PASSENGER AIRCRAFT CHARTER AGREEMENT
This Passenger Aircraft Charter Agreement (the "Agreement") is made and
entered into this 9th day of November, 1997 and effective the 1st day of
February, 1998 (the "Effective Date"), by and between Hawaiian, Inc., a Hawaii
corporation, whose principal place of business and mailing address is X.X. Xxx
00000, Xxxxxxxx, Xxxxxx, 00000 ("Hawaiian") and HAWAIIAN VACATIONS, INC., an
Alaska corporation, whose principal place of business and post office address is
0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxx, 00000 ("Charterer").
Charterer and Hawaiian are sometimes referred to in this Agreement as the
"Party" or collectively as the "Parties."
W I T N E S S E T H :
WHEREAS, Hawaiian is engaged in the business of providing charter air
transportation, and Charterer is in the business of organizing and extensively
marketing and promoting travel arrangements for sale to the public;
WHEREAS, Hawaiian and Charterer desire to set forth the charter fare
levels, flight schedules and other procedures to be followed, whereby Charterer
may purchase charter air transportation on Hawaiian,
NOW, THEREFORE, in consideration of the premises and the mutual
obligations hereinafter set forth, Hawaiian and Charterer agree as follows:
ARTICLE 1. GENERAL
1.1 The Agreement constitutes the entire agreement and understanding of the
Parties regarding the subject matter hereof, and, as of the commencement
date, supersedes all prior agreements, whether written or oral, between
the Parties concerning the subject matter hereof.
1.2 Subject to Hawaiian and Charterer receiving the necessary regulatory
approvals, this Agreement shall be effective on the Effective Date and
shall continue through April 30, 1999.
1.3. During the term of this Agreement, Hawaiian shall not enter into the
Anchorage/Hawaii market on a scheduled basis other than flights
scheduled for this Agreement, or extend charter services to any other
operator other than Charterer. During the term of this Agreement,
Charterer shall not operate any scheduled service or charter service in
the Anchorage/Hawaii market other than with Hawaiian.
ARTICLE 2. CHARTER AIR TRANSPORTATION, FLIGHT SCHEDULES AND FARE LEVELS
2.1 CHARTER FLIGHT(S). Subject to the terms and conditions of this
Agreement, Hawaiian agrees to make available to Charterer, and Charterer
agrees to charter from Hawaiian, aircraft of the type and configuration
as set forth in Attachment(s) A, attached hereto, for the performance of
the charter flight(s) described in Attachment A ("Charter Flights").
2.2 REGULATORY APPROVALS. It is agreed that both Parties' performance under
this Agreement is subject to Hawaiian receiving from Charterer evidence
satisfactory to Hawaiian that Charterer has complied with and obtained
governmental regulatory approval necessary to conduct Charter Flights,
including but not limited to Department of Transportation ("DOT") Forms
4533 "Statement of Charter Operator or Direct Air Carrier and Securer,"
4532 "Statement of Charter Operator and Direct Air Carrier Flight
Schedule" and 4534 "Statement of Charter Operator, Direct Air Carrier
and Depository Bank," and has complied with Part 380 of the DOT.
2.3 During the course of the Agreement should another scheduled air carrier
or charter operator approved by the DOT enter the Hawaii market on a
nonstop basis from Alaska the
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
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Parties will jointly review the viability of a continuation of the
contract. If it is agreed to continue, the contract price will be
revised to represent ____ of the lowest "published" retail price point
offered by the other air carrier. "Published" shall mean the
appearance of the fare in at least two (2) CRS systems, or in
advertising in the local media or in written communication to retail
travel agents in the Hawaii/Alaska market. "Published" shall not
constitute an announcement of intention to operate but must be proven
to be available for purchase. If Hawaiian reduces the cost per seat
the accompanying rules of the published fare shall apply to the
reduced Charterer fare. If Hawaiian decides that continuation of the
Agreement is not viable, the Agreement may be canceled with ninety
(90) days written notice by Charterer to Hawaiian. In that case,
Hawaiian will agree to amend the Agreement to match ____ of the
competitive published rate forty-five (45) days prior to the
commencement of operations by the other air carrier and for the
balance of the ninety (90) days remaining from receipt of the written
cancellation notice.
ARTICLE 3. FINANCIAL ARRANGEMENTS
3.1 SECURITY DEPOSIT. Simultaneously with the execution of this Agreement,
as security for the payment of any and all amounts due Hawaiian pursuant
to this Agreement and not paid by Charterer within the periods
specified, Charterer or its designee shall deliver to Hawaiian an
appropriate instrument, as specified in Attachment A and in a form
reasonably acceptable to Hawaiian, which shall remain valid until
forty-five (45) days after the termination of this Agreement. Hawaiian
shall promptly report to Charterer any draw made against such security.
Charterer shall immediately amend such security to provide for
additional security in the amount so reported to have been drawn or
cause to be issued a new security in the amount so reported to have been
drawn.
3.2 PAYMENTS. This Agreement is for a public charter under Part 380 of the
Regulations of the DOT. Charterer, Hawaiian and Charterer's bank (the
"Depository Bank") shall execute a depository agreement in form and
substance satisfying the requirements of Part 380. Upon execution of
the bank depository agreement by the Parties hereto, said agreement
automatically becomes a part of this Agreement. Hawaiian shall be paid
in accordance with the depository agreement. Such payments, made in
accordance with Part 380, due to Hawaiian hereunder, will be made by
Depository Bank on or before the due date in immediately available funds
by electronic funds transferred to the Escrow Account as follows:
Bank of Hawaii
Main Branch
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Escrow Department
Federal Wire Routing No. ____________
___________________
___________________
Attention: Escrow Department
and credited to the escrow account of Hawaiian at Bank of Hawaii. Each
deposit to the Escrow Account shall be accompanied by sufficient
information to properly identify the payment in accordance with the
requirements of Part 380 and Part 207. All monies shall remain in the
escrow account until the rotation for which payment is made has been
completed.
3.3 MANIFEST LIST. At least two (2) days prior to the departure of each
flight, Charterer will fax to Hawaiian a manifest list of all passengers
of the flight and their return flight. This manifest list will be
provided to Hawaiian, Schedule Planning, through the use of the
SABRE-Registered Trademark- system with airline capabilities provided by
Hawaiian to Charterer or by any other means that is mutually agreed to
by both Parties. No later than 7 p.m. (HST) on the day of departure of
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
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each flight, Charterer will use its best efforts to provide a revised
manifest list of all passengers of the flight and their return flight to
Hawaiian, Schedule Planning and Customer Services, by any means mutually
agreed to by both Parties.
3.5 NON-PAYMENT. Hawaiian has no obligation to perform any Charter Flight
unless the full payment amounts set forth in Attachment A and any other
payment due in advance hereunder have been properly remitted to Hawaiian
in full at least fifteen (15) days before departure. Such payments
shall be paid on or before the due date(s) set forth herein, without
notice, demand, counterclaim, set off or deduction whatsoever.
3.6 TRANSPORTATION TAXES. The charter price as set forth in Attachment A is
exclusive of transportation tax, passenger facility charges (PFCs) and
charter international terminal fees (CITs). Charterer is responsible
for these taxes/fees and any additional airport assessments or passenger
charges. To the extent that Hawaiian is required to remit any such
payments directly, Charterer will pay such amounts directly to Hawaiian
as set forth in Attachment A. Hawaiian also reserves the right to amend
payment of transportation fees within the effective period of this
contract.
3.7 LATE CHARGES ON PAST-DUE PAYMENTS. In the event Charterer or Hawaiian
fails to make payment to the other Party when it becomes due pursuant to
this Agreement, the defaulting Party shall pay the non-defaulting Party
interest on the amount in default from its due date to the date of
payment at the then current prime rate of interest plus
___________________ per annum announced in the Wall Street Journal, or
at the highest rate applicable by law, whichever is less.
ARTICLE 4. PERFORMANCE OF CHARTER FLIGHTS
4.1 AIRCRAFT AND REGULATIONS. Hawaiian shall provide the aircraft properly
crewed, maintained and fueled as set forth in Attachment A. Charterer
shall observe all operating rules and regulations of Hawaiian and shall
comply with all reasonable instructions of Hawaiian employees and
agents. It is understood that the aircraft and its crew will at all
times during the course of the Charter Flight be under the exclusive
command and control of Hawaiian and Hawaiian's Pilot-in-Command, whose
orders will be strictly complied with by the Charterer and all
passengers.
4.2 FLIGHT SCHEDULE. Hawaiian shall use its best efforts to carry the
charter passengers and their baggage with reasonable dispatch.
