Schedule 1: ACC Aviation Ltd Standard Terms and Conditions for the Charter of Aircraft
The provisions of these Standard Terms and Conditions are incorporated into each Executive Charter Agreement in their entirety, unless otherwise expressly stated
1 Definitions and Interpretation
1.1 In addition to the terms defined on the first page of this Agreement and also in the Flight Programme, the following words and expressions have the meanings given to them below:
Agreement means the executive charter agreement between the Customer and ACC incorporating these Terms and Conditions;
Flight means the flight(s), or any of them, set out in the Flight Programme;
Passenger means a person travelling on any Flight;
Services means the aircraft charter facilitation support services provided by ACC to the Customer as set out in this Agreement.
1.2 References to statutes or statutory provisions shall be construed to include references to those statutes or statutory provisions as amended or re-enacted from time to time and shall include any orders, regulations, instruments or other subordinate legislation under them.
1.3 The headings in this Agreement are for ease of reference only and shall not in any way affect its construction or interpretation.
1.4 Reference to a party to this Agreement shall include its personal representatives, successors in title and permitted assigns.
1.5 Unless expressly stated to the contrary in this Agreement:
(a) words denoting the singular include the plural and vice versa, words denoting any one gender include all genders and vice versa, and references to persons include individuals, partnerships, bodies corporate and unincorporated associations;
(b) the words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2 Scope of Appointment and Contracting Basis
2.1 The Customer hereby appoints and authorises the ACC to make the arrangements for the Flight Programme on its behalf and ACC accepts such appointment on the terms and conditions of this Agreement.
2.2 By signing this Agreement the Customer is deemed to have approved the details set out in the Flight Programme and the Customer authorises ACC to book such Flights.
2.3 ACC shall provide the Services and otherwise carry out its obligations under this Agreement with reasonable skill and care.
2.4 The Customer shall provide all and any information or assistance that ACC might reasonably request in order to perform its obligations under this Agreement. The Customer warrants the truth, completeness and accuracy of any information provided to ACC.
2.5 The Customer accepts that the Aircraft Operator may at its discretion substitute one or more reasonably suitable aircraft without limitation as to number, type and configuration, whether or not operated by the Aircraft Operator. In the case of any such substitution the provisions this Agreement shall apply to such substituted aircraft.
2.6 Air travel sales in the UK must normally be covered by an Air Travel Organiser’s Licence (ATOL) unless the sale is exempt. The Fights detailed in this Agreement are for an aircraft with 19 or fewer passenger seats and are therefore exempt from the requirements under Air Travel Organisers Licence (ATOL) regulations and therefore the Customer will not be protected by the ATOL scheme.
2.7 ACC shall procure that the Aircraft Operator provides the Aircraft with properly manned equipped and fuelled for each flight specified in the Agreement or as otherwise agreed in writing between the parties.
3 Payment Terms
3.1 The Customer shall pay ACC the following sums:
(a) The Charter Price, together with applicable taxes, fees and charges shall be paid in cleared funds on or before the balance date(s) specified in the Flight Programme; and
(b) All other payments for additional items or services shall be paid in full and in cleared funds immediately on receipt of invoice.
3.2 Time for payment of the Charter Price and any other sums due from the Customer shall be of the essence of this Agreement. Payments by the Customer shall be made by bank transfer in cleared funds, without set-off or deduction to ACC’s account on or before the due dates for payment. Any delay in exercising or decision by ACC not to exercise any of its rights under this Agreement shall noit constitute a waiver by ACC of any such right in that or any subsequent instance.
3.3 ACC shall be entitled to treat failure by the Customer to make payment of the Charter Price (or any other payments due under this Agreement) in full by the due date as constituting cancellation by the Customer of the Flight Programme entitling ACC payment in accordance with the Cancellation Terms.
3.4 The Charter Price specified herein is based on costs and currency exchange rates prevailing as at the date of execution of this Agreement. Should there be any increase in costs between such date and the completion of the Flights and such costs are beyond the reasonable control of the Aircraft Operator then at the option of the Aircraft Operator they shall be rechargeable to the Customer. In such circumstances the Aircraft Operator shall furnish the Customer with full details of the variation in costs. Not less than 21 days’ notice will be given of any variation in the cost of fuel or handling landing, en‑route navigation charges and currency exchange rate fluctuations or other costs.
3.5 Deviation from any of the terms set out in the Agreement through the action, or at the request, of the Customer may involve alterations to the Charter Price.
