Legal

Preamble

MHS Aviation GmbH (hereinafter “MHS”) specializes in brokering air transport services provided by duly licensed air carriers as service providers, in particular in the field of business aviation. MHS surveys the market and leverages its established market position and commercial relationships in order to present the customer with a carefully selected air carrier and a competitively priced carriage offer.

As a broker of air transport services, MHS does not operate its own aircraft. MHS concludes a brokerage agreement with the customer (hereinafter the “Customer”). The services brokered are flight services provided by air carriers licensed by the German Federal Aviation Office (Luftfahrt-Bundesamt) or other foreign civil aviation authorities (hereinafter the “Air Carrier(s)) to the Customer. The purpose of this Agreement is, on behalf of and with authority from the Customer, to find an Air Carrier with which the Customer shall then conclude a contract of carriage in accordance with the Customer’s requirements (destination, routing, schedule, number of persons, freight, baggage, etc.). The flight is performed under the sole responsibility of the Air Carrier using its own aircraft or aircraft operated by it. The Customer becomes the direct contractual partner of the Air Carrier under whose terms and conditions the details are stipulated. MHS concludes the brokerage agreement on behalf of and as the Customer’s representative.

1 General / Formation of the Agreement

1. The Customer may be a natural or legal person who is themself a passenger, or who acts on behalf of or for the account of a passenger or principal.
2. MHS acts as a broker of flight services which MHS does not itself perform.
3. Customers may submit a non-binding brokerage inquiry to MHS. Based on the data provided by the Customer to MHS in writing, MHS will prepare a non-binding offer at the conditions available at that time.
4. The brokerage agreement is formed upon transmission of a non-binding carriage offer by MHS. The brokerage agreement remains free of charge until the Customer confirms the offer for the contract of carriage with a licensed Air Carrier as brokered by MHS by signing it and returning it to MHS in electronic or postal form. From that point in time, the brokerage triggers the agreed brokerage commission, which is not shown separately but is already included in the offer price.
5. The basis of the brokerage mandate is the data provided by the Customer under § 1(3) of these General Terms regarding the desired carriage. As long as no binding brokerage has taken place, i.e., the brokered offer for the contract of carriage has not yet been confirmed by the Customer in writing and returned to MHS pursuant to § 1(4), changes to the data are free of charge for the Customer. Deviations after written confirmation of acceptance and return to MHS pursuant to § 1(4), e.g., due to changes to the flight or special requests, require MHS’s express consent, since this constitutes a subsequent change to the brokerage agreement and, ultimately, the contract of carriage between the Customer and the Air Carrier, and may result in the conclusion of new contracts. MHS will use best efforts to implement the Customer’s change requests but assumes no guarantee or liability for doing so. Any costs arising from the change, as well as any altered price for the carriage, shall be borne by the Customer.

2 Duties and Obligations of MHS

1. The Customer instructs MHS to obtain, based on the Customer’s specifications, non-binding offers from one or more suitable, independently operating and duly licensed Air Carriers for a flight inquiry and to present them to the Customer. By deciding to accept an offer, the Customer agrees that MHS may conclude, on behalf of the Customer, a contract of carriage with the chosen Air Carrier for the provision of the aircraft with crew. The Customer confirms to be bound by the contract of carriage and undertakes to fulfill all obligations assumed thereunder.
2. Receipt by MHS of the Customer’s signed acceptance of the carriage offer pursuant to § 1(4) shall be acknowledged by MHS within two (2) business days after receipt of the signed acceptance (order confirmation). The Customer will receive the invoice from MHS together with the acknowledgment.
3. MHS concludes the contract of carriage with the licensed Air Carrier in the name and on behalf of the Customer. The Customer authorizes MHS to negotiate such changes to the contract of carriage as MHS deems appropriate and to conclude the contract of carriage. The Customer acknowledges that MHS is not required to negotiate terms that do not comply with the Air Carrier’s general terms and conditions. MHS is not responsible if the Air Carrier breaches any obligations relating to the flight under the contract of carriage which MHS has concluded with the Air Carrier in the name and on behalf of the Customer in accordance with its mandate.
4. By accepting the offer, the Customer agrees that carriage will be performed by the Air Carrier and that the Air Carrier bears exclusive responsibility for the airworthiness and maintenance of the aircraft, for the crew’s fitness to fly, and for operational conduct of the flight. The Customer understands and agrees that the aircraft crew are employees and vicarious agents of the Air Carrier, take instructions solely from the Air Carrier, and are subject to its direction. The Customer acknowledges that MHS has neither authority nor legal ability to instruct the crews. Any agreement to the contrary requires the Air Carrier’s written consent.
5. If at any time prior to the scheduled departure the aircraft is unavailable or unserviceable, MHS will use reasonable efforts to procure a substitute aircraft of the same category. The same applies if the Air Carrier becomes insolvent and ceases operations before the scheduled departure. If no equivalent substitute can be found by MHS or the Customer does not accept the substitute, MHS is entitled to rescind the brokerage agreement.
6. The Customer acknowledges that the legal relationship for the flight and its performance exists solely between the Customer and the Air Carrier. MHS expressly points out that the terms and conditions and liability limitations used by the Air Carrier in the contract of carriage concluded by MHS on behalf of the Customer apply.
7. The Customer may take legal action related to the provision of the aircraft and performance of the contract of carriage only against the Air Carrier, not against MHS. If, for any reason (including insolvency or financial collapse affecting the Air Carrier), the Air Carrier is unable to perform the services agreed with the Customer, remedies may only be pursued against the Air Carrier.