Departure times are subject to and may be altered by aircraft
availability and routing, the availability of airport gate spaces,
weather conditions and other operational factors.
Each Party hereto agrees to use its best efforts in causing on-time
departure of all Charter Flights in accordance with the schedules, which
are set forth in the Attachment(s). In no event shall Hawaiian be
liable to the Charterer or any other individual for the transportation
of any passenger who is not at the specified check-in point at least
one-half (1/2) hour prior to the scheduled departure, and such flight
may depart as scheduled without such passenger(s), except that
Charterer's airport agent at departure can request a delay to Hawaiian's
airport agent in order to accommodate passengers who are not at check-in
or on board at the specified time. It is further agreed that Hawaiian
will check with Charterer's airport agent prior to committing the
aircraft for departure to determine if Charterer chooses to exercise
such option. Payment, if any, for such a requested delay shall be
billed at the rate outline in section 4.12 of this Agreement.
4.3 SUBSTITUTE AIRCRAFT. Hawaiian may, at its option, substitute comparable
aircraft (i.e. aircraft with at least 300 passengers seats and the
capability to fly non-stop between Honolulu and Anchorage) of a type
different from that specified in Attachment A without penalty to
Hawaiian, provided that any such substitution shall not result in an
increase in the charter
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
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price payable by the Charterer. Hawaiian may, to the extent permitted
by applicable government regulations, subcontract the performance of
any of its obligations under this Agreement, provided that it shall
not thereby be relieved of its obligations to the Charterer, and
provided that all passengers covered by the original contract with the
Charterer will be protected by such substitution.
4.4 ALTERNATE ROUTING. If, for any reason, Hawaiian determines, in the
exercise of its reasonable discretion, at any time, that the landing
facilities at any point(s) on the itinerary of the charter are
inadequate for safe operation or if landing is prohibited or restricted
by law, Hawaiian may substitute in place thereof the nearest point at
which, in Hawaiian's sole judgment, suitable landing facilities are
available and landing can be made. In this event, the Parties shall
share equally in the costs for the transportation and all additional
costs of whatever nature, of the passengers to the original destination.
4.5 ALTERNATE LANDING. Hawaiian shall not be liable for loss, injury,
damage or delay to or suffered by the Charterer or any passengers due to
landing at an airport or at a destination other than as contracted, or
due to a failure to stop at any contracted intermediate airport, or due
to any flight interruption, delay or cancellation caused by riots, wars,
civil commotions, strikes, labor disputes, weather conditions, acts of
God, public enemies, quarantine, or due to the absence of any necessary
government approvals, or due to any other cause (whether of the same or
different nature) beyond Hawaiian's control. In the event any of the
foregoing shall occur, Hawaiian shall have the right, without any
liability, to cancel any portion of the charter contract affected by the
above.
4.6 INFLIGHT SERVICE. Hawaiian has the right to sell liquor and headsets on
all passenger Charter Flights. Hawaiian may charge the individual
passenger for inflight entertainment, if such entertainment is available
and if Attachment A hereof does not contain provisions to the contrary.
Hawaiian shall have the right to offer "Duty Free" items for sale in
flight. Nothing contained herein shall require Hawaiian to pay
Charterer any of the proceeds derived from the inflight services set
forth in this paragraph. Notwithstanding the above, Hawaiian shall
provide complimentary headsets and up to two (2) complimentary alcoholic
beverages to each of the 30 Charterer passengers in the first class
section of the aircraft.
4.7 PASSENGERS' TRAVEL DOCUMENTS. Charterer and all passengers and all
cargo consignors shall comply with all laws, regulations, orders,
demands and travel requirements of all states and countries to be flown
from, to or over and shall comply with all of Hawaiian's associated
rules and instructions. Hawaiian shall not be liable for any aid or
information given by any agent or employee of Hawaiian to any passenger
or to Charterer in connection with obtaining necessary documents or
complying with such laws, etc., whether given in writing or otherwise,
or for the consequences to Charterer or any passengers resulting from
failure to obtain such documents or to comply with such laws, etc.
Charterer and all passengers shall present all exit, entry, health and
other documents required by the laws, rules or regulations, of the
states or countries concerned. Hawaiian reserves the right to refuse
carriage to any passenger or to carry any cargo of Charterer on Charter
Flights if, in Hawaiian's sole judgment, the required documents are not
completed or there has not been compliance with applicable laws,
regulations, orders, demands or travel requirements, then Hawaiian shall
not be liable for loss or expense due to failure to comply with the
requirements listed in this paragraph.
Charterer agrees to pay for the transportation of all persons or baggage
that, on government regulation or order, is required to be returned to
the point of origin or elsewhere owing to inadmissibility into a state
or country, whether of transit or destination. If Hawaiian is required
to pay or deposit any fine or penalty or make any expenditure by reason
of a failure to comply with the laws, rules or regulations of the states
or countries concerned, Charterer shall reimburse Hawaiian for all
amounts so paid or deposited and any expenditures so incurred.
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
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4.8 INSPECTION. Passengers will be required to comply with the requirements
of Customs, United States Department of Agriculture, Airport Security
Personnel and any other governmental officials regarding the inspection
of passenger baggage. Neither Hawaiian nor Charterer shall be liable to
passengers for any loss or damage due to the passengers failure to
comply with such requirements. Hawaiian shall not require Charterer to
assist with Security Directive SD-96-05B relating to profile screening.
4.9 PASSENGER TICKETING. Charterer agrees that every passenger ticket and
ticket envelope is issued pursuant and subject to this Agreement, and
the provisions thereof are incorporated herein by reference. If
Charterer issues a ticket in connection with a Charter Flight conducted
under the terms of this Agreement, said ticket shall include the terms
of this Agreement insofar as they are applicable. In the event of any
inconsistency, the terms of this Agreement shall prevail.
4.10 UNUSED CAPACITY. If the Charterer does not use all of the chartered
space, Hawaiian reserves the right to utilize the space with written
consent from the Charterer. Charterer and Hawaiian shall make every
effort to communicate with each other in a timely fashion regarding
existence and utilization of unused space.
4.11 NO SHOW PASSENGERS. Hawaiian shall not be responsible or liable for the
transportation of passengers who fail to report at the specified
Hawaiian check-in point at the airport one half (1/2) hour prior to the
scheduled departure time of the flight in the cases of domestic flights,
or who are, through no fault of Hawaiian's, not aboard at time of
departure. If one or more members of one group fails to so report or
board, Hawaiian may depart as scheduled and shall in no way be
responsible for or to such individual but shall be deemed to have
completed its contractual obligation to Charterer. At each check-in
point Charterer will provide an agent who has the authority to request a
delay in order to accommodate any passengers. It is further agreed that
Hawaiian will check with Charterer's airport agent prior to committing
the aircraft for departure to determine if Charterer chooses to exercise
such option. Hawaiian shall instruct its airport agents to refer
passenger questions to Charterer's airport agent or for the
arrival/departure in Honolulu Charterer's toll free number
(800-770-2700). Honolulu is the only arrival/departure airport which
Charterer's airport agents will not be available.
4.12 DEVIATIONS FROM SCHEDULE. Any deviations from the terms and conditions
set out in this Agreement subsequently made at the request of the
Charterer, or caused by actions of the Charterer, may involve an
increase in the Charter Flight price. Charterer requested delays shall
be billed at a rate determined by Hawaiian based on all costs Hawaiian
incurs as a result of the delay.
4.13 PASSENGER AND BAGGAGE LIMITATIONS. Passengers and baggage will be
carried within the space and weight limitations of the aircraft, said
limitations to be established solely at the discretion of Hawaiian.
Hawaiian will have no responsibility for any baggage, which exceeds the
space and weight limitations of the aircraft, and such baggage will be
at the disposition of, and at the expense of, the Charterer. Baggage
limitations per passenger are: two (2) checked bags having maximum
linear dimensions of 62 inches in total (length + width + height), with
a maximum weight of 70 pounds each, or one (1) oversized bag or box, and
additionally two (2) unchecked bag having maximum linear dimensions of
41 inches in total (length + width + height), which may be carried on
board the aircraft, unless such limitations are reduced by governmental
action, in which event the lower limits shall apply. Hawaiian reserves
the right to charge each passenger for any baggage in excess of the
maximum set forth herein, such excess baggage charges to be remitted to
Charterer.
All excess baggage will be accepted on a space available basis, and
Hawaiian will not accept liability for any expenses, including delivery,
resulting from the delayed delivery of such baggage.
