PLEASE NOTE:
The terms and conditions below are generic, in summary form and are provided for information purposes only. The specific terms and conditions that will apply to the charter flight will be based on the below terms and conditions, as amended to incorporate the specific commercial terms agreed between the parties, relevant operational or regulatory matters and other general terms and conditions.
1. THE CHARTER
a) Nauru Airlines will provide the Aircraft, and suitably qualified and licensed flight crew, cabin crew and any engineering personnel required in order to operate the Charter Flight in accordance with this Agreement and the flight schedule agreed between the parties in writing.
b) The Aircraft will be operated in accordance with the Nauru Airlines AOC, its operating manuals and procedures, insurance policies, applicable CASA and aviation authority requirements, the terms of this Agreement and all Applicable Laws.
c) The Captain will be in command of the Aircraft and will have complete discretion as to all matters relating to its operation. Charterer accepts all such decisions of the Captain taken for reasons of safety as final and binding and Nauru Airlines will not be liable to the Charterer for any loss, Claim, Cost or expense as a result of any such decision made by the Captain.
d) The Charterer must observe and comply, and must ensure that all persons nominated by the Charterer to occupy seats on the Aircraft observe and comply with Nauru Airlines’ Conditions of Carriage which are incorporated herein by reference, and all reasonable flight rules notified by Nauru Airlines from time to time.
e) The Charterer must provide Nauru Airlines with a passenger manifest and confirmation of the weight and nature of the Charterer’s freight at least one hour before the scheduled departure time of the Charter Flight, provided that the Charterer may make minor revisions to any notification up to the thirty minutes before scheduled departure time.
f) The Charterer is responsible to ensure that the passengers and/or cargo carried in any of the Aircraft have the necessary clearance requirements and comply with all Governmental Authorities and Applicable Laws.
g) Unless otherwise approved in advance in writing by Nauru Airlines, no dangerous goods (including but not limited to substances that are potentially hazardous to people or property, including goods which are corrosive, flammable, explosive, spontaneously combustible, toxic, oxidizing, radioactive, biological, water reactive or gases under pressure or liquefied) are to be carried on any Aircraft.
2. PRICE AND PAYMENT
a) The Charter Fee is inclusive of the provision of the aircraft, crew (flight crew, cabin crew and any required engineering support), maintenance (including maintenance control and spare parts) and insurance (on the terms specified below) necessary to perform the Charter Flight. The Charter Fee is not refundable in the event any Charter Flight (or any sector) is cancelled due to COVID-19 or any associated government requirements, orders or guidelines.
b) Charges for the following are excluded from the Charter Fee and are payable by the Charter as an additional charge: catering, ground transfer costs, all passenger related taxes and charges, customs, immigration and quarantine charges, costs, charges or expenses levied or incurred in connection with government requirements, directions or guidelines regarding COVID-19, accommodation, travel, sustenance and living allowances for passengers, crew and engineers in AOG and flight delay, disruption and cancellation circumstances, accommodation and positioning flights for crew as required, substitute transport for passengers and crew, costs of any compensation payable to passengers in connection with a delay, disruption or cancellation of a flight, freight spoilage charges, freight on services in AOG circumstances, check-in including DCS, ramp load and off-load, CTO charges for any freight carried, fuel and any others agreed between the parties in writing.
c) Charterer must pay to Nauru Airlines the Charter Fee and Charter Fee Exclusions estimated at the time of booking. Until such time as payment in full is received the booking will not be confirmed and Nauru Airlines will be entitled to decline to conduct the Charter. Save as provided herein, the estimated Charter Fee is non-refundable.
d) Where Nauru Airlines provides, pays for or incurs any cost in relation to any Charter Fee Exclusions, Charterer must pay to Nauru Airlines its Costs for procuring the relevant item plus a handling/administration fee of 8% in advance of the Charter Flight or if invoiced after the Charter Date, within 7 days of presentation of an invoice to Charterer.
e) At the end of each Charter Flight, Nauru Airlines will conduct a reconciliation of the actual Charter Fee and Charter Fee Exclusions payable by Charterer against those estimated at the time of booking. The relevant under or over-payment must be paid by the relevant party within 7 days of presentation of an invoice by the other party.
