GENERAL TERMS AND CONDITIONS FOR CHARTER PARTIES
OF ALPHA AIRWAYS GMBH
(hereinafter referred to as „GTCAA“)
1. SCOPE OF APPLICATION, VALIDITY
1.1. The GTCAA shall apply to all charter parties entered into between Alpha Airways GmbH (hereinafter also referred to as „air carrier“) and the charterer. Any general terms and conditions or other different provisions of the charterer shall be of no effect for Alpha Airways GmbH.
1.2. Deviations from the GTCAA or subsequent modifications shall be effective only subject to the written approval of Alpha Airways GmbH. Oral agreements will be of no legal consequences. The same shall apply to any waiver of the written form.
1.3. Modifications of and amendments to the charter party must be expressly designated as such and must be made in writing to be legally effective.
1.4. The charterer agrees to make these GTCAA available for perusal to his air passengers and the consignors of freight.
2. APPLICABLE CONVENTIONS, ACTS AND PROVISIONS
For conveyance performed by the air carrier the following conventions, acts and provisions shall apply, in particular:
a) „General Terms and Conditions for Charter Parties“ (GTCAA) of Alpha Airways GmbH
b) „Convention for the Unification of Certain Rules Relating to International Carriage by Air“ (Warsaw Convention), signed in Warsaw on 12 Oktober 1929, the Warsaw Convention as amended by the Hague Protocol on 28 September 1955, the Warsaw Convention as amended by the Hague Protocol and the Additional Protocol No. 2 signed at Montreal (1975) as well as the Additional Convention of Guadalajara (1961), as amended, for damage arising during international air carriage.
c) Austrian law, the aviation law in particular, as well as any pertaining regulations as well as licensing requirements and orders regarding the conveyance within the boundaries of the Republic of Austria.
d) EU Council Regulation 2027/97 of Oktober 1997.
3. PRICING
3.1. The airfare includes the following services and expenses of the air carrier:
a) expenses for operation and maintenance of aircraft
b) remuneration of aircrew
c) premiums for insurance/s
d) check-in of air passengers, registration of their luggage or of freight
e) catering pursuant to air carrier’s standards
f) use of Iridium Mobile and office/entertainment system
g) international route charters
3.2. The following items, in particular, are included in the charter price in addition to the airfare, and are quoted separately:
a) accommodation costs for aircrew
b) agreed standing time of aircraft between arrival and departure at the destination
c) airfare for transfer to desired airport of charterer
3.3. The following items, in particular, are not included in the charter price, and will be charged separately to the charterer as referred to in the charter party:
a) landing charges, parking and sheltering charges as well as ground services and other clearance fees for the aircraft
b) passenger airport fees, unless directly payable by the air passenger
c) costs as well as other duties related to air passengers and luggage and payable by the air carrier apart from those mentioned above
d) call charges for use of Iridium Mobile
e) percentage mark up on the costs mentioned under a)-d) (handling fee)
3.4. The following items, in particular, are not included in the charter price, and are not at the basis of the charter party and are charged to the charterer separately:
a) additional expenses caused by deviations from the provisions of the charter party on the charterer’s request or as a consequence of modifications initiated by the charterer
b) additional costs incurred because of „force majeure“
3.5. The following items, in particular, are not included in the charter price, are not at the basis of the charter party and are payable by the charterer himself:
a) costs for visas and customs check, customs duties as well as other fees related to air passengers and luggage and payable by the charterer
b) costs for transportation of air passengers to and from the airport as well as parking fees for the charterer’s vehicle
3.6. Any alteration of the costs covered by the charter price caused by circumstances beyond the control of the air carrier, such as an increase in official duties or other expenses, occurring after the conclusion of the charter party and before completion of the agreed conveyance shall entitle the air carrier to an appropriate increase of the charter price.
3.7. Any increase in fuel prices will be borne by the air carrier up to 5%. Higher increases will be passed on to the charterer in full.
3.8. The amount of the charter price, its general service description and discounting for allocations is enclosed to the charter party as Annex Pricing/Ticket.
3.9. The airfare is generally calculated on the basis of the flying minutes computed by the air carrier. If less than 60 minutes are computed for the outbound and/or inbound flight, the minimum unit will be 60 minutes. The flying minutes taken as a basis for the airfare are approximate values. Final settlement will be based on the actual duration of the flight.
4. TERMS OF PAYMENT
4.1. The charter price shall be payable to the air carrier’s account specified in the charter party within 7 workdays after completion of the charter flight.
4.2. For the purchase of allocations an advance payment of 50% of the allocation purchase price has to be paid by the charterer on conclusion of the contract. After completion of a charter flight within the scope of an allocation 50% of the airfare are payable within 7 workdays.
