XOJET Coast2Coast™ Program Terms and Conditions

These XOJET Coast2Coast™ Program Terms and Conditions (these "Terms and Conditions") are part of and incorporated into that certain XOJET Coast2Coast™ Program Agreement (the, a "Program Agreement") between XOJET, Inc., a Delaware corporation ("XOJET"), and you (the "C2C Program Customer"). Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Program Agreement.

1. C2C PROGRAM HOURS; SERVICE.

1.1 The number of C2C Program Hours purchased by the C2C Program Customer is set forth in the Program Agreement. C2C Program Hours may only be purchased in 25 hour increments.
1.2 XOJET shall provide to C2C Program Customer guaranteed access to C2C Program Aircraft for C2C Program Trips solely between the C2C Program Service Area Groups (as defined in Section 1.3 below) subject to the following "Minimum Notice" requirements: (i) for non-Peak Travel Days the C2C Program Customer must provide 12 hours notice and accept a +/- 2 hour flexible departure time for guaranteed access to C2C Program Aircraft under the C2C Program, and (ii) for Peak Travel Days, C2C Program Customer must provide 96 hours notice and accept a +/- 3 hour flexible departure time for guaranteed access to C2C Program Aircraft under the C2C Program. "Peak Travel Days" are listed in Appendix A, subject to XOJET removing or adding days from the list of Peak Travel Days, provided that XOJET may not designate more than 14 Peak Travel Days in any calendar year.
1.3 C2C Program Customer may fly on a C2C Program Aircraft between any departure airport listed in one Service Area Group and any arrival airport listed in the other Service Area Group without a ferry charge provided C2C Program Customer provides the proper Minimum Notice for the flight. If C2C Program Customer does not provide at least the Minimum Notice, travel on C2C Program Aircraft shall be subject to availability for travel between the Service Area Groups and may result in the addition of a standard ferry charge for ferrying C2C Program Aircraft to the applicable airport in the departure Service Area Group to accommodate the desired departure time. As used herein, (i) a "Service Area Group" means either the Eastern Service Area Group or the Western Service Area Group, (ii) the "Eastern Service Area Group" means the following airports:, ACK, BED, BOS, BWI, FRG, FXE, HEF, HPN, IAD, MIA, MVY, OPF, PBI, PNE, and TEB, and (iii) the "Western Service Area Group" means the following airports: BUR, BFI, CRQ, LAS, LAX, LGB, OAK, PHX, SBA, SFO, SJC, and VNY. For the avoidance of doubt, travel is not permitted outside the contiguous 48 United States or to any airport not included within a Service Area Group (including for interim stops on an itinerary with an departure airport in one Service Area Group and a final arrival airport in the other Service Area group, unless such interim stop is the result of a mechanical decision, an event of force majeur or a Pilot-In-Command decision).
1.4 Travel under this C2C Program is solely limited to travel from an airport in one Service Area Group to an airport in another Service Area Group, with no interim stops at non-Service Area Group airports (other than stops resulting from a mechanical diversion, an event of force majeur or Pilot-In-Command decision) (each, a "Qualifying C2C Program Trip"). In the event, C2C Program Customer changes the itinerary for an originally scheduled Qualifying C2C Program Trip that includes a departure or arrival airport that is a non-Service Area Group airport the trip shall no longer qualify as a Qualifying C2C Program Trip (such trip, a "Non-Qualifying C2C Program Trip") and shall be billed to the C2C Program Customer as a guaranteed trip at the rates available in the market at the time of the Non-Qualifying C2C Program Trip. C2C Program Customer shall be solely obligated to pay for the expenses associated with any Non-Qualifying C2C Program Trip within 15 days of invoice by XOJET and any failure to make such payment in a timely manner shall be treated as a late payment subject to the provisions of Section 3.4 below.
1.5 An XOJET service representative shall be on duty to service C2C Program Customers under the C2C Program 24 hours a day, 7 days a week, and 365 days a year.
1.6 XOJET shall operate C2C Program Aircraft under Federal Aviation Regulations ("FAR") Part 135 by ARG/US Platinum rated Certified Air Carrier. XOJET shall have and exercise possession, command, and operational control of C2C Program Aircraft. During any and all flights conducted pursuant to this Program Agreement, the Pilot-in-Command (as defined by the FAA) of such flight shall at all times be empowered to take all steps necessary in the interest of the safety of C2C Program Aircraft, its passengers, its crew, any cargo, and the operation of the flight, including re-routing, shortening, lengthening, terminating or cancelling such flight.
1.7 C2C Program Aircraft made available for a C2C Program Trip shall be determined in the sole discretion of XOJET; provided, however, that the C2C Program Customer may request either a Citation X or a Challenger 300 for its C2C Program Trip, such request to be fulfilled to the extent the requested C2C Program Aircraft is available.