3 Duties and Obligations of the Customer

1. The Customer undertakes to pay the remuneration agreed with MHS for the brokerage of the flight service and for the flight service itself in accordance with § 5 of these General Terms.
2. The Customer undertakes to provide MHS with all passenger data relating to the Customer, including those of any co-passengers and/or principals, as soon as possible after conclusion of the Agreement. Passenger data include, in addition to first and last name(s) and date of birth, identification data such as ID card or passport number, validity, place of birth, date of issue, and nationality. The data must be received by MHS no later than seventy-two (72) hours prior to scheduled departure. If additional data are required for the booked routing—for example to obtain overflight permits or landing permissions—the Customer undertakes to provide such data for themself and/or co-passengers and/or principals to MHS promptly enough to ensure the Air Carrier can perform the booked flight without delay.
3. The Customer shall ensure that all passengers, their baggage, and any cargo comply with all applicable laws and regulations of the Federal Republic of Germany and/or any other state of departure, transit or arrival, and with all requirements of the Air Carrier, including any laws and regulations applicable to the Air Carrier’s aircraft operation. The Customer further undertakes to proactively inform MHS, in adequate lead time, of the amount including size, volume, and weight of anticipated baggage. Only with prior information can it be ensured that all baggage can be carried.
4. Information on applicable entry and exit requirements can be obtained by the Customer and passengers from domestic or foreign embassies, the Federal Foreign Office, or other competent authorities. All travel documents in the form required by embassies, the Federal Foreign Office, or other authorities, and in individual cases by the Air Carrier or MHS, must be provided by the Customer as soon as possible prior to the scheduled departure. The Customer shall ensure that the requirements for duly completed travel documents are communicated to all passengers in advance and provided in accordance with the applicable rules so that all passengers and carriers can meet such requirements. This includes in particular, but not limited to, documents entitling the passenger to enter and exit the destination country and to remain there in accordance with legal provisions (e.g., identification, passport, vaccination certificates, visa, residence permits, health requirements).

   a) If a passenger is refused entry due to incorrect data provided by them or missing documents, MHS assumes no liability and no responsibility for any additional costs.

   b) By submitting passenger data, the Customer warrants that no passengers are sanctioned persons and that no applicable sanctions are violated.

   c) The Customer further warrants that the aircraft is not chartered by a Russian national, a resident of Russia (including dual citizenship), a company incorporated in Russia, or a company having its principal place of business in Russia.

5. The Customer is responsible for fulfilling its obligations under both the contract of carriage and the brokerage agreement between MHS and the Customer, including all annexes, schedules and addenda. This also applies where the Customer must have obligations performed by third parties.
6. To the extent MHS fulfills its obligations under this brokerage agreement, the Customer shall indemnify and hold MHS harmless upon first demand from any damages and liabilities that may arise for MHS as the Customer’s representative and within the scope of its authority in connection with this brokerage agreement.
7. The Customer acknowledges that, in the interest of ensuring the safety of the aircraft, the passengers, the crew or the cargo, the pilot-in-command makes operational decisions at their sole and absolute discretion. The Customer agrees that all decisions of the pilot-in-command are binding upon MHS, the Customer, all other parties involved, and the passengers. The Customer is responsible if their passengers fail to comply with such decisions and instructions. MHS is not liable to the Customer in respect of any decisions of the pilot-in-command and their consequences, including any adverse effects on MHS’s obligations under the brokerage agreement.
8. The Customer
   a) informs MHS as early as possible of any existing medical limitations and/or restrictions affecting passengers; and
   b) ensures that all passengers are familiar with the health regulations of their destination and transit countries so that passengers can obtain required vaccinations and ensure they carry all necessary vaccination documentation.
9. Where required, the Customer shall inform themself prior to departure of current dangerous goods regulations and any restrictions applicable to them and/or their passengers and/or principals. MHS will provide current dangerous goods regulations to the Customer upon request. The Customer may also consult dangerous goods rules on the IATA or ICAO websites. A non-binding overview is available on the German Federal Aviation Office’s website at: https://www.lba.de/DE/Luftfahrtunternehmen/Gefahrgut/Passagierinformation/Passagierinformation_node.html (accessed 12.04.2022)