4.3. All payments and expenses that are not included in the charter price and that have been paid by the air carrier in advance on behalf of the charterer shall be reimbursed by the charterer in the currency specified by the air carrier in the invoice. The charterer shall pay the amount within 7 workdays after receipt of the invoice without any deduction.
5. AIRCRAFT AND AIRCREW
5.1. The air carrier shall be obliged to provide, at the agreed beginning of the flight, an aircraft that is provided with an aircrew in compliance with the regulations, and that is properly equipped and fuelled. The aircrew must comprise at least two pilots. However, as far as legally permissible, the air carrier shall be entitled to carry out the flight with only one pilot, if the second pilot is prevented by an unavoidable event beyond the air carrier’s control.
5.2. The air carrier shall be entitled at any time to replace the aircraft by one or several other aircrafts suitable for the agreed conveyance.
5.3. The air carrier as well as the captain in charge shall be entitled to decide independently about the performance or non-performance of a flight or the performance or non-performance of landing and similar for reasons of safety or technical considerations, without any right to object on the part of the charterer.
5.4. In the event that, after conclusion of the charter party, the aircraft is reconfigured by official directive in such a way as to reduce the number of seats compared with the number originally agreed by contract, then the charterer shall be entitled to demand a pro-rata reduction of the charter price. If the air carrier refuses, the charterer may withdraw from the contract.
The air carrier shall be obliged to immediately notify any such reduction of seats to the charterer.
The charterer shall declare to the air carrier immediately his request for a reduction of the charter price and/or withdrawal, otherwise forfeiting his claim.
6. DOCUMENTS FOR AIR PASSENGERS, LUGGAGE AND FREIGHT
6.1. The air carrier shall be responsible for issuing tickets for all persons to be conveyed and their luggage.
6.2. The charterer shall be obliged to provide the air carrier with all necessary information such as the waybill and other information about air passengers, luggage and freight in such a way as to permit the timely issuing of the conveying documents. The obligation to inform must be complied with not later than 7 workdays before the charter flight, unless otherwise agreed upon in the charter party.
6.3. The charterer shall be responsible for the correctness and completeness of the data, as well as for any damage resulting from any incorrectness or incompleteness.
6.4. The charterer shall see to it that the air passengers are provided with the required personal travel papers and documents, entry permits, visas, etc, before the start of the flight.
6.5. The charterer shall be responsible that the air passengers or the consignors of freight comply with the passport and duty regulations, the regulations of the health authorities and all other applicable laws and regulations of the countries where landing is envisaged.
6.6. Any costs and fines charged for non-compliance with such provisions, laws and regulations shall be borne by the charterer, and the charterer shall indemnify the air carrier in this respect.
7. FLIGHT DOCUMENTS AND APPROVALS
7.1. The air carrier shall issue and obtain all documents and approvals needed for the performance of the flight on the basis of statutory and interstate provisions for air conveyance. The charterer shall be obliged to submit all necessary declarations and information in due time.
7.2. The air carrier shall not be liable for consequences resulting from the refusal to grant any such approval (e.g. flight and overflight approval, landing approval), provided that he has applied for the approval in due time and observing the correct sequence after having received the required documents and information from the charterer.
7.3. All other documents required in intrastate and interstate traffic, even for ways of conveyance other than air carriage, must be obtained by the charterer.
8. AIR PASSENGERS, LUGGAGE, FREIGHT
8.1. The air carrier and/or the captain in charge shall be entitled to decide on the acceptance of air passengers and reserve the right to refuse conveyance of air passengers for reasons of safety.
8.2. The free luggage per air passengers is 25 kg. No free luggage will be granted for children. Any exceptions from the luggage allowance will be regulated in the relevant annex.
8.3. Every air passenger may take along 5 kg of hand luggage. Additionally, one blanket, one coat, one camera, one pair of binoculars, one handbag and/or one briefcase as well as reasonable reading stuff per seat can be taken into the cabin.
8.4. Excess luggage and/or special luggage shall be regulated separately in the charter party.
8.5. The captain’s authority to define a lower weight limit per seat in individual cases for reasons of safety shall remain unaffected.
8.6. When freight is conveyed, loading and unloading of the aircraft shall be at the risk and expense of the charterer. The charterer shall be obliged to provide the required lashing material as specified by the air carrier.
8.7. The air carrier shall be entitled to use any part of the chartered payload not utilised by the charterer for his own purposes.