2. TERM AND TERMINATION; RENEWAL.

2.1 Term. This Program Agreement and the C2C Customers participation in the C2C Program shall terminate automatically upon the earliest to occur of the following: (i) complete use of the C2C Program Hours in accordance with the terms of this Program Agreement, (ii) termination by either party upon not less than 30 days prior written notice to the other party and (iii) termination immediately upon written notice by either party if the other party is in material breach of this Program Agreement. In the event this Program Agreement is terminated by C2C Program Customer due to a material breach by XOJET, or by XOJET without any breach by C2C Program Customer, the then current unused balance of the C2C Program Price and C2C Fuel Deposit shall be refunded to C2C Program Customer not more than 10 business days after the effective date of such termination; provided, however, that in the event this Program Agreement is terminated by XOJET due to a material breach of this Program Agreement by C2C Program Customer, XOJET shall be entitled to offset any amounts refundable to the C2C Program Customer against damages suffered by XOJET.
2.2 Survival of Obligations. All obligations of C2C Program Customer or XOJET that accrue or are owed to XOJET or C2C Program Customer, respectively, at or prior to any termination of this Program Agreement, and any other obligations which by their terms survive termination of this Program Agreement, shall survive such termination.
2.3 Renewal. C2C Program Customer may renew this Program Agreement by (i) purchasing additional C2C Program Hours ("Renewal C2C Program Hours") in 25 Hour increments at the C2C Program Price in effect at the time of the renewal (the "Renewal C2C Program Price") and (ii) making an additional C2C Fuel Deposit (the "Renewal C2C Fuel Deposit") equal to the product of (i) the product of (a) the C2C Hourly Fuel Rate in effect at the time of renewal and (b) the sum of (I) 1 and (II) the applicable federal excise tax rate and (ii) the number of C2C Program Hours purchased . Accounting for Renewal C2C Program Hours and the Renewal C2C Fuel Deposit shall be handled in the same manner as the accounting for the C2C Program Hours (as set forth in Section 3.1.2) and the C2C Fuel Deposit (as set forth in Section 3.2.3).
2.4 Non-Renewal; Program Completion Hours Option. In the event C2C Program Customer elects to not renew its participation in the C2C Program pursuant to Section 2.3, in lieu of a refund of any remaining balance of the C2C Program Price and C2C Fuel Deposit, C2C Customer may purchase C2C Program Completion Hours (as defined below) at the C2C Program Completion Price (as defined below). As used herein (i) "C2C Program Completion Hours" means the number of flight hours that allows the C2C Program Customer to travel from one Service Area Group to another Service Area Group on a Qualifying C2C Program Aircraft after deducting the remaining balance of C2C Program Hours at the time of purchase, and (ii) "C2C Program Completion Price" means an amount equal to sum of (i) the number of Program Completion Hours multiplied by the then current market rate for guaranteed hours and (ii) the product of (a) the product of (y) the C2C Hourly Fuel Rate in effect at the time of the Program Completion Hour purchase and (z) the sum of (I) 1 and (II) the applicable federal excise tax rate and (b) number of number of C2C Program Completion Hours.

