Effective Date: January 30, 2020
TERMS OF SALES & SERVICE AGREEMENT
This Charter Service Agreement (“Agreement”) is effective as of the day it is executed by and between GROWIN FLY, LDA, a duly registered limited liability company under Commercial Registry No. 515864463, and EU VAT No. PT515864463, with its primary place of business at Largo Do Sol Posto, No.1, 8000-150, Portugal, with (hereinafter referred to as “GrowIN Fly”) and the Client (hereinafter referred to as “Client”).
By using the services provided by GrowIN Fly, as agent for Client, Client agrees to be bound by the terms and conditions set forth below. Client acknowledges and agrees that the aircraft charter business and air charter brokerage business is regulated by certain national, international, and local governmental laws and regulations and that such laws, regulations and best practices in the industry may change from time-to-time and, accordingly, GrowIN Fly shall have the right to modify this Agreement at any time by providing written notice to Client, and such modifications to this Agreement shall be effective immediately upon GrowIN Fly providing notice of the same to Client. By executing this Agreement, the Client agrees to periodically review this Agreement and to be aware of such modifications to this Agreement. Accordingly, the Client’s continued use of GrowIN Fly services shall be deemed the Client’s conclusive acceptance of any modifications to this Agreement.
1. General: GrowIN Fly desires to act as an agent for Client and arrange charter services between Client and one or more certified air carriers (hereinafter referred to as “Carrier”) under applicable regulations of the European Aviation Safety Agency (“EASA”) and European Commission (“EC”). Once Client has confirmed a charter, GrowIN Fly shall be authorized, as Client’s agent, to enter into a charter contract with Carrier. Flights will be operated in accordance with the European Union Aviation Regulation (“EASA”) and Carrier will have operational control of the aircraft at all times. CLIENT ACKNOWLEDGES AND AGREES THAT GROWIN FLY IS ONLY ACTING AS AN AGENT OF CLIENT FOR THE ARRANGEMENT OF THE CHARTER FLIGHTS DESCRIBED HEREIN. This Agreement shall be binding and remain in full force for each charter flight arranged by GrowIN Fly until it is canceled in writing by either party. This Agreement shall be supplemented for each specific charter flight by a separate “Charter Quote”, which will include the flight details, pricing, cancellation terms, restrictions, description of the aircraft, and other applicable information and payment instructions.
2. Costs and Expenses: The Charter Quote for each specific trip shall set forth the charter price and any associated costs and expenses for each unique charter. Client shall be responsible for additional charges incurred by GrowIN Fly in the provision of the services described in this Agreement and Client may be billed separately for the same or such costs and expenses may be added to the Charter Quote pricing (if known at the time the Charter Quote is executed); such additional costs and expenses shall include, without limitation, catering costs, ground transportation costs, flight phone costs, de-icing costs, fuel surcharges, crew expenses, air space navigation fees, weather service fees, international fees, and such other costs and expenses as are incidental to charter services. Client further agrees that it shall be responsible for all sales, use, VAT, stamp, FET, transfer, segment fees and other similar taxes, fees, duties and penalties that may be imposed by any local, foreign or other governmental authority as a result of the flights and services provided in connection with this Agreement (“Taxes”). Client shall defend, indemnify and hold GrowIN Fly harmless against any such Taxes which are the obligation of Client hereunder. The obligations of the Client under this Section shall survive the termination of this Agreement.
3. Payment: The payment for each charter flight shall be due upon confirmation of each charter; payments must be received in order to confirm each flight as GrowIN Fly cannot guarantee the availability of the agreed-upon aircraft until payment has been received. At the discretion of Growin Fly, credit cards may be accepted for payment of charges and such payments will be subject to a 4% additional fee. Additional payment terms may be arranged and agreed upon by GrowIN Fly and Client which shall be listed in the Charter Quote for each specific flight.
