FLYINGCARD GENERAL TERMS AND CONDITIONS
0. DEFINITIONS
0.1. "Aircraft": The aircraft of make and model as specified in the Specific Conditions of this Agreement, it being understood and agreed that aircraft of the same class, comfort, capacity and safety level also qualify as "Substitute Aircraft" under this Agreement, and aircraft of higher or lower class, comfort, capacity, but with equal safety level also qualify as "Alternative Aircraft", provided anyhow compliance with the operational and airworthiness requirements as set out further in this Agreement. Consequently, and unless otherwise specified, "Aircraft" does also mean "Substitute Aircraft" and "Alternative Aircraft".
0.2. "Substitute Aircraft": Aircraft of the same class, comfort and safety level as the Aircraft, operated or by the Provider or by a third party operator, provided compliance with the operational and airworthiness requirements as set out further in this Agreement, and to which the same, Flight Time, Hourly Rate and Exclusions apply as the Aircraft as specified in the Specific Conditions.
0.3. "Alternative Aircraft": Upgrade or downgrade of the Aircraft as specified in the Specific Conditions in regards to class of make and model, upon choice of the Holder, and to which different Flight Time, Hourly Rate and Exclusions apply - as accepted by the Holder.
0.4. "Itinerary": An Itinerary is a consecutive sequence of occupied Flight Legs performed with the Aircraft on behalf of the same FLYINGCARD Holder within the same mission.
0.5. "Flight Leg": An air transportation service performed by the Aircraft between two airports, being an airport of departure and airport of arrival.
0.6. "Occupied Flight Leg" or "Live Flight Leg": A Flight Leg with passengers on board.
0.7. “Empty Flight Leg”: A Flight Leg without passengers on board.
0.8. "Flight Time": In contrary to the definition as per ICAO Annex I, Flight Time is the time of a Flight Leg calculated between wheels-off to wheels-on the ground, so airborne time.
0.9. “Block Time”: The Block Time is defined as what is defined as ‘flight time’ as per ICAO Annex I, being the total time of the Flight Leg calculated from the moment the Aircraft first moves for the purpose of taking off until the moment it finally comes to rest at the end of the flight, i.e. chocks-away to chocks-under,
0.10. "FLYINGCARD validity zone": the FLYINGCARD conditions only apply to itineraries for which at least 1 occupied flight leg departs from or arrives at an airport located in 1 of the following countries: Andorra, Belgium, Croatia, Czech Republic, Denmark, France (including Corsica but excluding other off-shore territories), Germany, Italy, Luxembourg, Malta, Monaco, Netherlands, Republic of Ireland, San Marino, Slovenia, Spain (including the Balearic Isles but excluding other off-shore territories), Switzerland, United Kingdom.
1. AIR TRANSPORTATION SERVICES WITH AIRCRAFT
1.1. The FLYINGCARD Provider agrees to perform on behalf of the FLYINGCARD Holder air transportation services for a number of Flight Time hours with the Aircraft of make and type, all as specified in the Specific Conditions.
1.2. The availability of such Aircraft is not and never guaranteed, unless if the Itinerary is confirmed by the Holder to the Provider at least 72 (seventy-two) hours before estimated time of departure of the first Flight Leg of the Itinerary, and, provided the Holder accepts a scheduling flexibility (time of departure of the first Flight Leg of the Itinerary) of about 2 (two) hours and a Substitute Aircraft is accepted by the Holder.
1.3. Upon request of the FLYINGCARD Holder, the FLYINGCARD Provider may make available an Alternative Aircraft for which different Hourly Rates and Exclusions apply and as specified in the Specific Conditions.
2. FLYINGCARD PRICE - ENTITLEMENT - INVOICING - PAYMENT
2.1. The FLYINGCARD Holder will pay the FLYINGCARD Provider the full "FLYINGCARD Price" as specified in the Specific Conditions as a condition precedent to the validity of a FLYINGCARD Agreement. Such payment will constitute an entitlement to the FLYINGCARD Holder to take air transportation services to be provided by the Provider with the Aircraft (the "Entitlement") congruent to the provisions hereto.