3. FEES, ACCOUNTING AND REIMBURSEMENT.

3.1 C2C Program Price.

3.1.1 Payment of the C2C Program Price. An amount equal to the C2C Program Price is due and payable in full on or before the Effective Date and XOJET shall have no obligation under the Program Agreement until such amount is paid in full.
3.1.2 Application of the C2C Program Price. Immediately following the completion of a C2C Program Trip by a C2C Program Customer, an amount equal to the product of (i) the number of Used Program Hours (as defined below) and (ii) the product of (a) the Implied Hourly Rate and (b) the sum of (I) 1 and (II) the applicable federal excise tax rate shall be deducted from the C2C Program Price. A "Used Program Hour" means the actual occupied flight time (wheels up to wheels down) on a C2C Program Trip rounded up to nearest 1/10 hour per segment, plus 1/10 hour for each take-off and each landing; provided that the number of Used Program Hours for a C2C Program Trip under the C2C Program shall be no less than four hours.In the event of any renewal of the C2C Program by the C2C Program Customer pursuant to Section 2.3, the Implied Hourly Rate for the determination of a Used Program Hour associated with the use of Renewal C2C Program Hours shall be the Renewal Implied Hourly Rate. As used herein, "Renewal Implied Hourly Rate" means the Renewal C2C Program Hours Price divided by the number of Renewal C2C Program Hours.

3.2 C2C Fuel Deposit; Fuel Surcharge.

3.2.1 Payment of the C2C Fuel Deposit. An amount equal to the C2C Fuel Deposit is due and payable in full on or before the Effective Date and XOJET shall have no obligation under the Program Agreement until such amount is paid in full. The C2C Fuel Deposit is determined by multiplying the number of C2C Program Hours by the product of (i) the C2C Hourly Fuel Rate and (ii) the sum of (I) 1 and (II) the applicable federal excise tax rate.
3.2.2 C2C Hourly Fuel Rate. The initial C2C Hourly Fuel Rate is set forth in the Program Agreement. In the event of any renewal of this Agreement by the Customer pursuant to Section 2.3 or the purchase of Program Completion Hours by the Customer pursuant to Section 2.4, XOJET shall calculate the C2C Hourly Fuel Rate as of the date of such election based on the Conklin & de Decker Per Gallon Fuel Survey Rate in effect at the time of such determination.
3.2.3 Deductions from the C2C Fuel Deposit. Immediately following the completion of a C2C Program Trip by a C2C Program Customer, an amount equal to the product of (i) the number of Used Program Hours and (ii) the product of (a) the C2C Hourly Fuel Rate (as set forth in the Program Agreement) and (b) the sum of (I) 1 and (II) the applicable federal excise tax shall be deducted from the C2C Fuel Deposit (the "Used Fuel Amount"). In the event of any renewal of the C2C Program by the C2C Program Customer pursuant to Section 2.3, the C2C Hourly Fuel Rate for the calculation of the Used Fuel Amount associated with the use of Renewal C2C Program Hours shall be the Renewal C2C Hourly Fuel Rate.
3.2.4 Fuel Surcharge. In the event the Conklin & de Decker Per Gallon Fuel Survey Rate increases during the term of the Program Agreement, in connection with each C2C Program Trip, XOJET shall charge the C2C Customer a "Fuel Surcharge" determined pursuant to the following formula: the product of (i) the number of Used Program Hours in a C2C Program Trip, and (ii) the product of (y) 445, multiplied by any increase in the Conklin & de Decker Per Gallon Fuel Survey Rate since the Effective Month; provided that no additional charge shall be made until the Conklin & de Decker Per Gallon Fuel Survey Rate changes by $0.05. XOJET shall implement a system for providing C2C Program Customer with reasonable notice of changes to the Conklin & de Decker Fuel Survey Rate. XOJET reserves the right to modify the methodology used to determine the Fuel Surcharge if (a) Conklin & de Decker were to substantially change its methodology of evaluating the cost of fuel in the future, (b) Conklin & de Decker were to cease its operations or fail to provide such information in a timely manner, or (c) the Conklin & de Decker cost estimate were to differ substantially from the actual cost of acquiring fuel in the market. If such an event were to occur, XOJET shall notify C2C Program Customer and use a methodology substantially in conformance with the methodology currently used by Conklin & de Decker as of the Effective Date or such other methodology as is then commonly employed by other similarly situated businesses engaged in the business of managing, maintaining, and chartering aircraft (which shall be described to Customer in the notice). Any applicable Fuel Surcharge will be charged as an Additional Expense as provided in Section 3.3.