4 Loading and Check-in

1. The Customer shall ensure that passengers and their baggage as well as any cargo are present at the designated check-in point at the airport of departure no later than the check-in time and that all passengers possess all travel documents and the required IDs, visas, or other documents demanded by the authorities of the states of departure, transit, and arrival for the flight(s).
2. If the flight departs late or must depart late due to a breach of these General Terms or other actions or omissions by the Customer, a person attributable to the Customer, or a passenger after the scheduled departure time, MHS may cancel this Agreement, the executing Air Carrier may cancel the contract of carriage, or the affected flight under this brokerage agreement or contract of carriage, and cancellation fees shall apply.

5 Charter Price and Payments

1. The applicable carriage price is that stated in the offer sent by MHS to the Customer. The carriage price is due and payable immediately upon receipt of invoice, but no later than seven (7) days prior to the first flight date, unless a different payment term is specified on the invoice. The applicable statutory VAT will be shown separately by MHS or explicitly noted in the offer and invoice.
2. The carriage prices offered by MHS to the Customer in the respective offer include all flight-operational ancillary costs for the routing requested by the Customer, positioning flights, landing fees during normal airport opening hours, applicable taxes and charges, unavoidable surcharges known at the time of offer/contract creation, as well as the brokerage commission, which is not shown separately. These costs constitute the base costs for performing the booked flight. VIP catering appropriate to the time of day and feasible for the booked aircraft type is also included.
3. All other costs not listed in § 5(2) of these General Terms—by way of example but not limited to—license fees, handling charges, aircraft de-icing, ground transportation, fees, waivers, baggage screening fees, security charges, use of onboard communications such as satellite phone or Internet (including Wi-Fi), increased insurance premiums charged by Air Carriers for crisis areas, customs, airport and passenger taxes, transfers to and from airports, ground accommodation and cabin service, shall be borne exclusively by the Customer unless otherwise agreed in writing. The Customer shall hold MHS or the Air Carrier harmless from such costs and, to the extent already paid by the Air Carrier or by MHS, reimburse them upon first demand.
   a) Should any of the costs not included in the base costs arise in connection with the Customer’s flight, MHS will endeavor to communicate the actual additional costs to the Customer as soon as possible and invoice them promptly.

   b) The Customer shall settle these additional costs within fourteen (14) days of invoicing.

4. The carriage price may change due to surcharges for fuel, insurance, currency, or other markups that the Air Carrier may charge under the contract of carriage. If the Customer is a business within the meaning of § 14 BGB, the Customer agrees to be bound by such changes.
5. The Customer shall pay MHS all additional amounts agreed between them or that become necessary as a result of the Customer’s instructions or lack of instructions, inaccuracies in information or documents provided by the Customer or a passenger to MHS or the Air Carrier, or for any other reason within the Customer’s responsibility.
6. The carriage price and all fees are exclusive of applicable VAT and general consumption taxes, which shall be stated explicitly.
7. The Customer is not entitled to set-off, unless the Customer’s counterclaim is undisputed or has been finally adjudicated. A right to refuse performance due to alleged claims from other contracts or legal relationships is excluded. Timely payment of all amounts due is a primary obligation under this Agreement.

6 Licenses and International Regulations

1. All flights are subject to the grant and maintenance of all licenses and permits required for performance of the flight by the contracted Air Carrier.
2. If, in MHS’s reasonable assessment, licenses, permits or authorizations required for performance of the flight are unlikely to be granted in time or maintained, MHS may cancel this Agreement without further liability to the Customer or third parties. MHS is only obliged to refund to the Customer amounts paid, less
   a) a reasonable amount for costs and administration; and
   b) any non-refundable amounts payable to the Air Carrier under the contract of carriage.