3.6 Unless otherwise agreed the Charter Price excludes government or local taxes, airport passenger service charges, security taxes and levies, royalties, airport extension charges, de-icing, hangarage, satellite phone & wireless internet usage, fuel surcharges, ground transportation and any costs that may be introduced / levied or increased after the date of the Agreement or which may be payable under the Aircraft Operator’s terms and conditions (including but not limited to additional catering, WiFi, mobile telecommunications or any other charges).
4 Cancellation Terms and Termination
4.1 The Customer may cancel any of the Flights by notice in writing to ACC and in which case the cancellation fees detailed in the Cancellation Terms of the Flight Programme shall apply and be payable by the Customer.
4.2 The scheduled Flight commencement day/time is the point of reference for the purposes of calculating the cancellation fees pursuant to the Cancellation Terms set out in the Flight Programme.
4.3 Without prejudice to clause 4.1, ACC reserves the right to recover from the Customer any additional costs reasonably incurred or committed to by ACC prior to cancellation by the Customer.
4.4 ACC may terminate this Agreement with immediate effect by notice in writing to the Customer if:
(a) the Customer commits a material breach of this Agreement which is not capable of remedy or commits a material breach of this Agreement which if capable of remedy is not remedied to ACC’s satisfaction in sufficient time (as notified by ACC) prior to departure of the relevant Flight;
(b) the Customer has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three business days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business;
(c) if the Customer is subject to a change of control (including any change of control which results from one or more persons acting in concert being a corporate entity) and in this clause “control” shall have the meaning given to it by s840 Income and Corporation Taxes Act 1988;
(d) if the provision of Services or any of them by ACC is or becomes illegal, unlawful or ACC is otherwise unable to provide the required Services in the manner contemplated by this Agreement for any reason.
5 Force Majeure
5.1 ACC shall have no liability or responsibility for failure to fulfil any obligation under this Agreement so long as and to the extent to which fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a force majeure event.
5.2 For the purposes of this clause 5 a force majeure event means circumstances beyond the reasonable control of ACC, including (without limitation) acts of God; acts of any governmental or national authority; war or national emergency; riots or civil commotion; fire; explosion; flood; epidemic; strikes, lock-outs or labour disputes (actual or threatened); hijacking; interference of authorities or officials; sanctions; requisition; seizure under legal process; quarantine; adverse weather; accidents to or failure of any aircraft or any machinery or apparatus; lack of assurance to the satisfaction of Aircraft Operator of suitable aviation fuel; any act, neglect, default or omission of the Aircraft Operator, any sub-contractor or person on whom the ACC relies to perform any of its obligations under this Agreement; and the refusal, error in or untimely granting or withdrawal of authorisation or permits required for any Flight.
6 Operational Control and Clearances
6.1 The captain of the Aircraft has absolute discretion concerning the load to be carried and its distribution whether and when a flight should be undertaken and where and when the Aircraft should be landed or not to refuse to carry any Passenger, baggage or cargo. The Customer undertakes to accept all decisions of the captain and to waive all claims against the Aircraft Operator, ACC and their respective servants and agents for any loss damage costs or claims of whatsoever nature and howsoever arising whether in contract or tort or otherwise as a result of any such decision.
6.2 All ground and operating personnel including cabin staff are authorised to take orders only from the Aircraft Operator unless specific written agreement shall first have been obtained from the Aircraft Operator whereby certain defined instructions may be accepted by such personnel from the Customer.
6.3 The schedules shown in the Agreement are subject to diplomatic and airport clearances and are approximate and not guaranteed. The Customer accepts that the Aircraft Operator may at its entire discretion deviate from the routings and/or flight timings shown if such deviation is in the opinion of the Aircraft Operator necessary or is required by national or local air traffic control requirements.
6.4 Operation of the Flights is conditional upon the timely grant by the relevant authorities of traffic rights and any necessary permits. If it is not possible, for whatever reason, to obtain suitable traffic rights, government permits, passenger or aircraft handling, the Agreement shall be cancelled upon notice being given by ACC to the Customer, in which case all sums paid by the Customer will be reimbursed in full, less any reasonable costs incurred for Services already performed or that can still be performed notwithstanding such cancellation. Such reimbursement payment shall be made by ACC to the Customer as soon as reasonably practicable following receipt by ACC of the relevant sums reimbursed by the Aircraft Operator, and for the avoidance of doubt ACC shall have no obligation to reimburse the Customer unless and until it is in receipt of such funds from the Aircraft Operator. In the event that slots cannot be co-ordinated at the indicated schedule, no responsibility or liability is accepted by the Aircraft Operator or ACC for such operational restrictions that are beyond the direct control of the Aircraft Operator or ACC.
