2. The Baltic Air Charter Association (“BACA”) has produced an Industry Standard ‘passenger aircraft charter agreement’ as a legal guide to its members and their private aviation customers.
3. Aircraft Operators using www.aviav.ru agree to adopt the following Standard Charter Terms in their dealings with Cofrance Members. The Standard Charter Terms are modelled substantially on BACA’s charter agreement, with the aim of providing consistency of contractual approach for Cofrance Members.
Charterer: The Cofrance Member (which shall include its representative(s) as applicable) making the Flight booking using www.aviav.ru whose details are set out in a Charter Contract.
Carrier: The Aircraft Operator whose quotation for provision of a Flight to the Charterer has been accepted by the Charterer in accordance with an Agreement and the terms of www.aviav.ru (as applicable) as detailed in a Charter Contract.
In these Standard Charter Terms unless the context otherwise requires:-
“Agreement” means these Standard Charter Terms, the Charter Contract and any Special Conditions.
“Aircraft” means any aircraft (including helicopters) operated in connection with any Flight.
“Charter Price” means the total amount set out in Cofrance invoice(s) issued in respect of a single Agreement (which includes Cofrance’s fee for facilitating an Agreement.).
“Flight” means a flight described in a Charter Contract.
“Charter Contract” means the online confirmation issued to the Charterer by www.aviav.ru confirming an aircraft charter and Flight details.
“Cofrance” means Cofrance SARL a French registered company (company number 79483540500018) having its registered office at 29 rue de France, 06000 Nice, France, FR VAT number FR79483540500018.
“Cofrance Exchange Rate” means the midpoint rate as published on www.oanda.com, plus a 2% currency administration fee.
“Cofrance Members” those persons who subscribe to use the services of Cofrance as are made available through www.aviav.ru or through any mobile application made available by Cofrance from time to time.
“Cofrance Tender Process” means the online process by which the Charterer submits a request for fulfilment of a Flight requirement. This is then responded to by one or more Aircraft Operators who can fulfil the Charterer’s itinerary requirements, submitting a quotation together with details of any Special Conditions or Charterer requirements.
“Special Conditions” means those variations to the Standard Charter Terms upon which the Carrier will perform the Flight for the Charterer and which, in the event of inconsistency with these Standard Charter Terms, take precedence as between the Parties.
2.1 The Carrier shall make available to the Charterer the Aircraft as specified in a Charter Contract and the Charterer shall take the Aircraft on charter from the Carrier upon the terms and conditions of an Agreement (including any Special Conditions which have been notified to the Charterer by the Carrier during the Cofrance Tender Process).
If the Charterer wishes to cancel any Flight(s) after confirmation of the related Agreement, the following rates will be paid immediately by the Charterer to Cofrance as agreed compensation for such cancellation:
50% of the Charter Price if cancelled after completion of an Agreement;
100% of the Charter Price if cancelled within 2 weeks of the scheduled departure time as set out in a Charter Contract.
4. CHARTER PRICE AND PAYMENT
4.1 Cofrance offers a payment gateway for Aircraft Operators through its services at www.aviav.ru . The Charterer shall pay Cofrance the Charter Price at the time, in the amount, currency and to the address specified in accordance with the provisions set out therefore in a Charter Contract.
4.2 The Charter Price is based on aviation fuel costs calculated on the Booking Date. If, for any reason whatsoever there shall be any increase in the cost of aviation fuel between the Booking Date and the date of operation of any Flight, then the Charterer shall, if so required by the Carrier, pay Cofrance on demand such amount as shall fully compensate the Carrier for such increase in costs.
4.3 If for any reason payment of the Charter Price or any instalment thereof shall not be made on the due date then the Charterer shall pay to the Carrier interest on the amount unpaid at the rate of 6 % per annum above the base rate for the time being of Lloyds TSB Bank plc, calculated on a daily basis from the due date until the date of payment (both before and after judgment), compounded monthly.
