made by any competent court, or any resolution is passed by TITAN, for the winding-up or dissolution of TITAN or for the appointment of a liquidator or trustee of TITAN.
16.2 Upon the occurrence of an Event of Default by TITAN:
(a) the Lessee may at any time, provided that the Event of Default is continuing at such time, by written notice to TITAN terminate this Agreement; and
(b) the Lessee shall have the right to recover from TITAN all amounts paid in advance for the use of the Aircraft, and the Security Deposit shall then be returned to the Lessee.
17.Assignment, Subcontracting and Sub-Lease
17.1 Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.
17.2 TITAN may, with the prior written consent of the Lessee, which consent shall not be unreasonably withheld or delayed, subcontract to a third party operator the operation of any flight under this Agreement, but any such subcontracting shall not increase the Lessee’s costs or obligations hereunder.
17.3 The Lessee shall not sub-lease the Aircraft without the prior written consent of TITAN.
18.Confidentiality & Data Protection
18.1 Each Party (which for this purpose will include each Party's employees, agents, representatives and advisors) undertakes that it shall not at any time during the Wet Lease Period and for a period of two (2) years after termination of this Agreement, disclose to any person any confidential information concerning the other Party’s business, affairs, customers, clients or suppliers, or this Agreement (including but not limited to any reports, data or information furnished under this Agreement), except as permitted by Clause 18.2.
18.2 Each Party may disclose the other Party’s confidential information:
(a) to its employees, agents, representatives and advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, agents, representatives or advisers to whom it discloses the other Party’s confidential information comply with Clauses 18.1 to 18.3; and
(b) as may be required by law, a court of competent jurisdiction or any regulatory or statutory authority.
18.3 Neither Party shall use the other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
18.4 The provisions of Clauses 18.1 to 18.3 shall not apply to any confidential information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party (including its agents, employees or representatives) in breach of this clause);
(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party; or
(c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party.
18.5 Neither Party will acquire any right in the other’s data and/or information. The receiving Party will take all necessary steps to ensure that it will not use nor reproduce any data, information or know-how of the disclosing party which comes into its possession or control, except as required by this Agreement.
18.6 Each party shall take all necessary steps to ensure that data and information belonging to the other party which comes into its possession or control in the course of this Agreement is protected and shall not:
(a) use the data or information nor reproduce the data or information in whole or in part in any form except as may be required by this Agreement;
(b) disclose the data or information to any third party or persons not authorised by the disclosing Party to receive it, except with the prior written consent of the disclosing Party; or
(c) alter, delete, add to or otherwise interfere with the data or information (save where expressly required to do so by the terms of this Agreement and only with the prior consent of the disclosing Party).
18.7 Each Party shall ensure that if it becomes aware of any data security breach it shall immediately take all steps necessary to prevent further breach, and it shall immediately report any such breach of this Clause 18 to the other Party.
18.8 To the extent that any data or information belonging to a disclosing Party that may be processed or accessed by the other Party is personal data within the meaning of any applicable data privacy or personal data legislation, the Parties will comply with all applicable rules and regulations.
18.9 Each Party will indemnify and hold the other Party harmless (and keep it indemnified and held harmless notwithstanding termination of this Agreement) against any and all Losses or damages suffered by the other Party directly as a result of any breach by the indemnifying Party of any of the provisions of this Clause 18.
18.10 This Clause 18 shall survive the termination or expiry of this Agreement.
19.1 This Agreement will be governed by and construed in accordance with the law of England and Wales and each of the Parties agrees to submit to the exclusive jurisdiction of the English courts with regard to any claim or matters arising under this Agreement.
19.2 The Lessee irrevocably and unconditionally:
(a) (if a Process Agent is identified in the Wet Lease Confirmation) designates, appoints and empowers the Process Agent as its agent for service of process relating to any proceedings before the English courts arising out of or in connection with this Agreement, and agrees that court documents relating to this Agreement can be served on it by posting a copy to the Process Agent at the address given in the Wet Lease Confirmation;
(b) agrees that if TITAN brings legal proceedings against it or its assets in relation to this Agreement, no immunity from the legal proceedings (which will be deemed to include without limitation, suit, attachment prior to judgement, other attachment, the obtaining of judgement, execution or other enforcement) will be claimed by or on behalf of itself or with respect of its assets;
(c) waives any right of immunity which it or its assets now has or may in the future acquire; and
(d) consents generally in respect of any such proceedings to the giving of any relief or the issue of any process in connection with the proceedings including, without limitation, the making, enforcement or execution against any property (irrespective of its use or intended use) of any order or judgement which may be made or given in the proceedings.
19.3 All notices relating to this Agreement shall be in writing and in English and shall be given by any one of the following means namely by personal delivery, post or email to the address before given or to such other address that the recipient may have notified in writing to the Party giving notice (in accordance with this Clause 19.3). Notices shall be deemed to be received:
(a) if posted, five (5) Business Days from the date of posting;
(b) if personally delivered, on delivery;
(c) if sent by email, at the time of transmission (if sent prior to 5.30pm on a Business Day) or at 9.00am on the next Business Day after transmission (if sent after 5.30pm on a Business Day).
19.4The Lessee and TITAN shall from time to time do and perform such other and further acts and execute and deliver any and all other further instruments as may be required by law or reasonably requested by either Party to establish, maintain and protect the respective rights and remedies of the other Party and carry out and effect the intent and purpose of this Agreement.
19.5 If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions (including parts of the affected clause) shall not in any way be affected or impaired thereby.
19.6 No failure or delay on the part of TITAN or the Lessee in exercising any power of right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power preclude any other further exercise of any such right or power.
19.7 This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.8 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) made by or on behalf of the other Party in relation to the subject matter of this Agreement at any time before its signature (together “Pre-Contractual Statements”), other than those set out in this Agreement. Each Party waives all rights and remedies that might otherwise be available to it in relation to such Pre-Contractual Statements.
19.9 Nothing shall exclude or restrict the liability of either Party arising out of its fraudulent misrepresentation.
19.10 Except as provided herein, no person may enforce any of the terms, provisions or rights under this Agreement or shall have any third party rights of any kind.