f) All payments by Charterer must be paid in immediately available funds on the due date without withholding or deduction of any kind, including for taxes, duties, bank fees or currency costs.
g) Time is of the essence with respect to Charterer’s payment and other obligations under this Agreement. In addition to any other right of Nauru Airlines, if Charterer fails to pay any amount due under this Agreement or any Other Nauru Aircraft Agreement, Nauru Airlines may suspend the provision of all Services without notice until Charterer pays the amount owing in full, including any interest payable.
h) The amount payable for the supply of goods or services under this Agreement is exclusive of GST. If GST is imposed on any supply, the recipient must pay, in addition, an amount calculated by multiplying the prevailing GST rate by that amount. GST payable under this clause is payable on the same day that the payment to which the GST relates is payable, provided that the supplier must first provide a tax invoice.
i) If any party fails to pay an amount owing and payable under this Agreement, interest shall accrue daily upon such outstanding amount at the Interest Rate. The interest will accrue from the date that payment was due until payment is made and must be paid by the party in default to the other party on demand (or failing demand at monthly intervals).
3. FORCE MAJEURE AND JUSTIFIABLE DELAY
a) Notwithstanding any other provision of this Agreement, Nauru Airlines will not be liable to Charterer or be in default for failure to observe or perform any provision of this Agreement or the Services where such failure is due to an event of Justifiable Delay or Force Majeure. If Nauru Airlines is unable to perform, perform on time or complete any flight or Service because of a Justifiable Delay or Force Majeure, Nauru Airlines must promptly notify Charterer by telephone, with a confirmation in writing to follow promptly. The notice should stipulate the affected flight, a description of the Justifiable Delay and its expected effect.
b) Force Majeure events include: a) any material change In law; b) war, whether declared or not, terrorism or public enemies, riot or civil commotion; c) any national or state-wide strike, lockout or stoppage, work ban, restraint of labour, go-slow or other national or state-wide industrial dispute; d) act of God, fire, flood, storm, tempest, earthquake, volcanic eruptions and washaway; e) power failures or shortages; f) any other unforeseen cause or event provided that it is not reasonably within the control of Operator; or g) a Casualty, provided that it is not reasonably within the control of the affected party and provided further that insufficiency or inability to obtain funds or make a payment required under this Agreement for any reason cannot constitute a Force Majeure Event.
c) Justifiable Delay events include: a) the effects of weather (including storms, rain, hail, fog, dust storms, severe wind, frost or ice); b) additional or unusual security requirements; c) restrictions imposed by air traffic controllers or any Governmental Authority; d) directions, orders, guidelines or restrictions imposed by any Governmental Authority in relation to pandemics, infectious disease plagues, curfew or quarantines due to widespread health or disease conditions, including COVID-19; e) complying with any direction or request of Charterer, or any failure by Charterer to comply with this Agreement; f) fuel contamination or the failure of fuel or refuelling equipment to meet the Aircraft manufacturer’s or CASA standards; g) any delay resulting from a variation to the route to be flown; h) any delay or cancellation as a consequence of a decision by Operator (acting reasonably) that to perform the Services would pose a risk to the safety and preservation of persons engaged in or utilising the Services including any decision to undertake scheduled and unscheduled maintenance required on the Aircraft.
4. LIABILITY
a) Save as expressly set out in this Agreement, liability of Nauru Airlines shall be as set out in the Nauru Airlines’ Conditions of Carriage. Those Conditions of Carriage limit the liability of Nauru Airlines to passengers and in respect of baggage and cargo and the Charterer should read them carefully.
b) Neither party will be liable to the other for any consequential, indirect or special damages or any loss of profit, bargain, use, reputation, benefit or opportunity resulting from any breach or performance by it of its obligations under this Agreement.