3.3 Additional Expenses and Applicable Taxes.

3.3.1 Payment. Charges for C2C Program Customer's Additional Expenses and any Applicable Taxes not included in the C2C Program Price shall be billed to C2C Program Customer following C2C Program Customer's incurrence of such charges in conjunction with C2C Program Customer's use of C2C Program Aircraft and shall be due and payable net 15 days from invoice.
3.3.2 Additional Expenses. The term "Additional Expenses" means the following costs incurred in connection with the provision of services under this Program Agreement: (i) specially-requested catering in excess of standard catering, (ii) $500 to accommodate a request to use an FBO other than the FBO selected by XOJET, (iii) de-icing charges, (iv) in-flight entertainment, (v) telecommunications charges, (vi) ground transportation charges, (vii) additional crew costs, (viii) any ferry charge as a result of a failure to provide Minimum Notice (as provided in Section 1.2 above), (ix) any Cancellation Penalty (as provided in Section 4.3.1 and 4.3.2 below), (x) any Fuel Surcharge (as provided in Section 3.2.4 above) and (xi) any other out of the ordinary charges incurred at the specific request of C2C Program Customer.
3.3.3 Applicable Taxes. "Applicable Taxes" means any and all federal, state, and local taxes, charges, imposts, duties, excise taxes, fuel taxes, and fees, including user fees, relating to C2C Program Customer's use of C2C Program Aircraft, other than federal excise taxes included in the C2C Program Price and the C2C Fuel Deposit. 3.3.4 Federal Excise Tax. All domestic flights are subject to federal excise tax on passenger flights, and a domestic segment tax. The C2C Program Price and the C2C Fuel Deposit are inclusive of federal excise tax, such tax calculated at the federal excise tax rate in effect at the Effective Date. In the event of a change in the federal excise tax rate, XOJET shall charge any increase in the federal excise tax as an Applicable Tax.

3.4 Accounting. XOJET shall provide to C2C Program Customer the following:

3.4.1 Monthly Statements. XOJET shall provide the C2C Program Customer with a monthly statement setting forth a summary of monthly C2C Program Trips, Used Flight Hours, Used Fuel Amount and any remaining balance of the C2C Program Price and C2C Fuel Deposit.
3.4.2 Trip Invoices. XOJET shall issue monthly invoices setting forth amounts owed for any Additional Expenses incurred in connection with the C2C Program Trip completed during the applicable month. Any amounts owed by C2C Program Customer shall be due and payable net 15 days from invoice.

3.5 Form of Payment. All money due to XOJET under this Program Agreement shall be paid by the C2C Program Customer in U.S. Dollars and in immediately available funds to XOJET in the form and manner as XOJET in its sole discretion may instruct C2C Program Customer.
3.6 Late Payment. In the event any amounts due and payable by C2C Program Customer under this Program Agreement are not paid when due, XOJET shall have the right, exercisable in its sole discretion, to deny the use of any C2C Program Hours by a C2C Program Customer until such amounts are paid in full. In addition, XOJET may assess interest at a rate equal to the lesser of 12% per annum or the maximum rate permitted by law, such interest to applied from the date the amounts were due until they are paid in full.
3.7 Disputes. C2C Program Customer must notify XOJET of a disputed charge within 60 days after the date of the statement on which such charge(s) first appeared. After 60 days, the charges are considered valid.
3.8 Damages and Excess Wear and Tear. C2C Program Customer shall indemnify and reimburse XOJET for any and all damages and excess wear and tear to C2C Program Aircraft determined by XOJET to be caused by C2C Program Customer or any of its guests.