If the above is a 5th freedom operation, the flight/s may be cancelled without penalty or notice if, on requesting written non-objections, an operator from the country of origin or destination declares that he is able to undertake the flight/s.
6.5 The Customer shall ensure that all Passengers and their baggage arrive at the check-in or departure point not later than the time specified. In the event of any Passenger or baggage not being at check-in or departure point at the required time, the Aircraft Operator shall not be obliged to delay the departure. In the event that the Aircraft Operator agrees to delay the departure or deviate from the planned route at the request of the Customer, the Customer shall be liable for all increased costs and charges thereby incurred.
6.6 The Customer acknowledges and agrees that the Aircraft Operator may refuse to carry a Passenger and his baggage or cancel a Flight if the Aircraft Operator shall have reasonable ground to believe that:
(a) the Customer is violating or may violate any laws, regulations or permissions, consents, licences, approvals and clearances referred to in this Agreement;
(b) if the Passenger is not specified in a manifest delivered to the carrier in accordance with the Flight Programme;
(c) if the Passenger reports for check-in for a Flight after the maximum number of Passengers specified in the Flight Programme as being authorised to be carried on the Flight have checked-in and/or been accepted for the Flight;
(d) if the Passenger is no fit to fly, for example through illness; and/or
(e) the Customer is otherwise in breach of any Aircraft Operator terms and conditions.
If a Passenger is refused carriage, neither ACC nor the Aircraft Operator shall be responsible for making any arrangements whatsoever for such Passengers. The Customer will bear all such responsibility and be liable for any costs or losses whatsoever that Customer or the Passenger may incur as a result such refusal and Customer shall indemnify ACC and the Aircraft Operator in respect of any claims by the Passenger against ACC or the Aircraft Operator in respect of such costs or losses.
7.1 If any delay in the commencement or completion of any Flight is caused by the Customer or by anyone acting on its behalf or any Passenger to be carried on any such Flight demurrage shall run against the Customer for such delay at the rate shown in the Flight Programme provided always that the Aircraft Operator shall have the option without any liability whatsoever to depart as scheduled or alternatively elect to cancel such Flight and such cancellation shall be without prejudice to any claim the Aircraft Operator shall have against the Customer for demurrage up to the time of such cancellation.
8 Liability and indemnity
8.1 ACC is not an air carrier and acts only as the arranger of the Flights. Accordingly, and to the extent it may apply, ACC shall have no liability to the Aircraft Operator, Customer or any Passengers for compensation or payment pursuant to EC Regulation EC 261/2004, including any claims relating to passenger delays, Flight cancellation, baggage delays, destruction, loss or damage to baggage. Further the Customer indemnifies ACC at all times against any and all claims, demands, costs (including legal costs on a full indemnity basis), expenses, losses and liabilities incurred arising out of or in connection with Regulation (EC) No. 261/2004.
8.2 In the event that any Passenger is refused entry at any destination airport or refused upon any Flight for reasons including, but not limited to (i) any law or governmental requirement of any state relating to immigration or otherwise which requires the Aircraft Operator to remove the Passenger from the relevant jurisdiction, (ii) the Passenger being drunk, ill or otherwise incapable of travel, (iii) the Passenger being disruptive or unruly or (iv) the Passenger being in breach of any law or other governmental direction or otherwise, the Customer shall indemnify and keep indemnified ACC, its officers, employees, agents and suppliers against any and all cost or expense whatsoever incurred by ACC in respect thereof (including but not limited to charges, fee, penalties, imposts or other expenses levied upon the Aircraft Operator or ACC by any immigration authority) or of any arrangements made by the Aircraft Operator and/or ACC to return such Passengers to the country from which such Passenger was originally carried.
8.3 [ACC is not an air carrier and acts only as the arranger of the Flights and is therefore not liable for non-performance or other errors or failings in the service provided by the Aircraft Operator its servants or agents or any failure on the part of the Customer or its Passengers to comply with their obligations in this Agreement. Furthermore ACC shall not be liable for any loss or damage whatsoever suffered by the Customer resulting from any delay, diversion or cancellation of any Flight by the Aircraft Operator.]