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 6
Hawaiian will provide a container which specifies the maximum size that
a bag may be carried on board the aircraft at each departure point. It
is agreed that all excess baggage will have a higher boarding priority
than any freight sold by Hawaiian.
4.14 CHARTER CANCELLATION (OBLIGATION TO PASSENGERS). If Charterer elects,
consistent with its obligations under Part 380 if the charter is a
public charter operated under those rules, to cancel a Charter Flight,
or group of flights, for whatsoever reason, or defaults on any
provisions of this Agreement, thereby forcing Hawaiian to cancel a
Charter Flight or group of flights, in addition to other provisions in
this Agreement, it will be the Charterer's sole responsibility to
provide return transportation for all passengers previously carried on
Hawaiian, with no additional expense to Hawaiian. However, Hawaiian
will put forth its best effort to help Charterer in these situations.
If Hawaiian is required to return such passengers, Charterer will
reimburse Hawaiian for such expenses, if such expenses have not already
been paid.
4.15 DENIED BOARDING COMPENSATION. Hawaiian shall be primarily liable for
denied boarding compensation based on an overbooking situation.
Charterer shall reimburse Hawaiian its actual out-of-pocket costs of all
such documented denied boarding compensation within ten (10) days of
submission of such invoice.
Hawaiian shall provide Charterer with rates out of its West Coast
gateways for the purpose of accommodation of any denied boarding
situations. Such rates are incorporated into this Agreement as
Attachment B.
4.16 FLIGHT CANCELLATION OR DELAY. Hawaiian shall use its best efforts to
accommodate passengers with flight delays on the Charter Flights as set
forth on Exhibit C attached hereto. If, in Charterer's opinion, Hawaiian
does not or not able to use its best efforts to accommodate passengers
with flight delays on the Charter Flights as set forth on Exhibit C
attached hereto, Charterer has express permission to provide such
accommodation on another carrier or on Hawaiian's scheduled service
flights, and Hawaiian shall reimburse Charterer its actual out-of-pocket
costs of all such documented flight delay accommodations within ten (10)
days of submission of such invoice.
4.17 HAWAIIAN'S EMPLOYEES. Charterer reserves the right to accept or reject
any of Hawaiian's employees providing services under this Agreement for
any regulatory-based reason in Charterer's sole discretion.
ARTICLE 5. FUEL
5.1 FUEL SURCHARGE. Charterer agrees to pay Hawaiian, over and above all
other charges as set forth in this charter contract, a fuel surcharge
in accordance with the provisions set forth below. Hawaiian shall
notify Charterer fifteen (15) days in advance of the departure date
set forth in this contract of the amount of fuel surcharge calculated
by increasing the charter price by _______________ per mile for each
_______________ per gallon increase in the average price of fuel over
the into plane fuel base price, which shall be based on the average
into plane fuel costs per gallon for the period February 1, 1998
through February 28, 1998. Hawaiian shall provide Charterer with
appropriate documentation of the actual into plane fuel costs per
gallon for the period February 1, 1998 through February 28, 1998. If
the cumulative surcharge increases the charter price net of any fuel
discounts as defined herein in excess of _______________ during the
term of this Agreement, Charterer shall have the right, within seven
(7) days after receipt of the notice of fuel surcharge, to cancel
Charter Flights, but only those Charter Flights scheduled to depart
later than fourteen (14) days from Hawaiian's receipt of Charterer's
notice to cancel the Charter Flights. In the event of cancellation by
the Charterer hereunder, all monies paid for flights thereby canceled
shall be promptly refunded by Hawaiian. In the event the
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 7
Charterer does not cancel the Agreement hereunder, the Agreement shall
remain in full force and effect, and the fuel surcharge shall be added
to the contract price and become due and payable on the installment
dates set forth herein. Hawaiian further agrees that it will apply no
additional fuel surcharge after the aforementioned notice prior to the
date of departure.
5.2 FUEL DISCOUNT. For each _______________ per gallon decrease in the
average price of fuel over the fuel base price, Hawaiian shall provide
Charterer with a fuel discount equal to _______________ per mile. Any
fuel discount shall apply to all flights commencing with those flights
departing fifteen (15) days after Hawaiian provides Charterer with a
notice of change in the Fuel Index. Hawaiian shall calculate the Fuel
Index no less than once per month and provide Charterer written notice
of the then current Fuel Index and indicate whether the Fuel Index has
increased, decreased or remained constant since the last notice. Such
fuel credit will be due and payable on the installment dates set forth
herein.
5.3 FUEL AVAILABILITY. Hawaiian may cancel, without liability, any
Charter Flight under contract before the outbound flight is scheduled
to operate if sufficient fuel is not available from its suppliers,
provided that such determination is made by Hawaiian in the exercise
of good faith business judgment. In such case, Hawaiian shall
promptly arrange for a refund to Charterer, or to Charterer's
Depository Bank if a Bank Depository Agreement is in effect, of all
charter payments already made applicable to such canceled flight made
by Charterer or its Depository Bank to Hawaiian but shall not
otherwise be liable to the Charterer or any charter participants for
any damage, loss, cost, or expenses arising out of, or in connection
with such cancellation, and Charterer agrees to indemnify and hold
Hawaiian harmless from any claims, demands or suits brought by any
charter participants, including any legal fees and expenses incurred
in the defense of such claims, demands or suits, arising out of or in
connection with such cancellation. The rights of cancellation
reserved to Hawaiian under this Article 5 shall be in addition to, and
not in place of or in derogation of, any and all other rights which
Hawaiian may otherwise have, at law or equity or under the force
majeure or any other article of this Agreement.
ARTICLE 6. POSITIONING AND DEPOSITIONING (FERRY) CHARGES
Any estimated positioning/depositioning ("ferry") charges shown in Attachment
A have been calculated on the basis of aircraft positioning requirements
related to the departure city of the origin and/or return flight(s), and will
be the stipulated charge for ferry mileage. Refunds will not be paid to the
Charterer for estimated ferry mileage not in fact flown, and the Charterer
will not be charged any additional sums for ferry mileage flown in excess of
the estimate on which the stipulated charge was based, unless such mileage is
flown for the convenience of, at the express direction of, and/or due to
cancellation of a flight(s) by the Charterer.
ARTICLE 7. SPECIAL SERVICES AND CHARGES
In the event Charterer requests, in writing, Hawaiian's assistance in
securing ground transportation for passengers or baggage, hotel reservations
or other services, Hawaiian shall make supplier recommendations and
suggestions but Charterer shall perform its own negotiations and bear the
cost of such services and all risks of injury, damage or loss arising out of
such services.
ARTICLE 8. CHARTER ELIGIBILITY
8.1 CHARTERER'S COMPLIANCE WITH DOT REGULATIONS. Charterer and its
agents, and all passengers shall be deemed to have notice of and shall
comply in all respects with Parts 207 and 208 of the Economic
Regulations or Part 380 of the Special Regulations of the DOT and all
other applicable laws, rules, or regulations (the "Regulations").
Hawaiian shall have the right without penalty, return of deposits, or
payments and damages, to cancel a Charter Flight or refuse to board
any of the passengers should Hawaiian reasonably determine that the
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 8
Charterer, its agents or any passengers have failed to comply with any
of the Regulations. In the case of a pro rata charter under Part
208.200, Charterer hereby acknowledges receipt of a copy of Part 208.
A copy of Part 207 and Part 380 has been provided to Charterer.
8.2 CHARTERER FURNISHED DOCUMENTS. The Charterer and its agents shall
furnish Hawaiian in a timely manner with all documents required by the
Regulations, including, but not limited to, Statements of Supporting
Information, load manifests, passenger lists, certifications and such
other supporting documentation as may be necessary for Hawaiian to
obtain traffic rights for the Charter Flight(s) in any state or
country, provided that Statements of Supporting Information shall be
furnished to Hawaiian prior to the date of the first such Charter
Flight herein. Charterer acknowledges that once approved its
prospectus with the DOT will expire one year from the date of approval
and that it must file a new prospectus with the DOT prior to that
expiration.
8.3 CHARTERER BREACHES OR REGULATIONS. Charterer agrees to give, at its
own expense, such notice to the passengers and/or consignees as
Hawaiian shall request in the event the Charterer or any charter
participant breaches any of the Regulations and thereby causes or
threatens to cause delay or cancellation of a Charter Flight or
cancellation of any of the charter participants thereon. Hawaiian
shall incur no liability of any nature to Charterer, its agents, any
travel company or any charter participants as a result of giving such
notice, or refraining therefrom, whether or not such breach shall, in
fact, cause or result in the delay or cancellation of a Charter
Flight. Charterer agrees to indemnify Hawaiian and hold Hawaiian
harmless from any claims, demands or suits brought by Charterer's
agents, any travel company or any charter participants, defending such
claims, demands or suits, arising out of Charterer's giving the notice
requested by Hawaiian, or refraining therefrom, whether or not such
breach shall, in fact, cause or result in the delay or cancellation of
a Charter Flight.