4. Authorized Flight Schedulers:
A. The Individuals listed below are authorized by Client to confirm, alter or cancel each charter flight arranged by GrowIN Fly on behalf of Client:
NAME: Anas El Arras
TITLE/RELATIONSHIP: Chief Executive Officer
PHONE: +351920314794
E-MAIL: anas@growinfly.com
NAME: Tarek El Fassi
TITLE/RELATIONSHIP: Sales Director – France
PHONE: +33689762137
E-MAIL: tarek@growinfly.com
B. The client is responsible for immediately notifying GrowIN Fly in writing via email or if the list of authorized flight schedulers has changed in any way. Client shall be held responsible for any and all costs incurred by GrowIN Fly as a direct result of the Client’s failure to inform GrowIN Fly of such alterations in authorized schedulers. This includes any fees incurred by an individual whose authority has been revoked but the Client has not notified GrowINFly in writing.
C. In order to schedule a flight, the Client must contact GrowIN Fly via the website, phone, email, or other previously agreed-upon methods. The aircraft will not be confirmed or deemed chartered by Client until the full amount of the flight, which is listed on the Charter Quote has been received by GrowIN Fly unless previously agreed upon and noted in the Charter Quote.
5. Operation: The carrier and the captain of the aircraft are authorized to take all necessary measures to ensure safety. He/she/it shall have full authority and complete discretion as to whether there shall be any deviation from the specified route and where alternate and/or immediate landings shall be made. Such determinations shall be binding upon the Client and all passengers. GrowIN Fly does not control operations of Carrier, which under applicable FARs are the sole responsibility of Carrier, and GrowIN Fly is not liable for the operation, action, and undertakings of Carrier.
6. Liability for Damages: The client shall be held liable for any and all damages to the aircraft and property of Carrier, which was caused by the Client or Client’s guests.
7. Limitation of Liability: GrowIN Fly shall not be held liable for loss, injury, damage, delay or cancellation caused by or resulting from any act of God, economic or political sanctions, quarantine, failure or refusal on the part of any governmental agency to grant or issue approvals, clearance, permits or operating authority, rights or civil commotion, military emergency, war or war hazards, fuel shortages, weather conditions, mechanical breakdown, strikes or labor problems, or occurrences of similar or dissimilar nature which through no fault of GrowIN Fly shall prevent, delay or interrupt the furnishing or operation or performance of such transportation. In the event of any such occurrence, GrowIN Fly will use commercially reasonable efforts to provide other aircraft to meet the Client’s scheduled flight. GrowIN Fly shall not be responsible or liable for the transportation of passengers who fail to report at the specified Fixed Based Operator (FBO) at the departure airport, at the departure time of the flight, or who are, through no fault of GrowIN Fly, not aboard at the time of departure. If one or more members of one group fail to report or board, the Carrier may depart as scheduled and Carrier and/or GrowIN Fly shall in no way be responsible for or to Client or such individual for any damages and GrowIN Fly shall be deemed to have completed its contractual obligation to Client. GROWIN FLY SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES; (B) AMOUNTS IN EXCESS OF THE PRICE PAID FOR A PARTICULAR FLIGHT; OR (C) MATTER BEYOND ITS REASONABLE CONTROL. GrowIN Fly shall not have, nor assume any responsibility or liability to Client for activities performed by Carrier. The carrier shall be solely responsible for all claims arising out of any and all occurrences, accidents or incidents that occur on or in connection with the aircraft operated by the Carrier, including, without limitation, all personal injuries, property damage or death. GrowIN Fly is not responsible for any wrongful, or negligent act or omission by the Carrier or its personnel and is not responsible for any personal injury, property damage, accident, delay, inconvenience, or change in the itinerary that may occur. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. Client agrees that Client shall indemnify, defend, and hold harmless GrowIn Fly and GrowIN Fly officers, directors, agents and employees, and each of them (collectively the “Indemnitee(s)”) from and against all claims, suits, actions, judgments, fines, penalties, damages, losses, and liabilities, including, but not limited to third party claims and reasonable attorneys’ fees, costs of litigation, and other expenses relating thereto, including the cost of establishing the right of indemnification under this Agreement, which arise out of or are in connection with activities associated with this Agreement, which are made, asserted, assessed, or accrued against any Indemnitee by reason of injury or death to any person or the loss or damage to any real or personal property. The foregoing indemnities shall not apply to the extent of any gross negligence or willful misconduct of any Indemnitee.
