XOJET Preferred Access™ Program Terms and Conditions

1. SERVICE.

1.1 Service. XOJET shall provide Services as described in Part One, either directly or through an Other Air Carrier in accordance with the provisions set forth herein.
1.2 Trip Quote. XOJET shall provide to the Designated Representative for each flight or group of flights (collectively referred to as a “Trip”) a written quote (the “Trip Quote”) setting forth the cost of the Trip (the “Trip Cost”) and the estimated Trip Expenses (defined in Section 3.2 below). The Trip Cost shall be priced in the discretion of XOJET on either a total Trip or an hourly basis with an estimate of the number of Flight Service Hours (defined below) for the Trip. The Trip Expenses set forth in the Trip Quote shall represent an estimate of (i) the cost of the Applicable Taxes (as defined in Section 3.2.2), and (ii) the Incidental Expenses (as defined in Section 3.2.1) (including reasonable detail of any anticipated charges) for the Trip. As used herein, “Flight Service Hours” are determined based on the flight time (rounded up to the nearest one tenth of an hour) during which the Customer, or another person designated by the Customer, actually occupies a Charter Aircraft, and shall be calculated from the point of take off to the point of landing for each flight segment, plus six minutes (one tenth of an hour) each of taxi time prior to each departure and after each landing in an occupied leg without any addition for repositioning.
1.3 Guaranteed Call Minimum Notice; Cancellation. As one of the conditions to the Customer’s use of a Guaranteed Call, Customer must provide XOJET with forty-eight hours prior notice (to the requested departure time of the first Flight Service segment) “Guaranteed Call Minimum Notice Period”)..

2. TERM AND TERMINATION.

2.1 Term. The Term is set forth in Part One. At any time during the Term, Customer or XOJET may, upon not less than 30 days prior written notice to the other party, terminate this Agreement.
2.2 Termination. Either party may terminate this Agreement immediately upon written notice if the other party is in breach of this Agreement and such breach continues uncured for at least seven days after written notice of such breach is given by the non-breaching party in accordance with this Agreement.
2.3 Effect of Termination. In the event this Agreement is terminated by either party pursuant to this Section 2.1 or by Customer pursuant to Section 2.2, an amount equal to the current total of unused Program Deposits shall be refunded to Customer not more than 10 business days after the later of the effective date of such termination or the 10th business day following the date of the completion of the last trip segment scheduled to be flown by the Customer if after the effective date of termination. In the event of a termination by XOJET other than for reasons provided in Section 2.2 the current total of unused Bonus Credits may be applied toward payment of Services for the period of one year after the effective date of the termination, at which time the Bonus Credits will expire. Any Services provided following the termination of this Agreement in exchange for unused Bonus Credits shall be provided under the same terms and conditions of this Agreement.
2.4 Customer Termination Fee. Customer Termination Fee. If Customer terminates this Agreement pursuant to Section 2.1 prior to taking Trips resulting in payments to XOJET of at least $50,000 in the aggregate, or if XOJET terminates this Agreement pursuant to Section 2.2, XOJET shall be entitled to retain an amount equal to $5,000 as a termination fee (the “Customer Termination Fee”). The Customer Termination Fee is for the purpose of offsetting certain of XOJET’s administrative and other costs in terminating Customer’s participation in the XOJET Preferred Access Program. Customer agrees that the amount of the Customer Termination Fee is reasonable, and that it is in addition to all other remedies to which XOJET may be entitled based on any breach of this Agreement by Customer. Any amount remaining in the Program Account (as determined pursuant to Section 2.1) less the Customer Termination Fee shall be refunded to Customer as provided in Section 2.1.
2.5 Survival of Obligations. All obligations of Customer or XOJET that accrue or are owed to XOJET or Customer, respectively, at or prior to any termination of this Agreement, and any other obligations which by their terms survive termination of this Agreement, shall survive such termination.