ARTICLE 9. LIABILITY
9.1 CHARTERER'S RESPONSIBILITY TO ITS PASSENGERS. Charterer acknowledges
that it shall solely be responsible to its passengers for furnishing
all services, not required to be performed by Hawaiian; as set forth
in the Charterer's charter prospectus and solicitation material
distributed in connection with said Charter Flights. Charterer agrees
to hold Hawaiian free and harmless from and to defend Hawaiian and
keep Hawaiian indemnified against any and all claims, actions, or
demands brought or asserted against Hawaiian, including any legal fees
and expenses incurred in the defense of such claims, arising out of
any act or omission of the Charterer, its agents, servants or
employees.
9.2 PASSENGER AND CONSIGNEE LIABILITY OF HAWAIIAN. Hawaiian's liability
to each passenger and/or consignee on all international flights is
limited as follows: The rules and limitations relating to liability
established by the Convention for the Unification of Certain Rules
Relating to International Carriage by Air shall to the extent such
Convention is applicable, apply to the Charter Flight(s) hereunder.
For passengers on a journey to, from, or with an agreed stopping place
in the United States of America, the Convention and special contracts
for carriage provide that the liability of Hawaiian and certain other
carrier parties to such special contracts for death of or personal
injury to passengers, is limited in most cases to proven damages not
to exceed _______________ per passenger and that this liability up to
such limit shall not depend on negligence on the part of Hawaiian.
This limit of liability is inclusive of legal fees and any costs,
except that in case of a claim brought in a State where provision is
made for a separate award of legal fees and costs, the limit shall be
________________, exclusive of legal fees and costs.
9.3 BAGGAGE LIABILITY; LIMITATIONS OF LIABILITY; EXCLUSIONS FROM
LIABILITY; DECLARATION OF HIGHER VALUE. The Terms of Contract of
Carriage, which govern baggage liability and exclusions, are attached
hereto as Exhibit "A" and made a part hereof.
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 9
Hawaiian shall not be liable for delivery by surface transportation of
checked baggage, at the passenger's point of destination where the
baggage is not presented by the passenger at least twenty-five (25)
minutes prior to the scheduled departure time of the flight on which
the passenger is transported or where the passenger is transported on
a flight on which the passenger did not hold a confirmed reservation
and the passenger's luggage did not accompany the passenger on such
flight.
9.4 CONTRACT OF CARRIAGE. Charterer's passengers may inspect the full
text of the terms of Contract of Carriage at any of Hawaiian's airport
or city ticket offices, or via the Internet at xxx.xxxxxxxxxxx.xxx.
Additionally, a free copy may be requested by writing to Hawaiian
Airlines, Inc., X.X. Xxx 00000, Xxxxxxxx, Xxxxxx 00000.
9.5 NOTIFICATION. The passengers must notify the agent of Hawaiian at
baggage check-in of the existence of (1) fragile, (2) perishable
items, (3) live animals or (4) hazardous material ("Special Items")
acceptable for air transportation in checked or unchecked baggage so
that Hawaiian may examine said items to ensure that they are properly
packed or prepared for air travel, and meets Hawaiian's guidelines.
Charterer agrees, if the charter includes transportation to Hawaii, to
advise all passengers that carriage of live animals must meet
Hawaiian's guidelines. If Hawaiian determines that items are not
properly prepared, Hawaiian will afford the passenger the choice of
(1) repacking or preparing the items according to Hawaiian's
specifications; or (2) signing a release eliminating Hawaiian from all
liability of loss or damage. If the passenger refuses either option,
Hawaiian may refuse carriage of the Special Items.
9.6 CONSEQUENTIAL DAMAGES. Under no circumstances shall Hawaiian be
liable for consequential damages whether in contract, strict
liability, or negligence.
9.7 INSURANCE. At all times during the term of this Agreement, each Party
shall, at its sole cost and expense, carry and maintain in full force
and effect:
a. With respect to insurance carried and maintained by Hawaiian:
Comprehensive Airline Liability Insurance in an amount not less than
_______________ combined single limit bodily injury (including
Passengers) and property damage liability each occurrence.
b. With respect to insurance carried and maintained by Charterer:
Comprehensive General Liability Insurance in an amount not less
than _______________ combined single limit bodily injury and
property damage liability each occurrence.
9.8 CERTIFICATES OF INSURANCE. On or before the effective date of this
Agreement, and as a condition to the effectiveness of this Agreement,
each Party shall provide the other Party with certificates of
insurance evidencing the coverage required in this Agreement. The
certificates shall indicate that the above coverage shall not be
canceled or materially altered without thirty (30) days prior written
notice by the insurers to the other Party. Hawaiian's certificate
shall name Charterer as an additional insured.
9.9 INDEMNIFICATION. Hawaiian shall indemnify and hold harmless Charterer
(including, without limitation, Charterer's officers, directors,
employees, servants and agents) for, from and against all damages and
claims for damages, demands, liabilities, actions, losses, costs,
suits, recoveries, judgments or executions (including, without
limitation, reasonable costs of investigation, litigation costs, court
costs, expert witness fees, litigation support services, settlement
costs and reasonable attorneys' fees), damages or injury to persons or
property including, without limitation, injury resulting in death,
however caused, arising from or relating
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 10
to Hawaiian's performance of its obligations under this Agreement.
Charterer shall indemnify and hold harmless Hawaiian (including,
without limitation, Hawaiian's officers, directors, employees,
servants and agents) for, from and against all damages and claims for
damages, demands, liabilities, actions, losses, costs, suits,
recoveries, judgments or executions (including, without limitation,
reasonable costs of investigation, litigation costs, court costs,
expert witness fees, litigation support services, settlement costs and
reasonable attorneys' fees), damages or injury to persons or property
including, without limitation, injury resulting in death, however
caused, arising from or relating to Charterer's performance of its
obligations under this Agreement.
ARTICLE 10. CANCELLATION CHARGES
10.1 CANCELLATION FEES. In the event that after the Agreement has been
signed by the Charterer and by Hawaiian, and:
a. The Agreement is voluntarily canceled at the request of the
Charterer; or
b. The Charter Agreement is canceled by Hawaiian due to the Charterer's
being ineligible for charter transportation under the provisions of
applicable governmental regulations; or
c. The Charter Agreement is canceled by Hawaiian due to the Charterer's
failure to make payment as prescribed herein or in Attachment A; or
d. Hawaiian cancels all future Charter Flights under all Charter
Agreements with the Charterer due to the Charterer's failure to pay
all cancellation charges due within fourteen (14) days of the
cancellation of a Charter Agreement, or any portion thereof;
then the cancellation charge will be assessed to Charterer, as liquidated
damages, and not as a penalty when the cancellation occurs:
WHEN THE FLIGHT IS CANCELED: THE CANCELLATION CHARGE
WILL BE:
At least sixty-one (61) days but not A cancellation fee of ___ of charter
more than one hundred twenty (120) price per segment plus any additional
days before a Charter Flight is to ferrying charges.
depart from point of origin.
At least thirty-one (31) days but not A cancellation fee of ___ of charter
more than sixty (60) days before a price per segment plus any additional
Charter Flight is to depart from point ferrying charges.
of origin.
At least fifteen (15) days but not A cancellation fee of ___ of charter
more than thirty (30) days before a price per segment plus any additional
Charter Flight is to depart from point ferrying charges.
of origin.
Fourteen (14) days or less before a A cancellation fee of ___ of charter
Charter Flight is to depart from point price per segment plus any additional
of origin. ferrying charges.
10.2 ATTORNEY'S FEES. If Charterer fails to pay cancellation charge, or any
other amount due under this Agreement, and Hawaiian refers the matter
for collection to an attorney, Charterer will pay a reasonable
attorney's fee not to exceed thirty percent (30%) of the amount payable
or
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 11
such lesser attorney's fee, if any, as may be legally permitted plus
costs associated with any such collection. If Hawaiian fails to pay
any amount due under this Agreement, and Charterer refers the matter
for collection to an attorney, Hawaiian will pay a reasonable
attorney's fee not to exceed thirty percent (30%) of the amount
payable or such lesser attorney's fee, if any, as may be legally
permitted plus costs associated with any such collection.