8.4 ACC and the Aircraft Operator and their respective directors, officers, employees, servants and agents shall not be liable for any failure to perform any of the obligations of the Aircraft Operator or under the Agreement where such failure arises (whether directly or indirectly) from:
(a) the act, neglect, default, omission or negligence of the Customer, any subcharterer or any of their respective Passengers or of any sub-contractor or other person on whom the Aircraft Operator may rely for the performance of its obligations hereunder;
(b) any event, occurrence or circumstance beyond the reasonable control of ACC or the Aircraft Operator including but not limited to acts of God, flood, drought, earthquake or other natural disaster or unusually severe weather, labour disputes, strikes, lock-outs or other industrial actions whether actual or threatened and whether involving employees of the Aircraft Operator, ACC, their agents or any third party upon whom it depends to perform its obligations hereunder, war (whether war be declared or not), hostilities, insurrection, civil commotion or rebellion, seizure, sanctions, quarantine restrictions, epidemic or pandemic, governmental restraints accident, incident or mechanical or technical 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 Aircraft Operator;
(d) the refusal or untimely granting or withdrawal of any authorisation, licence, consent or permit required for the performance of any of the Flight(s);
(e) the unavailability, at a cost or on terms acceptable to the Aircraft Operator, of any insurance(s) required to be maintained by the Aircraft Operator for the operation of any Flight(s).
8.5 The Customer accepts responsibility for any damage to the interior of the aircraft, including any costs of cleaning, restoring, repairing, or replacing materials damaged by any Passenger on the Flight and shall indemnify ACC for any claims or losses incurred as a result of such damage.
8.6 Subject to clauses 8.7 and 8.9, ACC’s total aggregate liability, however arising out of or in connection with this Agreement and each Flight Programme shall be limited to a sum equal to 100% of the Charter Price paid by the Customer in respect of such Agreement and Flight Programme.
8.7 Notwithstanding any other provision of this Agreement, but subject to clause 8.9, ACC shall have no liability however caused in each case whether suffered by the Customer or any third party for any:
(a) direct or indirect loss of or damage to: (i) profit, (ii) revenue, (iii) business, (iv) contracts, (v) opportunities, (vi) anticipated savings, (vii) data, (viii) goodwill, (ix) reputation, (x) use; or
(b) indirect or consequential loss or damage; or
(c) loss or damage suffered by the Customer as a result of a claim brought by a third party.
8.8 The parties agree that each of the sub-clauses in clause 8.7 and each of the sub-paragraphs 8.7(a)(i) to 8.7(a)(x) in sub-clause 8.7(a) constitute separate terms and the introductory wording of clause 8.7 shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause 8.7 or otherwise.
8.9 ACC’s liability shall not be limited or excluded by any provision of this Agreement to the extent prohibited or limited by law and in particular nothing in this Agreement shall exclude or limit liability:
(d) for death or personal injury caused by negligence to the extent prohibited by law; or
(e) for fraudulent misrepresentation or other fraud.
9 Aircraft Operator’s General Terms & Conditions
9.1 Carriage of Passengers and baggage is subject to the Aircraft Operator’s terms and conditions.
9.2 The Customer shall comply with and procure that each Passenger observes and complies with the Aircraft Operator’s terms and conditions.
10.1 The Customer shall provide ACC with a full Passenger manifest and other documentation required in respect of any or all Flights at or before the due time required by the Flight Programme (or at any other time ACC might reasonably request) and so as not to disrupt the operation of that Flight. Such manifest shall be transmitted to ACC by email in a standard format provided by ACC. The Customer also agrees that the Passenger manifest will be distributed to third parties (which may be situated outside the European Economic Area) in order that the Aircraft Operator and ACC can perform their respective obligations to the Customer. The Customer shall ensure, and warrants, that the manifest shall be complete, accurate and true.
10.2 The Customer shall be responsible for ensuring, and warrants, that each Passenger is in possession of all the necessary passports, visas, health certificates, and other similar documents and for ensuring that Passengers observe and comply with all laws, rules and regulations in relation to their travel. The Customer shall be responsible for all immigration and customs charges in respect of Passengers and their baggage.
10.3 Carriage of Passengers and baggage arranged hereunder is subject to the Aircraft Operator’s General Conditions of Carriage.