8. Regulations: This Agreement is subject to all governmental laws, rules and regulations governing the flights contemplated hereunder, including, without limitation any rules and regulations of the EASA, the European Commission, which now or hereafter may be imposed or required.
9. Identification: The client is responsible for informing all passengers that prior to boarding the aircraft they must show at least one form of valid state/government-issued photo identification to Carrier for domestic flights. The client must show carrier a valid passport for any international flights and visas when required. GrowIN Fly is not liable for Carrier’s reasonable refusal to allow any passengers to board the aircraft who fails to provide appropriate identification.
10. Cancellation: In the event that the Client cancels any agreed-upon flight in connection with this Agreement, the Client and GrowIN Fly agree that the cancellation amount stated within the Charter Quote shall be retained by GrowIN Fly. All flight cancellations will be subject to the Carrier’s flight cancellation policies and the Client will be responsible for any cancellation or missed flight costs and expenses, including any fees associated therewith.
a.) All requests for services are subject to acceptance by Growin Fly. Growin Fly hereby expressly reserves the right to accept or reject any reservation requests for any reason, or for no reason, whatsoever. Your Charter Itinerary will be delivered by email from Growin Fly providing a confirmation number and the estimated price quote, and specifying the date(s) and departure time of travel, flight segments arranged on your behalf, aircraft type and other requests specified by you when booking your flight. You will be requested to sign and return a copy of the Charter Itinerary signifying confirmation of its contents and consent to these Standard Terms & Conditions.
b.) Client understands and acknowledges that the cancellation of any Reservation or portion thereof within four (4) calendar days of the scheduled departure date of the scheduled trip, will result in a cancellation charge of up to 100% of the quoted price for the trip. All trips canceled after the signed contract has been received by GrowIN Fly are subject to penalty depending on the operator’s terms. These Terms will be noted on the Charter Quote. Confirmed departures within seven (7) days of Peak Travel Days, as defined in Paragraph 2(d), below, are non-refundable, and the cancellation of any confirmed reservation within seven (7) days of departure either prior to or after the Peak Travel Days will result in a cancellation charge of up to 100% of the quoted price for the trip. The client acknowledges that any change in date, time, itinerary, number of passengers or type of aircraft may be deemed a cancellation and be subject to a cancellation charge. The client acknowledges that a no show will be considered a cancellation and the client will be charged 100% of the cost of the trip. Other types of cancellation charges may include, but are not limited to: costs incurred as a result of partial completion of itinerary, including but not limited to return of aircraft to its base, plus the greater of: (i) costs incurred for specifically positioning and repositioning an aircraft and flight crew in preparation for the canceled trip, (ii) flight charges equivalent to two hours of operation for each day of the canceled itinerary, or (iii) any fees incurred by GrowIN Fly as a result of the client’s cancellation. GrowIN Fly reserves the right to change the terms of its cancellation policy at any time. Any cancellation of any confirmed Charter Itinerary or portion thereof may be subject to the terms and conditions of the specific air carrier selected. GrowIN Fly assumes no responsibility for the disposition or cancellation of any reservation, either by the Client or the air carrier. If there is a mechanical difficulty or if contracted aircraft is no longer available, GrowIN Fly shall use best efforts to provide an alternate aircraft or carrier of similar quality. ALL ONE WAY CHARTER RESERVATIONS OR CHARTERS THAT END IN DIFFERENT DESTINATION THAN ORIGINAL DEPARTURE CITY ARE NON-CANCELABLE AND NON- REFUNDABLE AND ARE SUBJECT TO A100% CANCELLATION FEE AT TIME OF BOOKING.
c.) Peak Travel Days include the following: New Year’s Day, Easter Sunday, Passover, Christmas. The term Peak Travel Days includes the day noted, as well as the four days prior and four days after.