4.4 The Charter Price is agreed in the currency shown on the Charter Contract. On request from the Charterer Cofrance in its sole discretion may elect to accept settlement of the price in either in US Dollars, Euros or GBP Sterling. On request, a new invoice will be issued to the Charterer, converting the Charter Price using the Cofrance Exchange Rate on the date of issue of the invoice. If immediate payment is not received then Cofrance reserves the right to recalculate the conversion of the Charter Price into the Charterer’s requested currency at the date of payment, and issue a revised and/or further invoice for any additional amounts outstanding at the date of payment. All such invoices issued under an Agreement shall evidence the “Charter Price” of that Agreement and are subject to these Standard Charter Terms.
4.5 Payment of the Charter Price shall be made directly to the account specified by Cofrance which is authorised to accept payment on behalf of the Carrier and received in cleared funds in such account, no later than 2 weeks prior to the date of the Flight as set out in a Charter Contract. When Flights are booked within 2 weeks of the proposed date of the Flight, full and immediate payment of the Charter Price is required at the time of booking (subject to clause 4.13). At the request and cost of the Charterer, Cofrance can arrange for prepaid sums to be placed on hold in an escrow account. Time shall be of the essence for payment of the Charter Price and any other sums under any Agreement.
4.6 No set-off or counterclaim (whether arising in respect of an Agreement or any other carriage) shall entitle the Charterer to withhold payment of any sums whatsoever payable under or by reason of an Agreement.
4.7 The Charterer shall be responsible for reimbursing the Carrier on demand in respect of any de-icing costs incurred in connection with the performance of an Agreement. For a fee additional to the Charter Price, the Charterer may obtain a de-icing waiver through Cofrance. Further details of de-icing waivers made available through Cofrance are available here: www.aviav.ru
If the Charterer does not purchase a de-icing waiver, Cofrance shall implement a credit card hold of 2500 EUR or equivalent currency. This credit card hold shall be released on full settlement of the related outstanding invoice in respect of an Agreement by Charterer in accordance with these Standard Charter Terms. If the Charterer fails to make such settlement, the Charterer agrees that Cofrance shall be entitled to request payment of the sum on hold from the Charterer’s credit card.
4.8 In the event that the Charterer requests a change in routing or any other significant change (for example flight time change, passenger manifest change, change of airport or additional flight requirements) in respect of one or more Flights being undertaken by the Carrier under an Agreement and such requests are accommodated by the Carrier (which shall be at the Carrier’s sole discretion), Cofrance will issue an amended or replacement Flight Confirmation and the Charterer will pay on demand any additional costs set out therein.
4.9 Cofrance offers www.aviav.ru as an Aircraft charter booking platform and Cofrance acts as a facilitator for Aircraft Operators. Cofrance deducts from the Charter Price a facilitation fee before remitting funds received from the Charterer to the Carrier.
4.10 Payment of sums due under these Standard Charter Terms may be made by credit or debit card. If the Charterer makes payment of the Charter Price by credit or debit card then the Charterer shall be additionally responsible for card charges (currently 4%) incurred by Cofrance and/or the Carrier in facilitating payment by debit or credit card. For the avoidance of doubt, Debit and credit card charges are not refundable in the event of: (a)cancellation of Flight(s) or an Agreement, and/or (b) refund of pre-authorised payments taken by Cofrance from the Charterer’s credit card pursuant to clause 4.13.
4.11 If the Carrier is unable to perform a Flight in accordance with a Flight Confirmation due to an Aircraft technical failure, Cofrance shall use its reasonable commercial endeavours to find a suitable replacement Aircraft and shall disclose any extra costs to the Charterer. If Cofrance’s efforts are successful, but the Charterer elects not to accept the replacement Aircraft found by Cofrance, Cofrance shall be entitled to retain all sums due to it under these Standard Charter Terms (including Cofrance’s fee for facilitating an Agreement) had the Charterer accepted the replacement Aircraft. If Cofrance’s efforts are unsuccessful, the Charterer’s sole remedy shall be a full refund of the Charter Price (less Cofrance’s fee for facilitating an Agreement) in respect of that part of any Charter Contract which cannot be fulfilled due to Aircraft unavailability. Any such refund which relates to a partial cancellation of an Agreement shall be calculated on a pro rata basis as follows: percentage of total Charter Price (less Cofrance’s fee for facilitating an Agreement) to be repaid shall equal the percentage of total flight hours under the Charter Contract which will not be flown due to unavailability of the Aircraft. For example, if 7 flight hours of a total of 28 flight hours chartered were unavailable, the Charterer would be due a refund of 25% of the Charter Price (less Cofrance’s fee for facilitating an Agreement).