10.3 RIGHT OF CANCELLATION. Either Party may cancel this Agreement without
penalty upon one hundred and twenty (120) days' advance written notice
to the other Party.
10.4 PRIVILEGED LICENSE. Both Parties acknowledge that each Party conducts a
business that is subject to, and exists because of, privileged licenses
issued by governmental authorities. Each Party therefore agrees that,
in the event that one Party shall determine, in its reasonable judgment
(i) that the other Party is, or might be, engaged in, or about to be
engaged in, any activity or activities that jeopardizes, or could
jeopardize, its business licenses, or (ii) that the existence of this
Agreement jeopardizes or may jeopardize, its business or such licenses,
such Party shall have the right, upon notice to the other Party,
immediately to terminate this Agreement, at which time the Agreement
shall cease and terminate and be of no further force and effect;
provided, however, that the indemnity and insurance provisions of this
Agreement shall survive any such termination.
ARTICLE 11. DEPARTURE TAXES
11.1 DOMESTIC TAXES. Refer to Article 3, Section 6.
ARTICLE 12. GOVERNMENT APPROVALS
Hawaiian will, as expeditiously as possible, apply for all necessary foreign and
U.S. approvals to operate the Charter Flights. Charterer will render all
assistance in obtaining such approval as requested by Hawaiian. In the event
that the approval is not rendered the flights are canceled without penalty to
Hawaiian.
ARTICLE 13. USE OF HAWAIIAN'S NAME AND/OR LOGO.
13.1 Hawaiian grants Charterer a non-exclusive, non-transferable, limited
license to use Hawaiian's trademarks, servicemarks and trade names, but
solely in connection with the terms and obligations of this Agreement.
13.2 Charterer shall be required to execute the "Limited Use of Hawaiian's
Name and/or Logo" form ("Logo Use Form") attached hereto as Exhibit "B"
prior to Hawaiian providing Charterer with Hawaiian's logo in
camera-ready format.
13.3 If Charterer desires to provide Hawaiian's logo to any third party
vendor to reproduce Hawaiian's logo ("Third Party Vendors"), the Third
Party Vendors shall be required to execute the Logo Use Form attached
hereto as Exhibit "B" prior to Charterer providing the Third Party
Vendor with Hawaiian's logo. Failure to timely provide Hawaiian with
the executed Logo Use Form by the Third Party Vendors shall be construed
as a material breach of this Agreement. Charterer shall inform
Hawaiian's Marketing Department with list of Third Party Vendors who
possess Hawaiian's logo for reproduction and who have properly executed
the Logo Use Form.
13.4 Failure of Charterer to provide Hawaiian with the executed Logo Use Form
by the Third Party Vendors shall be construed as a material breach of
this Agreement, if Charterer executes the Logo Use Form.
13.5 Each Party shall have the right to review and approve or disapprove,
prior to printing, the portion of any and all artwork generated by the
other Party (or at its direction or
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 12
authorization) that references this Agreement or uses any trademark,
servicemark or trade name of the other Party. The generating Party
shall provide the printed materials to the other Party in a timely
manner and the other Party shall review and approve or disapprove such
materials in writing within ten (10) working days.
13.6. Each Party shall have the right to review and approve or disapprove,
prior to release, all press and/or news releases generated by the other
Party (or at its direction or authorization) that reference this
Agreement. Such Party shall provide the printed materials to the other
Party in a timely manner and the other Party shall review and approve or
disapprove such materials in writing within ten (10) working days.
ARTICLE 14. GENERAL CONDITIONS
14.1 CHARTERER AS AGENT. This Agreement is entered into by both Parties on
their own behalf. The individual consignors, consignees or passengers
shall not have the right to claim any refund of the Charter Price or
portions thereof from Hawaiian except as may be specifically provided
for in writing and signed by Hawaiian, or as may be required by law or
regulation.
14.2 GOVERNMENTAL REGULATION. This Agreement is subject to (i) the
provisions of the Federal Aviation Act of 1958, as amended; (ii) the
terms, conditions, limitations, rules and regulations set forth in
applicable governmental or other approvals as may be required.
14.3 APPLICABLE STATUTES. This Agreement shall be governed by and construed
in accordance with the laws of the State of Hawaii. Any term or
provision of this Agreement which now or hereafter is declared contrary
to any law, order, ordinance, requirement ruling or regulation of any
governmental authority, whether federal, state or local, whether now in
force or enacted or promulgated in the future, or which is otherwise
invalid, shall be deemed stricken from this Agreement without impairing
the validity of the remainder of this Agreement. Any action against
Hawaiian must be commenced in a court of competent jurisdiction in the
County of Honolulu, State of Hawaii. If any provision of this Agreement
is rendered inoperative or illegal by operation of law or otherwise, the
other provisions contained herein shall remain in full force and effect,
and in such cases the principle of severability shall govern.
14.4 WRITTEN AGREEMENT. This Agreement supersedes all prior agreements, if
any between the Parties with respect to the same subject matter, and
fully sets forth the understanding of the Parties. Any change or
amendment to this Agreement shall be in writing signed by authorized
officials of both Hawaiian and the Charterer.
14.5 STRICT PERFORMANCE. "On Time" is defined as the aircraft pushing back
from the gate no later than _________________ after the scheduled
departure time. If during a calendar month, less than _________________
of the flights depart on time, Hawaiian shall refund to Charterer a sum
calculated by multiplying _____ times the number of one way passengers
carried on the delayed flights only during that month. This calculation
shall be made within fifteen (15) days of the end of each month and
shall be paid within fifteen (15) days of receipt of the invoice from
Charterer.
Mechanical failures, breakdowns, force majeure causes and delays caused
or requested by Charterer will not count as a delayed flight for the
purpose of this paragraph. Any flight delayed because of a previous
flight delay (same aircraft) caused by mechanical failures or breakdowns
or force majeure shall not be counted as a delayed flight.
14.6 TITLES AND HEADINGS. The titles and headings of this Agreement are
included for convenience only and shall not be deemed to constitute part
of this Agreement or to affect the construction or interpretation
hereof.
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 13
14.7 GENDER. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and
vice versa.
14.8 BANKRUPTCY. In the event either Party shall (i) file a voluntary
petition in bankruptcy, (ii) make an assignment for the benefit of
creditors of all or substantially all of its assets, or (iii) fail to
secure dismissal of an involuntary petition or bankruptcy filed against
it within sixty (60) days after the filing thereof, then upon the
occurrence of any of the said events, the other Party may immediately
terminate this Agreement.
14.9 TERMINATION FOR CAUSE. If either Party shall have committed a material
breach of this Agreement or shall default in any material aspect of its
obligations under this Agreement and such breach or default is not cured
within fifteen (15) days of written notice thereof by the other Party,
such other Party may, in addition to any other remedies it may have,
immediately terminate this Agreement. All obligations incurred by the
Parties prior to the effective date of the termination will be settled
in accordance with the terms of this Agreement. Termination for cause
shall not include events covered by Article 14.13.
14.10 In the event of any action or proceeding to compel compliance with, or
with respect to any breach of, the Agreement, the prevailing Party shall
be entitled to recover all reasonable costs and reasonable expenses of
such action or proceeding including, without limitation, its reasonable
attorneys' fees and costs incurred in connection therewith regardless of
whether any formal legal action is commenced or whether such fees and
costs are incurred at or in connection with trial or appellate
proceedings.
14.11 CONFIDENTIALITY. Except in any proceeding to enforce the provisions of
this Agreement or as may be required by law, both Parties, and their
employees, officers, directors and agents shall not publicize or
disclose to any third party any of the terms or conditions of this
Agreement without the prior written consent of the other. If either
Party or any one of its employees, officers, directors or agents is
served with a subpoena or other process requiring production or
disclosure of this Agreement or any of its terms or conditions, then the
person or entity receiving such a subpoena or other process, before
complying with such subpoena or other process, shall immediately notify
the other of same and permit the other a reasonable period of time
(taking into account the terms of the subpoena or other process) to
intervene and to contest disclosure or production.
14.12 INDEPENDENT CONTRACTOR. The relationship between Hawaiian and Charterer
shall be that of independent contractor for all purposes, and in no
event shall persons employed by either Party be held or construed to be
employees of the other Party. All persons performing work hereunder and
the manner and details of performance thereof, shall be under the
exclusive control of their respective employers, and their respective
employers shall have the sole right and responsibility for the direct
supervision of its personnel through its designated representative.