The Entitlement can be consumed by the Holder subject to following debets/credits:
(i) Hourly Rate multiplication
Per Occupied Flight Leg flown, the Provider will debet the Holder the Hourly Rate as specified in the Specific Conditions (the "Hourly Rate"), and which includes any and all indirect and direct operating costs for the air transportation services provided and performed with the Aircraft - except the debits for the "Exclusions" as specified sub (ii) herewith, multiplied by the real Flight Time flown for each such Flight Leg flown with the Aircraft for the Holder (or the quoted Flight Time of such Flight Leg in the event of Alternative or Substitute Aircraft), increased with 0,2 hours, and this for a minimum of 1,2 (one point two) hours per Flight Leg.
The Flight Time will be decreased with 15% (fifteen percent) in the event of a day return Itinerary (same airport departure/arrival on same day within airport opening hours), provided the requirement of minimum 1,2 (one point two) hours Flight Time per Flight Leg remains in force.
(ii) Exclusions - to be deducted from the Entitlement:
(a) Immobilisation of the Aircraft during the Itinerary on request of the Holder: 1,5 x Hourly Rate debit per day of immobilisation of the Aircraft without any Flight Leg being performed.
(b) Cancellation of an Itinerary by the Holder after flight reservation congruent to clause 3.1. herewith: real costs as evidenced by the Provider to be debited from the Entitlement.
(c) Airport and handling fees exceeding the amounts per type of aircraft as specified in the Specific Conditions ("Maximum Airport and Handling Fees") for the amount in excess thereto.
(d) As long as at least 1 Occupied Flight Leg of the itinerary departs from or arrives in the FLYINGCARD validity zone the Hourly Rate is only charged for the Occupied Flight Legs. If this condition is not met, some empty Flight Legs flown by and to position the Aircraft for the performance of the air transportation services considered, are excluded and will be debited from the Entitlement.
(e) Inflight services other than standard catering, as requested by the Holder and quoted by the Provider.
(f) Ground services other than standard, as requested by the Holder and quoted by the Provider, or as necessitated due to the circumstances.
2.2. The FLYINGCARD will be invoiced for the full FLYINGCARD Price upon signature of this Agreement. This invoice will be paid prior to inception of the term of this Agreement.
An Exclusion will, upon election of the Holder, or (i) be deducted from the Entitlement by conversion of the Exclusions to Flight Hours, or (ii) be invoiced after each Itinerary during which the Exclusion(s) occur. Such invoices will be payable by the Holder within 8 (eight) days from date of invoice.
As the invoice will be issued for or are related to international flights only, no VAT will apply as exempted pursuant to article 41 §1,1° Belgian VAT Code. In the event domestic flights are performed, VAT will be charged at the applicable rate by deduction to the Entitlement.
3. TERM
The Entitlement has to be flown within a term of 12 (twelve) months starting on the date as specified in the Specific Conditions. Extension with another 3 (three) months or more will be subject to an eventual price increase in comparison with the Hourly Rates and Exclusions as referred to in clause 2.1. Such price increase will be calculated, a.o., in function of variations of PLATTS Rotterdam fuel price, EUR/USD exchange rate and Belgian Health Index, calculated based on the rates valid upon inception of the term of this Agreement and those applicable upon time of extension.
4. FLIGHT RESERVATIONS - CONFIRMATION
4.1. Any flight reservation for a certain Itinerary will be made in writing (e-mail, with acknowledgment of receipt) by the FLYINGCARD Holder minimum 24 (twenty-four) hours before estimated time of departure of the first Flight Leg of the Itinerary, unless otherwise required under the applicable regulations for the airport and/or countries concerned, and will mention:
(i) the airport of departure and arrival with estimated time of departure for each Flight Leg of the Itinerary;
(ii) the names of the passengers boarding on each Flight Leg of the Itinerary, including all details as required by the authorities concerned.
4.2. The Provider will confirm the performance of the Itinerary in writing (e-mail, with acknowledgment of receipt), which confirmation will include:
(i) Aircraft type (and registration - if known);
(ii) the airport of departure and arrival with scheduled time of departure and scheduled time of arrival for each Flight Leg of the Itinerary;
(iii) the estimated number of Flight Hours per Flight Leg of the Itinerary and the eventual Exclusions that may apply for the debit to the Entitlement.