5. INSURANCE
a) Nauru Airlines will effect and maintain the following insurances: "All Risk" hull insurance and hull war and allied perils insurance for the Aircraft at all times whilst in flight, taxiing or on the ground on an agreed value basis for an amount not less than the market value of the Aircraft; and comprehensive aviation legal liability insurance (including war and allied perils liability insurance) in respect of death, bodily injury and property damage, passenger, baggage, cargo and mail liability and liability under this Agreement.
b) Charterer may at its cost require Nauru Airlines to carry additional insurance. Such additional insurance must be consistent with Nauru Airlines’ existing policies or as otherwise agreed by Nauru Airlines. Upon request, Nauru Airlines will provide a certificate of currency for the insurances.
6. CASUALTY AND DAMAGE
Nauru Airlines must give Charterer written notice of any Aircraft Accidents or Casualty with respect to the Aircraft. If such an event occurs during the Term, Nauru Airlines may elect, in its discretion to substitute another aircraft with specifications similar to the Aircraft; or terminate this Agreement by written notice to Charterer. In the event Nauru Airlines issues such notice, Charterer must pay any amounts outstanding and Nauru Airlines must refund any amounts paid in advance by Charterer for services which were not performed (provided that any amounts payable to third parties (including taxes, airport charges or third party services) which have already been paid by Nauru Airlines will not be refunded. Nauru Airlines may set off any amount owing by Nauru Airlines to Charterer under this Agreement against any amount owing by Charterer under this Agreement or any Other Nauru Aircraft Agreement. Upon payment of all amounts owing, if any, this Agreement will terminate.
7. DEFAULT AND TERMINATION
a) A Charterer Default occurs if:
(i) Charterer fails to pay amounts due by it under this Agreement and such sum is not paid within 3 Business Days;
(ii) Charterer fails to comply with any obligation under this Agreement and does not remedy the non?compliance within 10 Business Days after receipt of written notice to that effect from Nauru Airlines; or
(iii) an Insolvency Event occurs in relation to Charterer.
b) In addition to any other right or remedy of Nauru Airlines, upon the occurrence of a Charterer Default, Nauru Airlines may:
(i) immediately without notice to Charterer cease operation of the Charter Flight and the provision of any other services or deliverables under this Agreement until the Charterer Default is remedied in full;
(ii) demand the total of all moneys then accrued, due and payable and the Charterer must immediately pay such amounts; and/or
(iii) immediately terminate this Agreement by notice in writing to Charterer.
c) A Nauru Airlines Default occurs if:
(i) Nauru Airlines fails to comply with any obligation under this Agreement (for reasons other than a Justifiable Delay or Force Majeure) and does not remedy the non-compliance within 10 Business Days of being given notice to that effect from Charterer;
(ii) an Insolvency Event occurs in relation to Nauru Airlines; or
(iii) Nauru Airlines fails at any time to maintain the Insurance required under clause 7.1 and does not remedy such failure within 5 Business Days of being given notice to that effect from Charterer.
d) In addition to any other right or remedy of Charterer, upon the occurrence of an Nauru Airlines Default, Charterer at its option may terminate this Agreement immediately by written notice to Nauru Airlines.
8. CONFIDENTIALITY
Each party must at all times keep this Agreement, the terms of the Charter, Charter Fee and information relating to the other party’s business (Confidential Information) strictly confidential and not use it other than as required in order to perform its obligations under this Agreement, except as required by law or to its officers, employees, advisers as have a need to know provided they have been made aware of the confidential nature of the information.
9. GENERAL
a) A provision of or a right under this Agreement may not be waived or varied except in writing signed by the relevant party.
b) Any present or future legislation which operates to vary an obligation, right or remedy of a person in connection with this Agreement is excluded except to the extent that its exclusion is prohibited or rendered ineffective by Applicable Law.
c) The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
d) This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, understandings and agreements.
e) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the
f) This Agreement is governed by and construed in accordance with the laws of Queensland, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Queensland courts for the settlement of any disputes.
g) Neither party may assign its rights and obligations under this Agreement to any person without the prior consent of the other party, which must not be unreasonably withheld. A party may withhold consent where the transferee does not agree to assume all of the other party’s obligations under this Agreement arising after the time of such transfer, does not have appropriate creditworthiness, or is a competitor.
h) Each party must do all things and execute all further documents necessary to give full effect to this Agreement, including promptly providing any information reasonably required by the other party to satisfy any requirement of CASA or other Governmental Authority.