These Platform Terms and Conditions for Air Carriers and Air Operators (this “Agreement”) are entered into by and between BlackBird Air Inc. (“BlackBird”) and an individual or entity agreeing to accept operational control under CFR 135 to be further regarded as the “Operator.” Each of BlackBird and Operator is a “Party” and collectively, the “Parties”.
ADDITIONALLY, AN OPERATOR/AIR CARRIER PARTNERING WITH BLACKBIRD UNDERSTANDS THAT BLACKBIRD DOES NOT PROVIDE AIR TRANSPORTATION AS AN FAA CERTIFICATED DIRECT AIR CARRIER OR AIR OPERATOR (I.E. A PART 135 OPERATOR); BLACKBIRD DOES NOT OWN, MAINTAIN, OR OPERATE AIRCRAFT AND DOES NOT DIRECTLY EMPLOY FLIGHT CREW. BLACKBIRD MAY ACT AS AN AGENT TO USERS OR AN AGENT TO PART 135 AIR CARRIERS OR OPERATORS. YOU AGREE THAT THE SERVICES, AIRCRAFT AND RELATED ASSETS PROVIDED BY A THIRD-PARTY PROVIDER, WHETHER OR NOT ARRANGED OR HIRED THROUGH THE PLATFORM (“TRANSPORTATION-RELATED SERVICES”) ARE THE RESPONSIBILITY OF THAT THIRD-PARTY PROVIDER, AND THAT IN ALL CASES BLACKBIRD’S LIABILITY TO YOU SHALL BE LIMITED AS SET FORTH IN SECTION 13.
This Agreement provides that all disputes between an operator and BlackBird will be resolved by BINDING ARBITRATION. AN OPERATOR AGREES TO GIVE UP OPERATOR’S RIGHT TO GO TO COURT to assert or defend Operator’s rights under this contract, except with respect to matters that may be taken to small claims court. An operator’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and an operator’s claims cannot be brought as a class action. Please review Section 11 for the details regarding the agreement to arbitrate any disputes with BlackBird.
WHEREAS, BlackBird owns and maintains an online marketplace (the “Platform”) that connects aircraft operators or air carriers operating flights under 14 CFR Part 135 and end users (“Users”); and
WHEREAS, Operator wishes to be listed on the Platform in order to connect with and provide charter aircraft services under 14 CFR Part 135 (“Charter Services”) to Users.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
a. Operator understands and agrees that the Platform provides an online aviation marketplace. BlackBird is not an FAA-certificated direct air carrier or air operator, does not own, maintain, or operate aircraft, and does not directly employ pilots.
b. By agreeing to be listed on the Platform, Operator represents and warrants that it has been granted the authority to conduct operations by the FAA and DOT and has the appropriate FAA-issued certificates.
c. Operator acknowledges that BlackBird may remove Operator from the Platform at any time in BlackBird’s sole discretion.
d. Operator agrees that it will provide Charter Services to Users pursuant to an agreement between Operator and each such User (the “Charter Agreement”). Operator will provide the applicable Charter Agreement to BlackBird in advance of such User’s booking the Charter Services so that BlackBird may make available that Charter Agreement to such User. Operator understands and acknowledges that BlackBird (i) is not responsible for any User’s performance of obligations with respect to a Charter Agreement, and (ii) makes no guarantees with respect to any User.
a. Operator agrees that:
a. Operator agrees that:
a. Operator is responsible for ensuring that its aircraft used to provide the Charter Services (the “Operator Aircraft”) have a valid and effective FAA-issued airworthiness certificate and registration certificate.
b. Operator Aircraft must be equipped and maintained in accordance with 14 CFR Part 135.
c. Twenty-four (24) hours prior to a scheduled flight, Operator shall ensure that scheduled maintenance has been performed and the maintenance logbook and/or Minimum Equipment List (MEL) has been reviewed and cleared.
d. Operator is responsible for ensuring that the interior and exterior of the Operator Aircraft is clean and ready for Users at the time that the Charter Services are to be provided.
e. Operator shall communicate any known scheduled maintenance involving the Operator Aircraft to BlackBird no later than 7 days prior to the date on which such maintenance is scheduled to occur, and shall provide details concerning the expected duration and return to service date and time for such Operator Aircraft.
f. Operator shall notify BlackBird immediately of any unscheduled maintenance event, and shall include in such notice an estimated return to service date and time. Any adjustments to the foregoing estimates will be communicated to BlackBird immediately.
g. In cases of reasonable necessity, Operator may substitute another type of aircraft; provide the aircraft must have the same seating capacity and be substantially similar in mission capability, including speed, range, and payload. Operator shall not assign its performance of the Charter Services to another operator.
5. Payment and Pricing. Operator agrees to provide the Charter Services to Users at the rates indicated on the pricing schedule agreed to by the Parties in writing. Operator hereby authorizes BlackBird to collect from Users amounts corresponding to such rates and remit such amounts to Operator within 14 days of receiving Operator’s invoice for Charter Services rendered.
6. Independent Contractor. Each of the Parties hereto is an independent contractor and nothing in this Agreement is intended to, or shall be deemed to, establish any partnership, joint venture, employer-employee or principal-agent relationship between the Parties, or authorize either Party to make or enter into any commitments for or on behalf of the other.