8.8. The charterer guarantees that
a) the cargo/luggage/consignment does not contain any objects that are liable to expose the aircraft or persons to danger, or the conveyance of which is prohibited by laws, regulations or other provisions of a state to be touched during the flight.
b) the cargo/luggage/consignment is suitable for air carriage and has been packed properly.
c) no animals whatsoever are taken along, unless specifically agreed.
9. FLIGHT SCHEDULE
9.1. The flight schedule is defined in the annex enclosed to the charter party and is binding for the charterer.
9.2. The times specified in the flight schedule and the conveyance documents are approximate times.
The air carrier will not guarantee keeping these times and shall be entitled to deviation, if so required by circumstances beyond his control, or for reasons of air safety. Any extra costs resulting therefrom for the charterer or the air passengers shall be borne by the charterer.
9.3. In the event of delays for reasons within the air carrier’s scope of responsibility the air carrier reserves the right to decide whether to transport the air passengers by other means or to accommodate them in hotels at the option and expense of the air carrier, until the flight can be performed.
As to the conveyance of cargo, the air carrier may decide between storage of the cargo until the flight can be performed, or alternative conveyance, at his expense.
9.4. If the air passengers are not at the airport in time, and/or if the luggage or the cargo is not available for loading in time, then the air carrier shall not be obliged to perform the flight behind schedule. The air carrier shall be entitled either to charge all extra costs incurred by him as a consequence of being behind schedule, including standing costs for the aircraft and the aircrew, to the charterer in addition to the agreed charter price, or to consider the flight of the charterer as cancelled and to claim the cancellation fee specified in paragraph 16.3.
10. CATERING
The air carrier will provide catering of beverages and food during the flight on the basis of his standards and depending on the time of the day and the travel class booked.
11. WAYBILL
The charterer shall be obliged to deliver a waybill to the air carrier or his handling agent not later than 7 workdays before departure, containing specific features (such as “Transit passengers from”, special assistance for air passengers, allocation of certain seats and similar), subject to separate agreements in the charter party, as may arise, in particular, as a consequence of the destination of the charter flight.
12. REFUSAL OF CONVEYANCE
12.1. The air carrier may refuse, in particular, the conveyance of air passengers, luggage or cargo in any of the cases mentioned below without creating any right of withdrawal on the part of the charterer:
a) conveyance of persons suffering from a communicable disease, or of persons whose presence must be expected to be a safety risk for the flight, or of persons who are guilty of having violated or tried to violate regulations of aeronautical authorities, of the border police or of customs.
b) conveyance of luggage or freight representing a safety risk and thus endangering the performance of the flight.
12.2 The charterer’s right to assign his claims under the charter party to any third party in part or in whole, or to transfer the chartered space or the chartered payload to any third party in part or in whole shall be subject to the air carrier’s written approval.
13. INSURANCE
13.1. The air carrier shall be obliged to effect a flight only accident insurance covering an amount guaranteed per air passenger of EUR 39,970.00 in case of death or permanent disability.
13.2. In the event that damages are paid to the aggrieved party under the accident insurance, the aggrieved party’s claim for damages against the air carrier shall expire to the amount paid by the insurance of the aggrieved party. In any case compensation payments for accidents are set off against liability claims.
14. LIABILITY
14.1. Air carrier’s liability
The air carrier shall be liable only pursuant to the provisions specified under this Section 14.
14.1.1. The air carrier shall be liable only for damage occurring during air carriage. The air carrier’s liability shall in no case exceed the amount of the substantiated damage.
14.1.2. The air carrier’s liability shall be excluded, in particular:
a) for damage caused by any third person.
b) for damage and/or non-performance caused by force majeure or bad weather conditions rendering the performance of a charter flight impossible for reasons of safety, or attributed directly or indirectly to compliance with statutory or official directives, provisions or regulations, or caused by circumstances for which the air carrier is not answerable.
c) for damage caused by the delayed conveyance of passengers, luggage or freight, or the approach of alternative airports, unless this damage has been caused by the air carrier by gross negligence or intent.
d) for damage, cost and/or expense of any kind incurred by the charterer, his employees, representatives or other contractual partners of the charterer from the performance or non-performance of the charter party on the part of the air carrier, unless such damage and/or expense has been caused by the air carrier by gross negligence or intent.
e) for indirect and consequential damage, for which reason whatsoever, especially because of delays for technical reasons, as well as damages of penalty nature.
14.1.3. The air carrier shall be liable only for such damage, the occurrence, cause and amount of which can be substantiated.
14.1.4. The air carrier will not assume any liability, if he can prove that he has taken all measures required to avoid the damage, or that he was unable to take such measures.