3. FEES AND REIMBURSEMENT.

3.1 Program Account. Customer’s Program Account Balance shall be calculated as set forth in Part One. Immediately following the completion of a Trip (or if a Trip involves multiple flight segments upon the completion of each flight segment), XOJET shall deduct the Trip Cost and Trip Expenses from the Customer’s Program Account. Trip Expenses owed by Customer to XOJET will be based on the actual costs incurred in connection with a Trip subject to the terms and conditions of the Trip Quote and as such may differ from the dollar amount indicated on the Trip Quote. Trip Costs owed by a Customer when quoted on a per Trip basis will be equal to the amount set forth on the Trip Quote, and when quoted on an hourly basis will be determined by multiplying the actual Flight Service Hours of the Trip by the hourly rate set forth in the Trip Quote, or in the case of a Guaranteed Call at the Guaranteed Call Hourly Rate.
3.2 Trip Expenses. The term "Trip Expenses" includes any applicable Incidental Expenses and Applicable Taxes.

3.2.1 Incidental Expenses. The term "Incidental Expenses" includes, to the extent not otherwise set forth in the Trip Quote, the following costs incurred by XOJET or Other Aircraft Carrier in connection with the provision of Services: (i) specially requested catering in excess of standard catering, (ii) request to use an FBO other than the one selected by XOJET, (iii) de-icing charges, (iv) international fees, (v) in-flight entertainment, (vi) ground transportation charges, (vii) additional crew costs, and (viii) any other out of the ordinary charges incurred at the specific request of Customer.
3.2.2 Applicable Taxes. "Applicable Taxes" are any and all federal, state, and local taxes, charges, imposts, duties, excise taxes, fuel taxes, and fees, including user fees, relating to Customer’s use of a Charter Aircraft. All domestic Trips are subject to federal excise tax on passenger flights, and a domestic segment tax. Trips with any point of departure or landing outside the United States are subject to a federal departure tax.

3.3 Monthly Statement. XOJET shall issue a monthly statement showing the Customer’s Program Account Balance at the end of each month during the Term and detail on all account activity for the preceding month. Such monthly statement shall be issued on or before the 15th of the following month.
3.4 Disputes. Customer must notify XOJET of a disputed charge within 60 days after the date of the invoice or statement on which such charge(s) first appeared. After 60 days, the charges are considered valid.
3.5 Damages and Excess Wear and Tear. Customer shall indemnify and reimburse XOJET or an Other Air Carrier, as the case may be, for any and all damages and excess wear and tear to a Charter Aircraft determined by XOJET to be caused by Customer or any of its guests.

4. SCHEDULING.

4.1 Scheduling Use of Charter Aircraft. All requests by Customer to schedule a Trip 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 (each, a “Trip Request”). XOJET shall issue a Trip Request in response a Trip Request. An issued Trip Quote shall not constitute a firm commitment by any party and XOJET shall not provide any Services except pursuant to a Firm Quote (as defined below). A Trip Quote shall be converted to a Firm Quote by written acceptance, transmitted by the Designated Representative, of the applicable Trip Quote (a Trip Quote so converted, a “Firm Quote” and a Trip Quote for a Guaranteed Call so converted, a “Guaranteed Call Firm Quote”).
4.2 Cancellations and Modifications of Scheduled Itineraries.

4.2.1 Non-Guaranteed Call Flight Service. Cancellation and modification terms will be set forth in the Trip Quote and Firm Quote.
4.2.2 Guaranteed Call Flight Service. Customer may cancel or modify any Guaranteed Call Firm Quote without penalty or charge provided the cancellation or change request is provided to XOJET prior to the expiration of the Guaranteed Call Minimum Notice Period. In the event Customer cancels or modifies a Flight Service subject to a Guaranteed Call Firm Quote after the expiration of the Guaranteed Call Minimum Notice Period, 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 Charter Aircraft, and (ii) the amount payable for one Flight Service Hour at the Guaranteed Call Hourly Rate for each cancelled flight segment (the “Cancellation Penalty”); provided, however, that no Cancellation Penalty shall be due for any cancellation or modification after the expiration of the Minimum Notice period if it was due to Force Majeure (as defined in Section 5.6) or the inability of XOJET to provide a Charter Aircraft.

4.3 Passenger Regulations. Customer acknowledges and agrees to abide by the Passenger Regulations in effect from time to time. The Passenger Regulations in effect as of the Effective Date are as set forth in Part Three. XOJET reserves the right to modify its Passenger Terms and Conditions from time to time without notice to Customer, and such modified Passenger Regulations are hereby incorporated in the Agreement and made a part thereof and shall be binding on Customer. XOJET shall also provide a copy of the applicable Passenger Regulations with each Trip Quote, Firm Quote and Guaranteed Call Firm Quote.