5. APPLICABLE LAW - JURISDICTION
5.1. This agreement, that is considered to constitute the entire understanding between the FLYINGCARD Provider and the FLYINGCARD Holder, is construed according to and governed by the laws of the Kingdom of Belgium.
5.2. The parties hereby will submit to the exclusive jurisdiction of the Belgian Courts. Any dispute or difference arising out of this Agreement shall be, after a first attempt to settle amicably, referred to the jurisdiction of the Courts of Antwerp.
6. GENERAL CONDITIONS OF CARRIAGE
6.1. Operating Licence - Air Operator Certificate - Airworthiness - Operational Control
6.1.1. The Aircraft will be operated by the FLYINGCARD Provider or a subcontracted operator for which the FLYINGCARD Provider will act as air charter broker. The FLYINGCARD Provider herewith covenants that any Aircraft operated under this Agreement, or by itself or by a third party, will be operated under a valid operating licence and air operator certificate for public air transportation compliant or equivalent to, amongst others, Regulation (EC) N° 216/2008 (basic regulation), Regulation (EC) 1008/2008 (licensing of air carriers and common rules for the operation of air services) , Regulation (EU) 965/2012 (technical requirements and administrative procedures related to air operations), and the national applicable legislation as issued by the authorities under which competency the Aircraft is operated - or registered what concerns airworthiness oversight - and the operating licence and air operator certificate are issued.
The FLYINGCARD Holder undertakes not to jeopardize or to prejudice the position of and to hold free and harmless the FLYINGCARD Provider under the requirements of the operating licence and air operator certificate of the FLYINGCARD Provider acting as operator or under the requirements of the Provider acting as air charter broker, whichever is applicable.
6.1.2. The FLYINGCARD Holder agrees that the operator of the Aircraft has full operational control and responsibility over the Aircraft and the Flight Legs to be conducted with the Aircraft under this Agreement. As such, and in respect of the safe and secure operation of the Aircraft, the FLYINGCARD Provider, by virtue of the captain of the Aircraft, shall, amongst others, have complete authority and discretion (i) as to whether or not a flight should be undertaken, (ii) in respect of the amount of space and load available on the Aircraft for utilisation and its distribution, (iii) as to where landings should be made in deviation to the requested flight schedule. The FLYINGCARD Holder undertakes to accept all such decisions by the captain of the Aircraft.
6.1.3. The EASA Part-M Continuing Airworthiness Management Organization of the operator of the Aircraft shall assume full airworthiness responsibility over the Aircraft in accordance with Regulation (EU) N° 2042/2003, implementing Regulation (EU) N° 216/2008.
6.2. Deviation and Delay
6.2.1. The FLYINGCARD Provider shall not be responsible for deviation and delays caused by air traffic control, slot restrictions, labour and civil disturbances, mechanical failures to the Aircraft or ground equipment, crew duty time limitations for crew duties beyond the accepted flight schedule, local, national or international regulations, severe weather conditions or other causes beyond their reasonable control of the FLYINGCARD Provider.
6.2.2. In case of delay in the commencement or completion of any of the Flight Legs considered under this Agreement, caused by the FLYINGCARD Holder or anyone acting on his behalf, the FLYINGCARD Provider will be entitled to claim indemnification for the damage suffered.
6.2.3. The FLYINGCARD Holder may ask the FLYINGCARD Provider to cancel or to make reasonable alterations, deviations or delays to a confirmed flight schedule at any time, in which case the FLYINGCARD Provider reserves the right to charge cost for the additional flight preparation resulting from the cancellation, alteration, deviation or delay in question.
6.3. Authorizations, Permits and Documents
6.3.1. Provided that the FLYINGCARD Holder undertakes to provide the FLYINGCARD Provider with the flight schedule of the Itinerary with sufficient prior notice enabling the FLYINGCARD Provider to process or to have processed the applications within the applicable time frames, the FLYINGCARD Provider covenants that the authorizations or permits from governmental or other authorities necessary for the performance of the Flight Legs considered under the Itinerary will be timely applied for. However, the FLYINGCARD Provider will not be liable for any refusal, untimely granting or cancellation of authorization or permit provided that the FLYINGCARD Provider has processed the applications within the time frames as applicable for the Flight Legs concerned.