14.1.5. The exclusion and limitation of air carrier’s liabilities shall apply analogously in favour of his agents, employees or representatives. The total amount that may be payable for compensation by the air carrier and the persons mentioned above shall not exceed the maximum liability of the air carrier.
14.2. Charterer’s liability
14.2.1. The charterer shall be liable for the performance of the charter party though acting as an agent.
14.2.2. The charterer shall be obliged to inform the air carrier immediately, but not later than immediately after the end of the flight, about any injury of conveyed persons or damage to the luggage occurring during the stay and caused by the air carrier and known to the charterer, as well as about any freight damage immediately after delivery of the freight. The air carrier will not assume any liability for damage that is not notified in due time.
14.3. Liability for personal injury
In the event that an air passenger is killed, bodily injured or otherwise affected in health on board of or during entering or exiting an aircraft of the air carrier, the latter shall be liable to pay damages to the air passenger, provided that the air carrier is to blame for the cause of the damage.
14.4. Liability for damage to luggage
14.4.1. The air carrier’s liability for delay, damage, destruction or loss of luggage shall be limited as follows only for conveyance inside of Austria:
a) for a conveyed object up to an amount of EUR 34.88 per kilogramme and
b) for all objects that the air passenger wears or carries along or has registered as luggage up to a total amount of EUR 1,816.82.
For international conveyance the air carrier’s liability is regulated by the Warsaw Convention including all additional protocols and additional conventions.
14.4.2. The air carrier shall not be liable for loss of or damage to fragile or perishable goods (computers or other electronic devices), jewellery, precious metal, money, securities, stocks and bonds or other valuables, business papers, medicaments, keys, passports, identity cards or other documents, as well as samples or similar objects contained in the air passenger’s registered luggage, whether with or without the knowledge of the air carrier, unless such damage has been caused by gross negligence or intent.
14.4.3. The air carrier shall not be liable for damage caused by objects contained in the air passenger’s luggage, unless such damage has been caused by gross negligence or intent. If such objects cause damage to the luggage of another air passenger or the property of the air carrier, the air passenger shall be liable to compensate the air carrier for any damage and expense incurred by the air carrier in this respect.
14.5. Liability for freight damage
14.5.1. The air carrier shall not be liable against the consignor or any third party for freight damage caused by or in connection with the carriage of the goods or any related services rendered by the air carrier, unless it can be substantiated that the damage has been caused by gross negligence or intent of the air carrier; moreover, he shall not be liable in the event of contributory negligence of the consignor, the addressee or any other person entitled to damages.
14.5.2. Since freights are based on the value declared by the consignor, the air carrier shall not be liable in any case for a higher conveyance value than declared by the consignor in the airbill: in the absence of any such declaration of the consignor, the air carrier shall be liable only for destroyed, lost, damaged or delayed goods as provided for in the applicable statutory provisions; any claims for damages shall be subject to proof of value.
14.5.3. In the event that the addressee (or any other person entitled to acceptance) receives only part of instead of the whole consignment, or if only part of the consignment is damaged, then the air carrier’s liability shall be reduced proportionately to the part not delivered or damaged on the basis of weight, regardless of the value of the part consignment or its content.
14.5.4. The air carrier shall not be liable for damage to or destruction of a consignment caused by the objects contained therein. The consignor, owner and addressee, whose objects have caused damage to or destruction of other consignments or the property of the air carrier, shall be liable to compensate the air carrier for all losses and costs incurred by him in this respect. Goods that might expose the aircraft, persons or property to danger may be removed or destroyed by the air carrier without announcement and without any liability arising for the air carrier from such removal or destruction.
14.5.5. Consignments susceptible to deterioration or spoilage because of the change of climate, change of temperature, change of height or other ordinary circumstances or as a consequence of the duration of the conveyance, will be accepted by the air carrier excluding any liability for loss or damage as a consequence of deterioration or spoilage.
14.5.6. As to the conveyance of freight, the air carrier shall be obliged to notify the addressee only if so agreed in the charter party.
15. DELAY OF PERFORMANCE, IMPOSSIBILITY OF PERFORMANCE
15.1 In the event that, for reasons within his scope of responsibility, the air carrier is not able to perform or complete an agreed flight or to fulfil his obligations under the charter party, then the air carrier shall be entitled, at his option or at his expense, to provide alternative means of transport, either for the whole flight or for the non-completed part of the flight.
15.2 In the event that, for reasons beyond the control of both the air carrier and the charterer, a flight cannot be performed or can be performed only in part or is more than 48 hours behind schedule, then the air carrier shall be obliged, excluding further claims, to reimburse to the charterer the prorated amount calculated on the basis of the distance of the agreed charter flight that could not be completed.