4. SCHEDULING

4.1 Scheduling Use of C2C Program Aircraft. All requests by C2C Program Customer to schedule C2C Program Aircraft must come from the Designated Representative and shall be submitted to XOJET by facsimile or e-mail containing such information and on a form specified by XOJET.
4.2 Minimum Notice. XOJET shall use commercially reasonable efforts to provide guaranteed access to C2C Program Aircraft for which Minimum Notice was not provided. XOJET reserves the right to deny C2C Program Aircraft access to C2C Program Customer if the applicable Minimum Notice is not complied with.
4.3 Cancellations and Modifications of Scheduled Itineraries.

4.3.1 C2C Program Customer may cancel or modify any C2C Program Trip without penalty or charge provided the cancellation or change request is provided to XOJET prior to the expiration of the applicable Minimum Notice period. In the event C2C Program Customer cancels or modifies a C2C Program Trip after the expiration of the Minimum Notice period, C2C Program Customer shall pay the sum of (i) any amounts which may be due to XOJET by reason of any partial completion of the original itinerary, including positioning of C2C Program Aircraft, and (ii) the amount payable for one C2C Program Hour charged at the applicable Implied Hourly Rate (as provided in the Program Agreement) for each cancelled C2C Program Trip (the "Cancellation Penalty"); provided, however, that no cancellation fee shall be due for any cancellation or modification after the expiration of the Minimum Notice period if it was due to a Force Majeure (as defined in Section 5.6) or the inability of XOJET to provide the C2C Program Trip.
4.3.2 If C2C Program Customer is more than 90 minutes late for any C2C Program Trip, the C2C Program Trip will be deemed cancelled and C2C Program Customer shall be charged a Cancellation Penalty. If C2C Program Customer subsequently re-schedules the flight, it will be considered a new request for a C2C Program Trip from the time of reschedule.

4.4 C2C Program Customer Terms and Standards. C2C Program Customer acknowledges and agrees to abide by XOJET's Flight Terms and Regulations as in effect from time to time, a copy of which has been made available to C2C Program Customer (and which are also available at www.xojet.com/passengertravelregulations) and which Flight Terms and Regulations are hereby incorporated herein and made a part hereof. XOJET reserves the right to modify its Flight Terms and Regulations from time to time without notice to C2C Program Customer, and such modified Flight Terms and Regulations are hereby incorporated herein and made a part hereof and shall be binding on C2C Program Customer.