Each Party shall be responsible for any and all liability to its own
employees on account of injury or death resulting therefrom, sustained
in the course of their employment. Each Party with respect to its own
employees accepts full and exclusive liability for payment of all
workers' compensation and employer's liability insurance premiums with
respect to such employees, and for the payment of all State, Federal,
county and municipal taxes, contributions or other payments for
unemployment compensation or old age benefits, pensions or annuities now
or hereafter imposed upon employers by any government or agency thereof
having jurisdiction in respect of such employees measured by the wages,
salaries, compensation or other remuneration paid to such employees, and
agrees to make such payments and to make and file all reports and
returns and to do everything necessary to comply with the laws imposing
such taxes, contributions or payments.
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 14
14.13 FORCE MAJEURE
a. Neither Party shall be liable for failure to perform under this
agreement when such failure is caused by accidents, strikes,
lockouts, or other labor disturbances or labor disputes of any
character or any other similar cause beyond its reasonable control.
b. Neither Party shall have responsibility for any delay, cancellation
or prevention of the completion of any obligation on its part to be
performed, including, but not limited to, any flight covered by
this Agreement, resulting from any seizure under local process,
sanction, quarantine restriction, act of governmental authority,
strike, work stoppage, labor dispute, war or hazard incident to a
state of war, fire, act of God or nature (including without
limitation floods, earthquakes, hurricanes or weather conditions),
mechanical difficulties, prior or civil commotion, or any other
act, matter or thing, whether or not of a similar nature, beyond
the control of either Party.
14.14 ASSIGNMENT; SUBCONTRACTOR. All covenants and agreements herein
contained shall be extended to and be binding upon the successors and
assigns of each Party; provided, however, that neither Party shall
assign its interest in and to this Agreement or its duties and
obligations under this Agreement in whole or in part or assign, pledge
or otherwise transfer the right to receive any monies to become due
under this Agreement except with the non-assigning Party's prior written
consent which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Hawaiian may subcontract with providers
of goods and services necessary to allow Hawaiian to fulfill its
obligations under this Agreement; provided, however, that in no event
shall Hawaiian subcontract with another provider of air service to
provide the actual Charter Flights without the prior consent of
Charterer.
14.15 NOTICES. All notices and other communications between the Parties
provided for or permitted hereunder shall be in writing and delivered or
mailed by registered or certified mail, return receipt requested,
overnight mail, or by telex or cable with confirmed delivery, or via
facsimile.
If to Charterer: Hawaiian Vacations, Inc.
Attn: Xxxx X. Xxxxxxxx, President
0000 Xxxx Xxxxxxxx Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Telephone: _____________
Facsimile: _____________
If to Hawaiian: Charter Sales
Hawaiian, Inc.
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
Telephone: _____________
Facsimile: _____________
with copies to: Vice President and General Counsel
Hawaiian, Inc.
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
Telephone: _____________
Facsimile: _____________
14.16 SEVERABILITY. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall be construed as if such invalid, illegal or
unenforceable provision or provisions had never been contained herein
unless the deletion of such provision or
PASSENGER AIRCRAFT CHARTER AGREEMENT
HAWAIIAN VACATIONS, INC.
Page 15
provisions would result in such a material change as to cause the
agreements contemplated herein to be unreasonable.
14.17 EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same Agreement. Any such counterpart
signature pages may be attached to the body of one Agreement to form a
complete integrated whole.
14.18 ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement constitutes the
full and complete agreement of the Parties and supersedes any other
agreement, understanding or representation, whether verbal or in writing
by or between the Parties. Any changes, amendments or other
modifications to this Agreement shall be in writing and executed by both
Parties hereto. The failure of any Party hereto to enforce at any time
any provision of this Agreement shall not be construed to be a waiver of
such provision, nor in any way affect to validity of this Agreement or
any part hereof or the right of such Party thereafter to enforce each
and every provision. No waiver of any breach of this Agreement shall be
held to constitute a waiver of any other subsequent breach.
ARTICLE 15. REPRESENTATIONS AND WARRANTIES
15.1 Each Party represents that (a) it is fully experienced, properly
qualified and, where appropriate, licensed as necessary to provide the
services specified in this Agreement; (b) it is knowledgeable and
experienced in operating the equipment to be utilized in performing its
obligations under this Agreement; and iii) is in good standing in the
state of its incorporation.
15.2 Each Party represents that it is duly organized and validly existing
under the laws of the jurisdiction in which it was formed, and that it
has obtained all licenses, permits or approvals of any governmental
authority necessary or appropriate to perform the obligations under this
Agreement.
/
/
/
/
/
/
/
/
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
HAWAIIAN AIRLINES, INC. HAWAIIAN VACATIONS, INC.
a Hawaii corporation an Alaska corporation
By /S/______________________________ By /S/____________________________
Xxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxx
Its Vice President Its President
Reservations & Schedule Planning
By /S/ ____________________________
Xxxxxxxx X. Xxxxx
Its Vice President-Finance
ATTACHMENT A
--------------------------------------------------------------------------------
PASSENGER AIRCRAFT CHARTER AGREEMENT
--------------------------------------------------------------------------------
HAWAIIAN AIRLINES, INC.
P. O. XXX 00000
XXXXXXXX, XXXXXX 00000
This Agreement is made between HAWAIIAN AIRLINES, INC. ("HAWAIIAN") and
CHARTERER designated below. It is mutually agreed that, subject to HAWAIIAN
receiving necessary regulatory approval, and to the provisions below and the
terms and conditions hereof, CHARTERER shall purchase from HAWAIIAN and HAWAIIAN
shall furnish to CHARTERER charter air transportation as described herein:
---------------------------------- ------------------------- -------------------------- -------------------------
CONTRACT NUMBER CHARTER TYPE AIRCRAFT TYPE DATE OF ISSUE
---------------------------------- ------------------------- -------------------------- -------------------------
Public DC-10 11/9/97
---------------------------------- ------------------------- -------------------------- -------------------------
Name and address of CHARTERER: HAWAIIAN VACATIONS, INC.
0000 Xxxx Xxxxxxxx Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Contact: Xxxx X. Xxxxxxxx, President
-------------------------------------- ------------------------------------------------ ----------------------------
Passenger Seats Available: Baggage Allowance/Passenger: Fuel Base Prices:
-------------------------------------- ------------------------------------------------ ----------------------------
300 2 checked bags with maximum linear dimension ________
of 62", with a maximum weight of 70 lbs. per
30 seats in first class piece; 2 carry on bags with maximum linear (Into Plane)
dimensions 41".
270 seats in coach class
-------------------------------------- ------------------------------------------------ ----------------------------
CHARTER ROUTING: HNL-ANC-HNL
CHARTER PERIOD: February 1, 1998 through April 30, 1999
TOTAL ROUNDTRIPS: 151
GUARANTEED ROUNDTRIPS: Charterer guarantees all flights before February
1, 1999 in this schedule, unless this Agreement is
canceled by either Party as provided for in this
Agreement.
I. COMMITTED FLIGHT SCHEDULE
ROUNDTRIP ORIGINATES
-------------------- -------------------------- ------------ -------------------------------------- -------------
DEP DEPARTURE PERIOD TRIPS
FLIGHT NO. ROUTE HNL
-------------------- -------------------------- ------------ -------------------------------------- -------------
938 HNL-ANC TUES 02/03/98-04/27/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
938 HNL-ANC THU 11/19/98-4/23/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
938 HNL-ANC FRI 02/06/98-04/30/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
-------------------- -------------------------- ------------ -------------------------------------- -------------
939 ANCHNL WED 02/04/98-04/28/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
-------------------- -------------------------- ------------ -------------------------------------- -------------
939 ANC-HNL FRI 11/20/98-04/23/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
939 ANC-HNL SAT 02/07/98-05/01/99
-------------------- -------------------------- ------------ -------------------------------------- -------------
II. OPERATIONAL TIMES
OPERATIONAL SCHEDULE
---------------- -------------------------------------- -------------------------- -------------------------
DEPARTURE TIME
ROUTE ROUNDTRIP ORIGINATES ARRIVAL TIME
---------------- -------------------------------------- -------------------------- -------------------------
HNL-ANC 02/03/98-04/04/98 11:55 p.m. 6:40 a.m. + 1
---------------- -------------------------------------- -------------------------- -------------------------
HNL-ANC 04/05/98-10/24/98 10:55 p.m. 6:40 a.m. + 1
---------------- -------------------------------------- -------------------------- -------------------------
HNL-ANC 10/25/98-04/03/99 11:55 p.m. 6:40 a.m. + 1
---------------- -------------------------------------- -------------------------- -------------------------
HNL-ANC 04/04/99-04/27/99 10:55 p.m. 6:40 a.m. + 1
---------------- -------------------------------------- --------------------------- ------------------------
---------------- -------------------------------------- --------------------------- ------------------------
ANC-HNL 02/04/98-04/04/98 8:35 a.m. 1:15 p.m.