7. Modification. BlackBird reserves the right, in its sole discretion, to change the terms of this Agreement on a going-forward basis (the “Changes”) at any time, provided that BlackBird notifies Operator of the Changes at least 30 days in advance. Operator may accept or reject the Changes within 30 days of receiving notice thereof. If Operator does not accept the Changes, then BlackBird may delist the Operator immediately and Operator may no longer use the Platform. Notwithstanding the foregoing, Operator will be deemed to have accepted the Changes if Operator enters into an agreement with a User to provide Charter Services after being notified of the Changes. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was effective at the time the dispute arose. The failure of either party at any time to require the performance by the other of any of the terms or provisions hereof shall in no way affect the right of that party thereafter to enforce the same; nor shall the waiver by either party of any breach of any of the terms or provisions hereof be taken or held to be a waiver of any succeeding breach of any such term or provision, or as a waiver of the term or provision itself.
8. Indemnification. Operator agrees to defend and indemnify BlackBird and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) Operator’s breach of this Agreement or any agreement between Operator and a User (including any Charter Agreement); (b) Operator’s violation of any law or regulation; (c) Operator’s negligence or willful misconduct; (d) any dispute or issue between Operator and any third party, including any User; or (e) Operator’s provision of (or failure to provide) the Charter Services. BlackBird reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Operator (without limiting Operator’s indemnification obligations with respect to that matter), and in that case, Operator agrees to cooperate with BlackBird’s defense of that claim.
9. Disclaimer of Warranty. The Platform and all materials and content available through the platform are provided “as is” and on an “as available” basis, and BlackBird disclaims all warranties and conditions of any kind, whether express or implied, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement, and any warranty arising out of course of dealing, usage, or trade. BlackBird does not warrant that the Platform or any portion of the Platform will be uninterrupted, secure, or free of errors, viruses or other harmful components, and does not warrant that any of those issues will be corrected. BlackBird does not warrant that any listing on the Platform will result in Operator being engaged to provide charter services, AND MAKES NO WARRANTIES OR GUARANTEES RELATED TO USERS. Operator acknowledges and agrees that flying is inherently dangerous and may lead to serious injury or death, and agrees to assume all risk for any damage that may result from malfunction or failure of the OPERATOR aircraft OR THE ACTS OR OMISSIONS OF A PILOT. The limitations, exclusions and disclaimers in this section apply to the fullest extent permitted by law. BlackBird does not disclaim any warranty or other right that BlackBird is prohibited from disclaiming under applicable law.
10. Limitation of Liability. In no event will BlackBird be liable to Operator for any indirect, incidental, consequential, punitive or special damages, arising out of or related to this Agreement, including, without limitation, damages for loss of business or loss of profits and the like, even if BlackBird has been advised of the possibility of such damages. Except as provided in Section 11.d.II, BlackBird’S aggregate liability arising out of or related to this Agreement will be limited to direct damages in the amount of $1,000.
a. Generally. In the interest of resolving disputes between the Parties in the most expedient and cost effective manner, and except as described in Section 11.b, Operator and BlackBird agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. OPERATOR ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, OPERATOR AND BLACKBIRD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Despite the provisions of Section 11.a, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either Party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between Operator and BlackBird will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (collectively, “AAA Rules”) as modified by the terms of this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BlackBird. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice of Arbitration; Process. A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party by certified U.S. Mail or by Federal Express (signature required) or, only if that other Party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). BlackBird’s address for Notice of Arbitration is: BlackBird Air Inc., c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The Notice of Arbitration must: (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought (“Demand”). The Parties will make good faith efforts to resolve the claim directly, but if the Parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, Operator or BlackBird may commence an arbitration proceeding. All arbitration proceedings between the Parties will be confidential unless otherwise agreed by the Parties in writing. During the arbitration, the amount of any settlement offer made by Operator or BlackBird must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards Operator an amount higher than the last written settlement amount offered by BlackBird in settlement of the dispute prior to the award, BlackBird will pay to Operator the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
e. Fees. If Operator commences arbitration in accordance with this Agreement, BlackBird will reimburse Operator for Operator’s payment of the filing fee, unless Operator’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, Operator may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of the address Operator provides to BlackBird, as may be updated from time to time. If the arbitrator finds that either the substance of Operator’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Operator agrees to reimburse BlackBird for all monies previously disbursed by it that are otherwise Operator’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either Party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions. OPERATOR AND BLACKBIRD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Operator and BlackBird agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
g. Enforceability. If Section 11.f is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in that case, the Parties agree that the exclusive jurisdiction and venue described in Section 12.e will govern any action arising out of or related to this Agreement.
a. Entire Agreement. This Agreement is the entire and exclusive understanding and agreement between Operator and BlackBird regarding the listing of Operator on the Platform.
b. Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. The Parties agree to negotiate in good faith an enforceable substitute provision for any unenforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision. If the Parties are unable to agree on a substitute provision, then BlackBird may terminate this Agreement immediately upon notice to Operator and delist Operator from the Platform.
c. Waiver. BlackBird’s failure to require performance of any provision of this Agreement will not affect BlackBird’s right to require performance at any other time, nor will a waiver of a breach or default under the Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default, or a waiver of the provision itself. Any waiver of the provisions of this Agreement or of BlackBird’s rights or remedies under this Agreement must be in writing to be effective.
d. Assignment. Operator may not assign or transfer this Agreement or Operator’s rights under this Agreement, in whole or in part, by operation of law or otherwise, without BlackBird’s prior written consent. Any assignment in violation of the foregoing shall be null and void. BlackBird may assign this Agreement at any time without notice or consent. This Agreement is binding upon each Party, its successors, and permitted assigns.
e. Governing Law. This Agreement is governed by the substantive and procedural laws of the State of California, without giving effect to provisions related to choice of laws, or conflict of laws. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts with jurisdiction over Santa Clara County, California, and each Party hereby consents to the personal jurisdiction thereof.