16. TERMINATION, CANCELLATION AND CANCELLATION FEE
16.1. Termination on the part of the air carrier
The air carrier may withdraw from the charter party 14 days before the scheduled charter flight without giving any reason. Without prejudice to this termination clause there is the possibility of termination without notice, if, in particular,
a) the charterer fails to fulfil his obligations under the charter party and the GTCAA.
b) a petition for bankruptcy or composition proceedings has been filed, if bankruptcy or composition proceedings have been instituted or if the charterer has been otherwise divested of his right of disposal of his property, however, as soon as the charterer gets into pecuniary difficulties or suspends payment and is not ready to guarantee the charter price.
c) the performance of a flight is actually prevented by force majeure.
Subparagraphs a) and b) are to be put on a level with cancellation, which means that the cancellation fee as provided for under paragraph 16.3 becomes payable, subject to a different provision in the charter party.
16.2. Termination on the part of the charterer
16.2.1. The charterer shall be entitled to withdraw from the charter party before the beginning of the conveyance, if the performance of the journey or conveyance is prevented by force majeure.
16.2.2. In the event that the charterer withdraws from the charter party for other reasons, the cancellation fee as provided for under paragraph 16.3 becomes payable immediately. The charterer must notify the air carrier of his withdrawal from the contract immediately and in writing, and must obtain a written confirmation of the air carrier.
16.2.3. If a flight or part capacities of a flight are cancelled, while the charterer enters into or has entered into a charter party for comparable conveyance with another air carrier enterprise, either in his own name or under a different name, then the air carrier shall be entitled to compensation of the full charter price, unless there is an agreement to the contrary in the individual case.
16.3. Cancellation fee
16.3.1. For cancellation of individual charter parties within 48 hours before departure a cancellation fee of 50% of the contractually agreed charter price, but at least the airfare for 60 flight minutes will be charged.
16.3.2. Cancellation of a charter flight being part of an allocation will be effected at the same conditions as the cancellation of an individual charter. However, for the first three cancellations of an allocation no cancellation fees will be charged.
17. JURISDICTION AGREEMENT
For disputes arising out of or in connection with the charter party, any modifications or supplemental agreements thereof, the competence of the court having jurisdiction as regards the subject matter in 4020 Linz shall be agreed. However, Alpha Airways GmbH shall be entitled to sue the charterer also at his place of general jurisdiction.
18. MISCELLANEOUS
18.1. All flights of the air carrier are non-smoker flights.
18.2. The air carrier shall be entitled to store the charterer’s data internally and to use them for internal purposes.
18.3. If a provision of these GTCAA shall be or become invalid, the validity of the other provisions shall remain unaffected; invalid provisions shall be replaced by valid provisions reflecting the intended purpose as closely as possible.
18.4. Definition of terms:
18.4.1. „Annex“ shall mean the supplemental agreements to the charter party containing the detailed information on flights and flight schedules.
18.4.2. „Registered luggage“ shall mean the luggage that the air passenger has entrusted to the care of the air carrier.
18.4..3. „Charterer“ shall mean someone chartering seating capacities or one or several aircraft(s) from the air carrier, and who is party to the respective charter party.
18.4.4. „Charter price“ shall mean the total price being at the basis of the charter party and specified therein, containing the airfare and the costs, fees and duties payable by the charterer plus a percentage markup (handling fee).
18.4.5. „Charter party“ shall mean the contract forming the legal basis for a charter flight between the air carrier and the charterer.
18.4.6. „Airfare”: The contractually agreed airfare is based on the calculated time in minutes between releasing the brake at the airport of departure and applying the brake at the airport of arrival.
18.4.7. „Force majeure“ shall mean any extraordinary events inflicted from outside that are beyond the air carrier’s control and that are neither foreseeable nor avertable within the scope of his operating conditions by taking appropriate measures. Force majeure includes warlike operations, civil riots, natural disasters or phenomena, strikes in foreign or own business operations and similar, making the performance of a charter flight actually impossible in whole or in part.
18.4.8. „Air carriage“ shall cover the time period during which an air passenger, cargo or luggage are entrusted to the air carrier’s care; it is usually the time period between entering and leaving the safety zones.
18.4.9 „Air carrier“ shall mean either Alpha Airways GmbH or any of its partner companies.
18.4.10. „Unregistered luggage“ shall mean any luggage that the air passenger either carries along or wears.
18.4.11. The „written form“ shall be deemed to be fulfilled, if communication is effected by way of telefax or other electronic media (e-mail) to the contact data communicated or published by the parties to the contract.