5. INSURANCE.

5.1 Coverage. XOJET shall arrange for and obtain, or cause each Other Air Carrier to arrange for and obtain, liability insurance for bodily injury and property damage related to each Charter Aircraft and its operations in an amount not less than $200,000,000 Combined Single Limit liability coverage naming Customer and each of its shareholders, principals, members, partners, officers, directors, employees, agents, and their respective guests and affiliates and XOJET as additional insureds (“Additional Insureds”). The insurance required pursuant to this Agreement shall be maintained by XOJET, at its expense, in full force and effect throughout the Term.
5.2 Terms. The policies shall contain a severability of interest clause, a waiver of subrogation on behalf of Customer, and a breach of warranty endorsement in favor of Customer whereby the insurance coverage required hereby shall not be impaired or invalidated by a breach or violation by XOJET or any other person of any representations, warranties, declarations, or conditions contained in such policies. The policies shall be primary insurance in place instead of any insurance maintained by Customer. No insurance of XOJET shall be co-insurance, contributing insurance, or primary insurance with Customer. Customer shall be permitted to obtain, at Customer’s expense, contingent liability insurance separate from the insurance coverage provided by XOJET hereunder.
5.3 Copies of Policies. Upon request, XOJET shall provide Customer with certificates of insurance evidencing the coverage described in Section 5.1. Such certificates shall be signed by an authorized officer of the insurer and shall provide that not less than 30 days (or such shorter period as may be customary) prior written notice of cancellation is to be given to Customer prior to cancellation or non-renewal, and shall state that such insurance policies are primary and non-contributing to any insurance maintained by Customer.

6. MISCELLANEOUS.

6.1 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 Agreement, and (ii) will not use a Charter 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 Charter Aircraft or which may cause the insurance coverage to become invalid or of no force or effect.
6.2 Successors and Assigns. This Agreement shall not be assignable by Customer without prior written consent of XOJET, which consent may be granted or denied in XOJET’s sole and absolute discretion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
6.3 Notices. Any notice to be given under this 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 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.
6.4 Governing Law, Venue, Jurisdiction and Alternative Dispute Resolution. This 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 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. Customer agrees to pay all costs of collection.
6.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Each party may transmit its signature by facsimile or e-mail, and any such signature shall have the same force and effect as an original signature.
6.6 Headings and Captions; Severability. All headings and captions in this 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 Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this 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.
6.7 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, Customer and XOJET agree that when, in the sole discretion of XOJET, an Other Air Carrier or the pilots of a Charter Aircraft, safety may be compromised, then XOJET, the Other Air Carrier 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 Agreement or any liability for loss, injury, damage, or delay. For purposes of this 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 or an Other Air Carrier, as applicable, whether or not of the kind specifically enumerated above.
6.8 Confidentiality. Client and XOJET agree (on behalf of themselves and each of their respective affiliates, shareholders, members, principals, partners, directors, officers, employees, agents, and representatives) to keep confidential the terms of this Agreement and any nonpublic information supplied to it by the other party pursuant to this Agreement, provided that nothing herein shall limit the disclosure of any such information (i) to the extent required by statute, rule, regulation, or judicial process, (ii) to counsel for either party, (iii) to examiners, auditors, or accountants of either party, (iv) in connection with any litigation to which either party is a party relating to this Agreement, (v) which has been publicly disclosed by the party that supplied the information, (vi) to any permitted transferee (or prospective transferee) so long as such transferee or prospective transferee has agreed in writing to be bound by the provisions of this Section 6.8 or (vii) to any member or direct or indirect investor of Client who is not engaged in any competitive business activity with XOJET and who agrees to be bound by the confidentiality obligations set forth herein. Each party agrees that a breach of this Section 6.8 may cause the non-breaching party irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that the non-breaching party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation of information and for such other relief as the non-breaching party shall deem appropriate without the necessity of proving actual damages and without the necessity of posting a bond or other security. Such rights of the non-breaching party shall be in addition to the remedies otherwise available to the non-breaching party at law or in equity.