4.12 Unless agreed in advance of the Flight, WiFi charges are not included within the Charter Price. Any charges by the Carrier for WiFi used, that was not included in the Charter Agreement will be passed onto the Charterer to be paid on receipt of invoice.
4.13 If the Charterer pays the Charter Price by bank transfer within 2 weeks of the proposed date of the Flight, thenthe Charterer shall additionally provide to Cofrance credit card details using which Cofrance may complete pre-authorisation of the relevant Charter Price plus the 4% transaction fee payable pursuant to clause 4.10. If: (a) therelevant payment by bank transfer is not received by Cofrance’s bank within 3 working days (being any day other than a Saturday, Sunday, or public holiday when banks are generally open for normal business in London) after the Booking Date, or (b) the Charterer requests that Cofrance takes the relevant payment by credit card, then the pre-authorised payment of the Charter Price plus the 4% transaction fee will be taken from the Charterer’s card. If a bank transfer is received by or on behalf of Cofranceafter Cofrance has taken the relevant pre-authorised sums from the Charterer’scredit card, then (at the election of the Charterer) either: (i) the bank transfer will be refunded to the Charterer, or (ii) the pre-authorised payment will be refunded to the Charterer’s credit card (less the 4% transaction fee paid pursuant to clause 4.10 and any fees or charges levied on Cofrance in connection with refunding such pre-authorised credit card payment).
4.14 Flight bookings are based on internationally recognised ICAO (4 letter) and IATA (3 letter) airport codes and not by airport names which are subject to change and interpretation.
5. AIRCRAFT AND CREW
5.1 The Carrier shall be responsible for providing the Aircraft at the scheduled commencement of the Flight in a condition such that it is properly manned and equipped, fuelled and airworthy in accordance with the laws and regulations of the state of registration of the Aircraft. The Aircraft shall be operated by the Carrier in accordance with all applicable laws and regulations during the period of the Flight(s).
5.2 Subject to its general operational requirements, the Carrier shall use its reasonable endeavours to:
5.2.1 have Aircraft and operating personnel, including cabin staff ready to fly no later than thirty minutes prior to the Flight departure time set out in a Charter Contract;
5.2.2 have an operating personnel member available to meet passengers at entrance to airport, FBO or agreed meeting point; and
5.2.3 have an operating personnel member available to escort customers to their onward transport post disembarking a flight on arrival at destination
5.3 Cofrance shall use its reasonable endeavours to:
5.3.1 respond promptly to any Charterer communication and
5.3.2 inform Charterers as soon as reasonably practicable on becoming aware of possible delay for any reason to a Flight schedule. Cofrance’s highest priority is flight safety. As such, the captain of the Aircraft shall have complete discretion concerning preparation of the Aircraft for flight, whether a Flight shall be undertaken and/or whether a Flight is to be abandoned once undertaken. The Charterer shall accept as final and binding all decisions of the captain on all matters relating to the operation of the Aircraft, including any deviation from proposed route or where landing shall be made.
5.4 All ground and operating personnel, including cabin staff, are authorised to take orders from the Carrier only unless specific written agreement shall first have been obtained from the Carrier whereby certain defined instructions may be accepted by such personnel from the Charterer.
5.5 All Aircraft are designated non-smoking, unless confirmed to the Charterer in writing before the Flight. If smoking takes place on an Aircraft, the Charterer will be liable for all associated cleaning costs charged by the Carrier.
6. TRAFFIC DOCUMENTS
When required, the Carrier shall supply or procure all necessary documents relating to the carriage and Flight undertaken pursuant to an Agreement. The Charterer shall give Cofrance all necessary information and assistance to complete such documents as soon as possible after the making of an Agreement and, in any event, in sufficient time to be completed for issue to passengers.