---------------- -------------------------------------- -------------------------- -------------------------
ANC-HNL 04/05/98-10/24/98 8:35 a.m. 12:15 p.m.
---------------- -------------------------------------- -------------------------- -------------------------
ANC-HNL 10/25/98-04/03/99 8:35 a.m. 1:15 p.m.
---------------- -------------------------------------- -------------------------- -------------------------
ANC-HNL 04/04/98-04/28/99 8:35 a.m. 12:15 p.m.
---------------- -------------------------------------- -------------------------- -------------------------
III. CHARTER COST
--------------------------- ----------------------- ------------------- ------------ -----------------------
ROUNDTRIP ROUND
PERIOD ROUTE LIVE COST TRIPS TOTAL
--------------------------- ----------------------- ------------------- ----------- -----------------------
02/03/98-05/01/99 HNL-ANC-HNL
--------------------------- ----------------------- ------------------- ------------ -----------------------
An additional charge or add-on of _____ plus applicable tax per
passenger round-trip will be charged to Charterer for passengers
traveling between Anchorage and an outer island without a stopover in
Honolulu.
For passengers traveling between the islands, except as noted above,
the segment one way charge to Charterer will be _____ plus applicable
tax.
As of October 13, 1997, the current applicable tax rate due on through
fares (direct connections without stopover) is the federal city pair
tax rate of .0044% of the applicable through fare, plus the $6 US
international departure tax in each direction per passenger plus $1 per
person per segment. The 9% domestic transportation tax is applicable on
additional interisland flight segments, including add-on fares due to
stopover or additional interisland segments. Charterer agrees to
utilize Hawaiian for approximately ninety percent (90%) of all
interisland passenger travel.
Payment of the foregoing taxes and/or fees, when imposed, will be the
responsibility of Charterer and Charterer will remit such payments
directly to the governmental authority.
IV. PAYMENT SCHEDULE
PAYMENTS FOR ROTATIONS ARE DUE FIFTEEN (15) DAYS PRIOR TO ORIGINATING
DEPARTURE OF FIRST ROTATION OF THE WEEK, FOR A TOTAL OF THREE (3)
ROTATIONS FROM 02/03/98 THROUGH 03/19/98 AND 12/17/98 THROUGH 03/18/99,
AND THEN A TOTAL OF TWO (2) ROTATIONS FROM 03/20/98 THROUGH 12/15/98
AND 03/19/99 THROUGH 04/27/99, AND ARE DUE AS FOLLOWS:
------------------------------------ ----------------------------------- ----------------------------------
PAYMENT DATE(1) AMOUNT PERIOD
------------------------------------ ----------------------------------- ----------------------------------
MONDAY 01/19/98-03/02/98
MONDAY 03/09/98-11/23/98
MONDAY 11/30/98-03/01/99
MONDAY 03/08/99-04/05/99
MONDAY 04/12/99-04/12/99
------------------------------------ ----------------------------------- ----------------------------------
(1) Payments are due fifteen (15) days prior to originating departure of
first rotation of the week. Upon contract execution, all rotations
within fifteen (15) days must be paid immediately.
V. SECURITY
NO LATER THAN JANUARY 26, 1998, CHARTERER WILL DELIVER TO HAWAIIAN, A
LETTER OF CREDIT IN THE AMOUNT OF ______________________________, WITH
TERMS SATISFACTORY TO HAWAIIAN.
VI. TERM OF AGREEMENT, RENEWAL AND RIGHT OF CANCELLATION
(1) The price established herein shall be effective for the period
February 1, 1998 to April 30, 1999. The Parties agree to
negotiate in good faith to establish the price for the second
year, May 1, 1999 to April 30, 2000. Negotiations shall
commence no later than September 1, 1998.
(2) If an agreement cannot be reached on a new price by December
1, 1998, the contract will terminate, upon one hundred twenty
(120) days' advance written notice from either Party unless
otherwise agreed, in writing, by both Parties.
VII. GENERAL TERMS
(1) Meals will be provided at appropriate times as part of the
contract price. Except as set forth in this Agreement, movie
headsets, alcoholic beverages and all "Duty Free" sales will
be for the account of Hawaiian.
(2) Hawaiian reserves the exclusive right to sell and carry cargo
on these flights. It is further agreed that all cargo will be
boarded only if Charterer does not use all of the chartered
space for its passengers baggage, including excess baggage.
Pursuant to paragraph 4.13, all excess baggage will have a
higher boarding priority than any freight sold by Hawaiian.
(3) ANC-HNL: Excess baggage charges collected by Hawaiian in
Anchorage will be forwarded to Charterer's airport supervisor
within one (1) hour of each departure..
HNL-ANC: Hawaiian will reduce Charterer's payment per rotation
by ___________ for any excess baggage charges collected by
Hawaiian.
FAILURE TO COMPLY WITH THE REQUIREMENTS LISTED ABOVE WILL RESULT IN THE
CANCELLATION OF THIS AGREEMENT AND ALL TERMS, CONDITIONS AND PROVISIONS
PERTAINING TO THIS AGREEMENT WILL BE CONSIDERED NULL AND VOID.
HAWAIIAN AIRLINES, INC. HAWAIIAN VACATIONS, INC.
a Hawaii corporation an Alaska corporation,
By By
------------------------------------------ -------------------------------
Xxxxx X. Xxxxxxxxx Its
Its Vice President
Reservations & Schedule Planning
By
------------------------------------------
Xxxxxxxx X. Xxxxx
Its Vice President-Finance
EXHIBIT A
TERMS OF CARRIAGE
(Attached)
EXHIBIT B
[LOGO]
LIMITED USE OF HAWAIIAN AIRLINE'S NAME AND/OR LOGO
Hawaiian Airlines, Inc., a Hawaii corporation ("Hawaiian") grants :
_________________________________, ("Contractor" or "Vendor")
- Non-exclusive - Non-transferable - Limited license
to use Hawaiian's trademarks, servicemarks and trade names, but solely in
connection with these agreed upon terms and obligations. Hawaiian Airlines'
Marketing Department shall provide Contractor with the necessary artwork.
CONTRACTOR/VENDOR REQUIREMENTS FOR USEAGE OF HAWAIIAN'S ARTWORK AS FOLLOWS:
- Signed copy of this form must be forwarded prior to printing or production
start to:
Senior Director of Marketing and Promotions
Hawaiian Airlines
X.X. Xxx 00000 Xxxxxxxx, XX 00000
- Hawaiian Airlines shall have the right to REVIEW AND APPROVE or disapprove
artwork prior to production. Contractor shall provide the printed materials
to Hawaiian in a timely manner and Hawaiian shall respond with approval or
disapproval in a timely manner
- Two (2) samples of the finished product or ad must be provided to Hawaiian
within seven (7) days of production.
- Contractor must return of the artwork (unless otherwise directed by
Hawaiian Airlines) within seven (7) days of production.
- Upon completion of the production, contractor shall destroy any and all
screens and/or films developed for this assignment, unless otherwise
instructed by Hawaiian.
GOVERNING LAW AND DISPUTES. This agreement shall be governed by and construed in
accordance with the laws of the State of Hawaii. Any dispute, controversy or
claim arising out of or relating to this agreement, or the breach thereof, shall
be settled by immediate binding arbitration in accordance with the Arbitration
Rules then prevailing of the American Arbitration Association for Commercial
Disputes. The Arbitrators shall interpret the agreement in accordance with the
laws of the State of Hawaii and the arbitration shall take place in Honolulu,
Hawaii. Judgment upon any arbitral award contemplated above may be entered in
any court in the State of Hawaii having jurisdiction.
CONTRACTOR/VENDOR AGREES TO THE TERMS AND CONDITIONS STATED ABOVE:
By______________________________ Print Name: _______________________________
(Authorized Signature)
________________________________ _______________________________
(Title) (Date)
Address: ____________________________________________________________________
Phone: ______________________________ Fax: _______________________________
Intended Usage of Hawaiian Airlines' artwork: _______________________________
_____________________________________________________________________________
EXHIBIT C
The following are amenities/services that Hawaiian will provide to Charterer's
customers for flight delays:
REDACTED IN ITS ENTIRETY.
DOMESTIC FARE RULES TARIFF BA-2
4th Revised Page 70
SECTION V BAGGAGE
RULE NO.