6.3.2. The FLYINGCARD Provider will issue documents in accordance with the requirements, practices and procedures of the FLYINGCARD Provider. The FLYINGCARD Holder and its passengers will be bound by the terms and conditions of the issued traffic documents. The FLYINGCARD Holder undertakes to cooperate in supplying all information in connection with the passengers and their baggage in due time as required for the completion of the documents. The FLYINGCARD Holder will comply with and cause all passengers and owners of goods carried to observe and comply with all customs, police, public health and other regulations which are applicable in the state under which rules the FLYINGCARD Provider is operating and in the states overflown and where landings are made.
6.4. Subcontracting
6.4.1. The FLYINGCARD Holder undertakes to use the air transportation services with the Aircraft under this Agreement for the own use by the FLYINGCARD Holder. The FLYINGCARD Holder will use the entire capacity of the Aircraft for the transportation of passengers of the FLYINGCARD Holder, who is not entitled to subcontract by reselling or sub chartering neither any part nor the entire capacity of the Aircraft.
6.4.2. If the Aircraft becomes unserviceable or unavailable - for whatever reason beyond the control of the FLYINGCARD Provider, including technical problems with the Aircraft - the FLYINGCARD Provider shall have the right to cancel the flight(s) contemplated under the flight schedule of the Itinerary as requested under this Agreement. The FLYINGCARD Provider will have no other or further obligation or liability then to use its best efforts to source internally or externally a Substitute or Alternative Aircraft for the FLYINGCARD Holder in order to undertake or to continue to undertake the requested flight schedule of the Itinerary. In the event that such Substitute Aircraft or Alternative Aircraft cannot be offered under the terms and conditions of this Agreement, the FLYINGCARD Provider shall be entitled to offer a separate ad hoc agreement for such Substitute or Alternative Aircraft, and the FLYINGCARD Holder agrees to reasonably accept those conditions provided those conditions are within the scope of the current market conditions applicable at that time.
6.5. Default by the FLYINGCARD Holder - Cancellation
In the event of any breach by the FLYINGCARD Holder of any provision of this Agreement, the FLYINGCARD Provider shall have the right to cancel this Agreement, and, in the event that an Itinerary has commenced, to terminate such Itinerary all without liability of any kind to the FLYINGCARD Provider and, to retain all amounts as have been paid by the FLYINGCARD Holder and, to demand all other amounts due under the terms of this Agreement regardless of its cancellation. Neither the payment of the FLYINGCARD Price nor the termination of this Agreement for any of the aforesaid reasons shall affect the right of the FLYINGCARD Provider to collect damages from the FLYINGCARD Holder.
6.6. General Liability
6.6.1. The FLYINGCARD Holder shall indemnify and hold harmless the FLYINGCARD Provider, its officers, employees and agents against any costs, claims, damages or liability of any sort that may fall upon the FLYINGCARD Provider by reason of any failure by the FLYINGCARD Holder to comply with this Agreement or with any regulation or condition in force.
6.6.2. The FLYINGCARD Provider shall never be subject to any other or higher liability than the liability provided in Regulation (EU) N° 261/2004, Regulation (EU) N° 2027/1997, as amended by Regulation (EU) N° 889/2002, or if not applicable, as provided in the Convention of Montreal of May 28, 1999, or the Warsaw Convention of October 12, 1929, or that Convention as amended at The Hague on September 28, 1955, or, in case of substitution by another operator, the Convention of Guadalajara of September 18, 1961, whichever is applicable, even when the carriage is not an international carriage as defined by those conventions, and even if the limitation of liability is not notified by means of a travel document issued, if any. If carriage is performed by means of substitution by a Non-European Union Carrier for flight(s) departing or arriving within the European Union, the FLYINGCARD Holder shall inform the passengers in writing on the non-appliance of Regulation (EU) N° 2027/1997 as amended by Regulation (EU) N° 889/2002.
6.7. Insurance Coverage
The FLYINGCARD Provider shall, throughout the term of the FLYINGCARD Agreement, maintain the insurance coverage according to the liability requirements as laid down in Regulation (EU) N° 785/2004.
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