11. PRICE QUOTES: The cost estimate provided to Client for each specific Charter Itinerary, is subject to the following: Domestic and international flights may be subject to the country excise tax and country departure tax, respectively. GrowIN Fly will add the applicable tax, using the current rate, to each charter invoice, and the Client will pay such amounts. The client understands that the cost estimate provided by GrowIN Fly will include estimates for certain cost items. The Client will pay the actual amount of applicable taxes, flight fees, fuel surcharges, over-flight permits, landing charges, catering costs; ground transportation, flight phone, WI-FI, customs fees, crew trip expenses, and similar out-of-pocket expenses relating to the services provided should these amounts differ from the original cost estimate. ALL ONE WAY CHARTER RESERVATIONS ARE NON- CANCELABLE AND NON- REFUNDABLE AND ARE SUBJECT TO A100% CANCELLATION FEE AT THE TIME OF BOOKING. PLEASE NOTE THAT DE-ICING COST IS NOT INCLUDED IN THE QUOTE AND CAN VARY DEPENDING ON CONDITIONS AND SIZE OF AIRCRAFT. THE DE-ICING CHARGES WILL BE BILLED ACCORDINGLY AFTER THE TRIP IS COMPLETED. If a deviation from the original itinerary is requested by Client and agreed to by GrowIN Fly, or if any such deviation is caused or necessitated by Client’s actions, then the amount owed by the Client to GrowIN Fly may differ from the original cost.
12. Exclusions or Omissions: GrowIN Fly will be indemnified and held harmless by the Client for any misrepresentations presented by the Carrier, on the GrowIN Fly website or otherwise. Any exclusions or omissions either express or implied are not the responsibility of GrowIN Fly.
13. Termination of Agreement: GrowIN Fly and Client agree that either party may terminate this Agreement at any time with written notice. The client is obligated to pay all amounts due to GrowIN Fly for services provided before this Agreement shall be terminated.
14. Binding Effect/Miscellaneous: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, but neither this Agreement nor any duty or right hereunder (except the right to receive money which is due hereunder) shall be voluntarily assigned by any party without the written consent of the other party, which consent shall not be unreasonably withheld. If any provision of this Agreement is invalid, void or unenforceable, the remainder of this Agreement shall remain in full force. This Agreement may be fully executed in two (2) or more separate counterparts by each of the parties hereto, all such counterparts together constituting but one and the same instrument. Such counterparts may be exchanged via facsimile (or other electronic) transmission and any facsimile or electronic signatures shall be binding. All communications, directions, approvals, instructions, requests, and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given or made when delivered personally or transmitted electronically by e-mail or facsimile, receipt acknowledged, in each case in accordance with the contact information set forth below the parties respective signature blocks. In the event it becomes necessary to enforce the terms of this Agreement by litigation or otherwise, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs, including any such fees or costs arising from subsequent appeals and efforts to execute on any judgment.
15. Disclosures: GROWIN FLY ACTS AS AN AGENT OF ITS CLIENTS AND SERVES ON THEIR BEHALF TO ARRANGE CHARTER FLIGHTS. GROWIN FLY DOES NOT OWN OR OPERATE AIRCRAFT AND IS NOT A DIRECT OR INDIRECT AIR CARRIER. ALL CHARTER FLIGHTS ASSOCIATED WITH GROWIN FLY ARE OPERATED BY THIRD PARTY AOC CERTIFIED PART AIR CARRIERS. OPERATING THE FLIGHTS UNDER THIS AGREEMENT EXERCISES FULL OPERATIONAL CONTROL OF THE AIRCRAFT AT ALL TIMES. CARRIERS PROVIDING SERVICE UNDER THIS AGREEMENT MEET EASA REQUIREMENTS FOR COMMERCIAL TRANSPORTATION OF RETAIL CHARTER CLIENTS.
16. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Portuguese government and the European Union.