230 LIABILITY -- BAGGAGE
A) LIMITATIONS OF LIABILITY
Liability, if any, for the loss of, damage to, or the delay in
the delivery of, any personal property, baggage (whether such
property has been checked in or otherwise delivered into the
custody of the carrier) shall not be more than USD 1,250.00
per passenger subject to certain exclusions set forth below
unless the passenger elects to pay for higher liability as
provided for in paragraph C) below. These limitations also
apply to baggage or personal property accepted by HA for
temporary storage at a city or airport ticket office or
elsewhere before or after the passengers trip.
EXCEPTION 1: When transportation is via HA, and one or more
carriers with different limitations of
liability, and responsibility for loss, damage
or delay in delivery of baggage cannot be
determined, the lowest maximum liability will
apply when the claim is filed with HA.
EXCEPTION 2: The maximum liability for the loss, damage or
delay in delivery of any assistive device (such
as a wheelchair which is the property of the
paying passenger) is limited to 200% of the
normal baggage liability on any domestic segment
of a domestic or international trip.
B. EXCLUSIONS FROM LIABILITY
1) HA shall not be liable for the loss, damage or delay in delivery of
any property which is not acceptable for transportation in
accordance with Hawaiian's Rules 190, 195 and 200, or for any other
loss or damage of whatever nature resulting from any such loss or
damage, or from the transportation of such property. This exclusion
is applicable whether the nonacceptable property is included in the
passengers checked baggage, with or without the knowledge of the
carrier.
2) HA shall not be liable for the loss, damage or delay in delivery of
a passenger's cabin baggage.
8th Revised Page 71
SECTION V BAGGAGE
RULE NO.
230
LIABILITY -- BAGGAGE
EXCLUSIONS FROM LIABILITY (CONTINUED)
3) HA assumes no liability for medicines including but not limited to
vitamins, dietary supplements, over counter home remedies etc.,
orthotic devices (surgical supports), money, jewelry, camera
equipment, kitchen appliances of any kind, or other valuable or
fragile items, including but not limited to items listed below,
whether contained in checked or unchecked baggage, with or without
the knowledge of HA:
A) ARTISTIC ITEMS
Sculptures; paintings or pictures, framed or unframed; and
models. Sconces; decorative screens; items of decorator stones;
marble, onyx and alabaster; vases; figurines; trophies;
souvenirs; other decorator objects and curios, chess sets;
drawings; statues; or other sculptures; paintings; picture
albums; plastics; plaster of paris molds and casts; photographs;
display models; antique furniture; fish tanks; terrariums;
religious or ceremonial mats; artifacts.
B) CHINAWARE/CERAMICS/POTTERY (See also GLASS)
Ceramics, pots, bowls, crockery, dishes, glasses, earthenware,
and other containers or ornaments made of porcelain or clay
hardened by heat.
C) ELECTRONIC AND MECHANICAL ITEMS
Typewriters, sewing machines, watches, clocks, sensitive
calibrated tools and instruments, televisions, radios (including
citizen band), calculators, audio and video equipment, computers
and/or parts thereof, cellular telephones and/or parts thereof,
compact disc players, discs, and parts thereof, electronic
microscopes, electographs, and electronic medical equipment that
includes tubes and glass.
D) GARMENT BAGS
Garment Bags and suit/dress covers of light, flimsy plastic or
vinyl designed for carrying and not for shipping.
E) GLASS (See also CHINAWARE/CERAMICS/POTTERY)
Glassware, crystal, mirrors, bottles and any liquids contained
therein (excluding reasonable quantities or toiletries),
telescopes, binoculars, barometers; prescription or
non-prescription sunglasses, eyeglasses and contact lenses.
F) HOUSEHOLD ARTICLES
Lamps, lamp shades, picture frames and furniture.
G) LIQUIDS
H) LIQUOR/CARTONS
Liquor/cartons provided for hand carriage by duty-free shops.
3rd REVISED Page 71A
SECTION V BAGGAGE
RULE NO.
230
LIABILITY -- BAGGAGE
EXCLUSIONS FROM LIABILITY (CONTINUED)
I) MUSICAL INSTRUMENTS AND EQUIPMENT
Guitars, violins and violas, cello, organs, harps, drums, and other
musical instruments and amplifiers or speakers used in conjunction with
electronic instruments that are not protected or in carrying cases that
are not sufficient to prevent damage during the course of normal baggage
handling.
J) PAPER
Business/personal documents, negotiable papers, securities, manuscripts,
publications (including manuals and textbooks), mechanical drawings,
blueprints, maps, charts, historical documents, and photographs.
NOTE: All photographs referred to in this section include negatives,
prints, portraits and slides.
K) PERISHABLE ITEMS
(1) Floral and nursery stock such as flower, fruit and vegetable plants;
cut flowers and foliage; floral displays; and bulbs.
(2) Foodstuffs (fresh and frozen) such as fruits, vegetables, meat, fish
cheese, poultry, and bakery products.
(3) Medicines including but not limited to vitamins, dietary
supplements, over counter home remedies etc.,
(4) Plants and foliage such as branches and blossoms or flowers, fruits
and vegetables.
L) PHOTOGRAPHIC/CINEMATOGRAPHIC EQUIPMENT
Cameras, camera lenses, film (processed or unprocessed), photoflash
equipment, photometers, spectroscope, phototubes, or other devices
using sensitive tubes or plates.
M) PLASTICS (See also TOYS)
N) PRECISION ITEMS(See also ELECTRONIC AND MECHANICAL ITEMS)
Microscopes, oscilloscopes, binoculars, meters, counters, polygraphs
electrographs, medical equipment, watches, clocks, and other sensitive
calibrated tools and equipment.
O) RECREATIONAL AND SPORTING GOODS
Backpacks, sleeping bags, and knapsacks (and contents thereof) made of
cloth, plastic, vinyl, or other easily torn material, and those that
have aluminum frames, outside pickets, straps, buckles and other
protruding parts.
2nd REVISED Page 71B
SECTION V BAGGAGE
RULE NO.
230
LIABILITY -- BAGGAGE
EXCLUSIONS FROM LIABILITY(CONTINUED)
P) TOYS
Dolls, stuffed animals, dollhouses, and model trains and airplanes.
Q) MISCELLANEOUS ITEMS
Natural fur products, irreplaceable times, sample goods for resale,
heirlooms, collectives, artifacts, precious metals/stones,
silverware, cash. toolboxes and tools.
R) DENTURES AND RETAINERS
4. HA shall not be liable for damage to baggage which does not impair the
ability of the baggage function, and specifically shall not be liable
for damage arising from the normal wear and tear of baggage handling,
including but not restricted to scratches, scuffs, punctures, or
marks.
5. HA shall not be liable for loss or damage to articles which are
strapped, fastened, or otherwise secured to other baggage being checked
and which are not independently tagged and/or packaged. Such items
include but are not restricted to, sleeping bags, luggage racks, luggage
carriers and umbrellas.
6. HA shall not be liable for the loss, damage to, or delay in delivery of
any property checked by a passenger traveling on a nonrevenue or reduced
rate ticket, except for any assistive devices.
7. HA shall not be liable for the loss, damage or delay in delivery of any
baggage accepted by another carrier for interline transfer to HA if the
items are not acceptable for transportation as checked baggage by HA
8. The owner of a pet shall be responsible for compliance with all
governmental regulations and restrictions, including furnishing valid
health and rabies vaccination certificates when required. HA shall not
be liable for the loss or expense due to the passenger's failure to
comply with this provision, and HA shall not be responsible if any pet
is refused passage through any county, state or territory.
C) DECLARATION OF HIGHER VALUE
1. A passenger may, when checking in for a flight and presenting
property for transportation, pan an additional charge for each
carrier on which the property is to be transported and declare a
value higher than the maximum amounts specified in paragraph A)
above and up to the maximum specified below, in which event, HA's
liability shall not exceed the higher declared value.
2. Any declared value shall not apply to items listed in paragraph B,
"Exclusions from Liability" above or similar valuables when such
valuables are included in baggage checked or otherwise delivered
into the custody of HA.
1st REVISED Page 71C
SECTION V BAGGAGE
RULE NO.
230
LIABILITY -- BAGGAGE
DECLARATION OF HIGHER VALUE CONTINUED)
3. HA's excess valuation may be purchased at the rate of USD 1.00 per USD
100.00 of declared value. The declared value is not to exceed USD
2,500.00.
4. "Declaration of Higher Value" does not apply to live animals.
1ST REVSIED Page 71D
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