11 Data Protection
11.1 In the event ACC processes personal data in the course of performing its obligations under this Agreement, the parties agree that, for the purposes of the GDPR, the Customer shall be the controller and ACC shall be the processor.
11.2 The subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects shall be as set out below, unless otherwise stated in this Agreement:
|Subject-matter of the processing||The performance of the Flight Programme and this Agreement.|
|Duration of the processing||The duration of this Agreement and for such further time as the parties shall agree in writing.|
|Nature and purpose of the processing||The purposes of providing the Services.|
|Type(s) of personal data||Name, contact details of Passengers.|
|Categories of data subjects||Passengers and employees or other representatives of the Customer.|
|Sub-processors and sub-contractors||As described in clause 11.3 below and otherwise notified to the Customer from time to time.|
11.3 For these purposes the Customer authorises ACC and the Aircraft Operator to retain and use personal data and transmit it to companies involved in providing transportation or related services and facilities, data processors working for ACC and/or the Aircraft Operator, ACC’s agents, government enforcement agencies, credit and payment card companies. This may involve sending personal data outside the European Economic Area.
11.4 ACC, to the extent it is acting as processor in respect of such personal data, agrees to comply with the obligations of a processor set out in Article 28(3) of the GDPR and this Agreement shall be deemed to include those obligations and impose them on ACC.
11.5 The Customer consents to ACC engaging sub-processors in relation to the personal data and:
(a) in particular, the Customer consents to the engagement of the sub-processors referred to in clause 11.2; and
(b) ACC shall inform the Customer of any intended changes concerning the addition or replacement of such processors.
11.6 The Customer warrants and represents that:
(a) it has all authority, grounds, rights and consents necessary to enable ACC to process the personal data in accordance with the GDPR for the purposes of this Agreement;
(b) it shall comply with the GDPR and all other applicable laws and regulations, relevant industry codes of practice and guidance in relation to the processing of personal data; and
(c) the information set out in clause 11.2 is accurate.
11.7 “Controller”, “data subject”, “personal data”, “process”, “processor” and “supervisory authority” shall, for the purposes of this clause 9, have the meanings set out in the General Data Protection Regulation (Regulation (EU) 2016/679), or similar legislation as implemented under English law (including any national implementing laws, regulations and secondary legislation), in each case as applicable and in force in the United Kingdom from time to time (“GDPR”).
12.1 The terms and conditions of this Agreement are confidential to the parties who acknowledge that it contains commercially sensitive information and proprietary information which both parties agree to keep strictly confidential as between themselves, as may be reasonably required in order to perform their obligations under this Agreement.
13.1 The Customer shall not be entitled to assign the benefit of this Agreement or any part hereof to any other person without the consent in writing of ACC nor to sub‑contract the performance of its obligations hereunder to some other person.
13.2 This Agreement is entered into by the Customer both on its own behalf and as agent for all persons and the owners of all goods carried in the aircraft.
13.3 ACC shall be entitled to assign, novate, charge, sub-contract or hold on trust for another all or any of its rights and obligations under this Agreement. The Customer shall enter into any documentation reasonably required by ACC in order to effect any such transfers to third parties.
13.4 Any notice to be given under this Agreement shall be in writing (but excluding fax transmission and electronic mail) and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to the intended recipient’s address. The address of a party for service of notices is the address set out at the beginning of this Agreement or such other address as a party may designate by notice given in accordance with this clause 13.4. A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
13.5 Without prejudice to its other rights and remedies ACC shall be entitled but not obliged at any time or times without notice to the Customer to set off any liability of the Customer to ACC against any liability of ACC to the Customer (in either case however arising) whether any such liability is present or future, liquidated or unliquidated.
13.6 Each party acknowledges and agrees that:
(a) in entering into this Agreement it does not rely on and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to this Agreement or not) which is not expressly set out in this Agreement; and
(b) the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in this Agreement shall be for breach of contract under the terms of this Agreement.
13.7 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.8 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.9 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13.10 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
13.11 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.12 No provision of this Agreement shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
14 Law & Jurisdiction
14.1 This Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) shall be governed by and construed in accordance with the laws of England and Wales. The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to adjudicate any dispute which arises in connection with this Agreement as set out above. ACC shall retain the right to bring proceedings against the Customer in any other court which has jurisdiction.
14.2 Alternatively, at the option of ACC, any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration. The arbitral tribunal shall consist of one arbitrator. The seat of arbitration shall be London, England and the language of the arbitration shall be English.