5. MISCELLANEOUS.

5.1 Representations and Warranties. Each party represents and warrants to the other that it (i) is duly authorized by all necessary corporate, partnership, or other applicable action to execute, deliver, and perform this Program Agreement, and (ii) will not use C2C Program Aircraft for the purpose of transporting passengers or cargo in air commerce for compensation or hire except in accordance with the provisions of Sections 91.321 and/or 91.501 of the FARs, if applicable, or for any illegal purpose, or for any use prohibited by the insurance maintained on any such C2C Program Aircraft or which may cause the insurance coverage to become invalid or of no force or effect. C2C Program Customer will indemnify and hold harmless XOJET and its directors, officers, agents, and employees from and against any and all loss, cost, damage, injury, or expense that may be incurred by reason of any breach of any of C2C Program Customer's representations or obligations set forth in this Program Agreement or otherwise arising out of C2C Program Customer's gross negligence or willful misconduct; provided, however, C2C Program Customer shall not be liable for the indemnification of any losses, costs, damages, injuries, or expenses arising out of XOJET's gross negligence, willful misconduct, or breach of this Program Agreement.
5.2 Successors and Assigns. This Program Agreement shall not be assignable by C2C Program Customer without prior written consent of XOJET, which consent may be granted or denied in XOJET's sole and absolute discretion. XOJET may assign this Program Agreement without any consent of C2C Program Customer to any entity acquiring substantially all of XOJET's assets. This Program Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
5.3 Notices. Any notice to be given under this Program Agreement shall be sufficient if sent by commercial courier, or facsimile with confirmed receipt, to the intended recipient at the address set forth in the Program Agreement, or such other address as shall have been provided by notice by either party to the other party. Routine notices and requests for reservations may be given by e-mail.
5.4 Governing Law, Venue, Jurisdiction and Alternative Dispute Resolution. This Program Agreement shall be interpreted and governed by the laws of the State of California, without regard to its conflict of laws provisions. The parties agree that any suit relating to this Program Agreement or the respective rights and obligations of the parties hereunder shall be brought exclusively in the courts of the state of California sitting in San Mateo County, California, or in the United States District Court for the Northern District of California, and the parties consent to the exclusive jurisdiction of such courts. The prevailing party (as shall be determined by the court or other adjudicator) shall be entitled to recover its reasonable attorneys' fees and costs of suit or arbitration from the other party in addition to such other relief as may be granted. C2C Program Customer agrees to pay all costs of collection.
5.5 Headings and Captions; Severability. All headings and captions in this Program Agreement are only for the convenience of the parties and do not affect its interpretation, construction, or meaning. In the event that any one or more of the provisions of this Program Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this Program Agreement shall be unimpaired and the invalid, illegal, or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal, and enforceable, comes closest to the intention underlying the invalid, illegal, or unenforceable provision.
5.6 Force Majeure. XOJET shall have no liability for delay or failure to furnish the services when such delay or failure is caused by Force Majeure as defined below. In addition, C2C Program Customer and XOJET agree that when, in the sole discretion of XOJET or the pilots of C2C Program Aircraft, safety may be compromised, then XOJET or the pilots may terminate a flight, refuse to commence a flight, or take other action necessitated by such safety considerations without breach of this Program Agreement or any liability for loss, injury, damage, or delay. For purposes of this Program Agreement, "Force Majeure" means an act of God, strike or lockout or other labor dispute, act of a public enemy, war (declared or undeclared), terrorism, blockade, revolution, civil commotion, fire, any weather-related event affecting safety of flight, flood, earthquake, explosion, governmental restraint, embargo, inability to obtain or delay in obtaining equipment, parts, or transport, inability to obtain or delay in obtaining governmental approvals, permits, licenses, or allocations, and any other cause outside of the complete control of XOJET, whether or not of the kind specifically enumerated above.
5.7 Insurance; Limited Recourse. C2C Program Customer will be named as an additional insured on XOJET's insurance policy. IN ALL CASES AND UNDER ALL CIRCUMSTANCES, C2C PROGRAM CUSTOMER AGREES THAT THE PROCEEDS OF SUCH INSURANCE TO WHICH IT IS ENTITLED SHALL BE DEEMED TO BE ACCEPTED AS C2C PROGRAM CUSTOMER'S SOLE RECOURSE AGAINST XOJET FOR ANY LOSS OR DAMAGE TO C2C PROGRAM CUSTOMER. XOJET SHALL IN NO EVENT BE LIABLE TO C2C PROGRAM CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, LOSS OF USE, VALUE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES AND THE LIKE, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, ANY DELAY OR FAILURE TO FURNISH ANY C2C PROGRAM AIRCRAFT OR CAUSED OR OCCASIONED BY THE PERFORMANCE OR NON PERFORMANCE OF ANY OBLIGATIONS OF XOJET COVERED BY THIS AGREEMENT EVEN IF ANY PARTY HERETO KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITIES OF SUCH DAMAGES.
5.8 Waiver. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (i) no claim or right arising out of this Program Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (ii) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Program Agreement.
5.9 Right to Change Terms and Conditions. XOJET reserves the right to change these Terms and Conditions without notice to C2C Program Customer, and such modified Terms and Conditions are hereby incorporated herein and made a part hereof and shall be binding on C2C Program Customer.