7. FLIGHT TIMES, LOADING AND EMBARKATION
7.1 The Charterer shall be solely responsible for ensuring that passengers and their baggage arrive at the specified check-in point at the departure airport in sufficient time to be carried on any Flight. In the event that any passenger of the Charterer fails to arrive in sufficient time to be carried on the Flight the Carrier shall be under no liability whatsoever to the Charterer or to such passenger. The Carrier shall be under no obligation to make any alternative arrangements for any such passenger. If the Carrier, in its sole discretion, arranges for any such passenger to be carried on a later flight, the Charterer shall pay on demand to the Carrier or to Cofrance (as duly authorised to receive payments for the Carrier) such additional sum that the Carrier may specify for each such passenger to cover applicable passenger taxes and the administrative costs of the Carrier thereby incurred.
7.2 In the event of any delay (other than any delay for technical reasons the responsibility for which shall lie with the Carrier) deviation or diversion of any Flight, the Charterer shall be solely responsible for any and all accommodation, refreshments, meals, transportation or any other additional costs, expenses, losses, damages or liabilities of whatsoever nature incurred in respect of the Charterer’s passengers wherever and howsoever the same shall arise. All such costs, expenses, losses, damages or liabilities incurred by the Carrier shall be reimbursed by the Charterer to the Carrier on demand.
7.3 In the event that any passenger of the Charterer is refused entry at any destination airport, the Charterer shall indemnify and keep indemnified the Carrier, its officers, employees, servants and agents against any and all cost or expense whatsoever incurred by the Carrier in respect of that refusal (including but not limited to charges, fee, penalties, imposts or other expenses levied upon the Carrier or Cofrance by any immigration authority) and , in addition, all cost or expense incurred by the Carrier for any arrangements made by the Carrier to return such passengers to the country from which such passenger was originally carried.
7.4 Flights can only be confirmed once full payment has been received. Final cost of Flights is also subject to all crew availability, international overflight permits, airport slots and airport parking being in place and non-availability at any time may result in an increase in price of the charter.
8. OBLIGATIONS OF THE CHARTERER
8.1 The Charterer shall comply with all the requirements of the Carrier in relation to the performance of all of the Charterer’s obligations as set out in an Agreement.
8.2 The Charterer shall hold harmless and indemnify the Carrier and/or Cofrance (as applicable) from and against all claims, demands, liabilities, actions, proceedings and costs of any kind whatsoever arising from any default on the part of the Charterer or any passenger of the Charterer in complying with any of the provisions of an Agreement.
8.3 The Charterer shall comply in all respects with the conditions of all permits, licences and authorities granted for the Flights and will procure such compliance on the part of all its passengers.
8.4 The Charterer shall be responsible for the issue and delivery of all necessary passenger tickets, baggage checks and other necessary documents to all passengers.
8.5 The Charterer shall comply and shall procure that all its passengers shall comply with all applicable customs, police, public health, immigration and other lawful regulation of any state to/from or over which the Aircraft is or may be flown.
9. EXCLUSION OF LIABILITY/INDEMNITY
9.1 The Carrier shall be under no liability to the Charterer for any failure by it to perform its obligations under an Agreement arising from force majeure, labour disputes or strikes of any kind (including those of Carrier personnel) or lock-outs or any other cause beyond the control of the Carrier including accidents to or failure of the Aircraft engines, or any other part thereof or any machinery or apparatus used in connection therewith.
9.2 The Charterer shall indemnify the Carrier against any loss, damage, liabilities, costs or expenses of whatsoever nature caused to be suffered or incurred by the Carrier and its officers, employees agents or subcontractors arising out of any act or omission of the Charterer or its officers, employees or agents whether arising in contract or tort (including negligence) or otherwise.
9.3 The Carrier shall not be deemed to undertake any carriage to which an Agreement relates as a common carrier.
9.4 Carriage performed under a Charter Contract shall be subject to the conditions of carriage contained or referred to in the traffic documents of the Carrier including its applicable ‘General Conditions of Carriage’.
9.5 The indemnities contained in these Standard Charter Terms shall survive the termination of any Agreement.
10.1 Each Agreement may be terminated immediately upon written notice from Cofrance or the Carrier if the Charterer:
10.1.1 defaults in the payment of any amount payable hereunder on due date; or
10.1.2 behaves in a manner which in the reasonable opinion of Cofrance is likely to bring Cofrance into disrepute or otherwise to compromise or adversely affect the reputation and standing of Cofrance.
11. EFFECT OF DEFAULT
11.1 If an Agreement is terminated, then the Charterer shall (without prejudice to any other rights and remedies which the Carrier may have) pay forthwith to Cofrance, as payment gateway for the Carrier, all amounts then due and unpaid to the Carrier hereunder, together with interest thereon (if any) and the Charterer shall indemnify and keep the Carrier indemnified against all loss, damage, costs, expense, claim or liability incurred or sustained by the Carrier as a result of such termination and the Carrier shall be entitled to retain any initial deposit paid by the Charterer.
11.2 The Charterer shall indemnify the Carrier against any claims by any passenger of the Charterer arising out of the termination of an Agreement.
12. SET-OFF AND APPLICATION OF MONEYS
Only Cofrance, as payment gateway for the Carrier, may at any time without notice to the Charterer at its discretion set-off any amounts paid by the Charterer to the Carrier and/or Cofrance hereunder against any amounts then due to the Carrier and/or Cofrance under an Agreement or against any amount otherwise due at such time from the Charterer to the Carrier and/or Cofrance.
13.1 Any notice required to be given under an Agreement shall be in writing and shall be deemed duly given if left at or sent by first class post, email or facsimile message to the address herein stated of the party to whom it is to be given. Any such notice shall be deemed to be served at the time when the same is handed to or left at the address of the party to be served and if served by post on the day (not being a Sunday or Public Holiday) next following the day of posting or if served by email or facsimile message upon the day such message is sent.
13.2 Time shall be of the essence in respect of the Charterer’s performance of its obligations under any Agreement.
13.3 Each Agreement sets out the entire agreement and understanding between the parties or any of them in connection with the charter of the aircraft as described herein.
13.4 No party has relied on any warranty or representation of any other party except as expressly stated or referred to in an Agreement. The Carrier expressly disclaims all implied warranties, obligations and liabilities arising by law or otherwise, with respect to the Flights including without limitation any (a) implied warranty of merchantability or fitness for a particular purpose; (b) implied warranty arising from course of performance, course of dealing or usage of trade; or (c) implied warranty of noninfringement.
13.5 No claims shall be made against the Carrier in respect of any representation warranty indemnity or otherwise arising out of or in connection with the charter of the aircraft except where such representation, warranty or indemnity is expressly contained or incorporated in an Agreement.
13.6 No variation of an Agreement shall be effective unless made in writing and signed by both parties.
13.7 The Charter Price, payment terms and other commercial terms contained in each Agreement are confidential to the parties and may not be disclosed to third parties without prior approval.
13.8 No failure by the Carrier to exercise and no delay by the Carrier in exercising any right, power of privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law.
13.9 The Charterer shall not be entitled to assign the benefit of any Agreement.
13.10 Each Agreement shall be governed by and interpreted in accordance with English law and the parties hereto hereby submit to the non-exclusive jurisdiction of the English Court.
13.11 Charter Contracts (including any Special Terms) may be executed:
13.11.1 electronically (using electronic signature, advanced electronic signature, email, or otherwise) or by physical (written) signature of the relevant Charter Contract and/or Special Terms (as applicable). If the Charter Contract and/or Special Terms (as applicable) is executed electronically, the Charterer and Cofrance each hereby irrevocably consent to such Charter Contract or Special Terms (as applicable) being communicated, presented, and retained (wholly or partly) in electronic form; and
13.11.2 in any number of counterparts, including electronic counterparts, each of which (including electronic counterparts) will be an original but all of which together will constitute one and the same instrument. No counterpart (including electronic counterparts) shall be effective until each of the Charterer and Cofrance has executed at least one counterpart.