7 Changes, Delays, Diversions

1. MHS assumes no responsibility for delays in departures or arrivals unless these are the direct result of breaches by MHS of its obligations under this Agreement. MHS cannot be held responsible for circumstances beyond its control, such as ATC issues, delays or staff shortages, strikes, war, pandemics, adverse weather, or factors affecting the aircraft on a previous flight. Nor is MHS responsible where the Air Carrier is liable under specific laws or regulations.
2. In the event of an unscheduled diversion, the flight or the affected portion shall be deemed completed upon landing at the diversion airport. MHS bears no responsibility in relation to diversions or their impact on the Customer or passengers.
3. If, at the Customer’s request, MHS arranges the passengers’ transfer to their ultimate destination by alternative means of transport, MHS acts as the Customer’s agent with regard to these services and shall under no circumstances be liable for any loss arising from such arrangements or transports. The Customer shall indemnify MHS for such costs. All costs of such transport shall be for the Customer’s account.
4. If the Customer considers it necessary to cancel or amend this brokerage agreement or the contract of carriage in whole or in part, the Customer shall immediately notify MHS in writing. The applicable cancellation fees are set out in § 8(1) below unless different fees result from the order confirmation.
5. MHS shall not be liable for costs arising where, in the pilot-in-command’s discretion, it is necessary to divert, interrupt or terminate a flight to remove a passenger whose behavior or mental/physical condition causes inconvenience or nuisance to other passengers, or presents a danger or risk to the passenger, other passengers, or property. To the extent MHS is held liable for such costs, the Customer shall indemnify MHS.

8 Cancellation / Termination

1. The Customer may cancel this Agreement at any time prior to departure by written notice to MHS. In the event of cancellation, the Customer shall pay the cancellation fees listed below unless different fees result from the order confirmation.
   a) Cancellation any time after signed confirmation: 10% of the charter price stated on the invoice, at least EUR 1,000.00.
   b) Cancellation at least 7 days before departure: 25% of the charter price
   c) Cancellation at least 72 hours before departure: 50% of the charter price stated on the invoice, at least EUR 1,500.00.
   d) Cancellation at least 24 hours before departure: 75% of the charter price stated on the invoice, at least EUR 2,000.00.
   e) Cancellation in less than 24 hours before departure: 100% of the charter price stated on the invoice.
   f) If the aircraft has already been positioned or costs have already been incurred, the current costs will be charged in addition, without MHS being obligated to provide proof.
2. Cancellation in favor of another broker or for the purpose of direct booking with another Air Carrier is not permitted.
3. MHS has the right to set off funds received from the Customer against these cancellation fees. To the extent additional amounts are payable by the Customer to MHS or the Air Carrier, the Customer agrees to pay such amounts upon MHS’s request in full. For purposes of calculating the cancellation time, the date of receipt of the written notice by MHS applies. If receipt does not occur on a business day—Saturdays are not business days—the notice is deemed received on the next business day. If cancellation is sent by fax or email, it must be received by MHS by 18:00 hours German local time; later receipt shall be deemed received on the next business day.
4. MHS may terminate this Agreement with immediate effect by written notice if:
   a) the Customer suspends or ceases, or threatens to suspend or cease, performance of its obligations or a material part thereof under this Agreement or the contract of carriage;
   b) in MHS’s reasonable assessment, permits or approvals required for the flight are unlikely to be obtained in due time or, if obtained, unlikely to be maintained;
   c) the Customer or any partner of the Customer suspends payments or threatens to do so;
   d) after conclusion of this Agreement it becomes apparent that the Customer or any partner will no longer be able to fulfill its obligations;
   e) insolvency or administration proceedings are initiated under the laws of the Customer’s home country, subjecting the Customer’s assets and business to the control or supervision of a court or a court-appointed or statutory officer for the purpose of reorganization or liquidation or for restructuring, suspension or repayment of its debts;
   f) an application is filed with a court for, or an order indicates the intended appointment of, an administrator, or an administrator is appointed over the Customer’s assets or any part thereof.
5. If MHS terminates this Agreement pursuant to § 8(4), the Customer shall pay MHS the cancellation fees in accordance with the order confirmation. If MHS cancels one or more flights or a leg, the Customer shall pay MHS the proportionate cancellation fees.

9 Force Majeure

1. MHS shall not be liable for delay or any non-performance or defective performance of this Agreement if caused by an event beyond MHS’s control, including, without limitation: force majeure, explosions, revolutions, terrorist acts, hijackings, riots, disturbances, war, national or local emergencies, administrative acts, lockouts, strikes, labor disputes, fire, lightning, flooding, embargoes, quarantines, pandemics, demonstrations, vandalism, seizure of an aircraft or cargo, acts or omissions of third parties, lack of aircraft availability or ability to perform a flight due to unforeseeable events such as chain reactions on financial markets, crises, weather conditions, electronic notice boards, airworthiness requirements, aircraft accidents or accidents involving aircraft parts, or governmental measures.
2. Once an increased risk of war, terrorist acts, hijacking, or civil unrest arises, any services to be provided by MHS that are covered by insurance may at any time be subject to restrictions or changes imposed on MHS by insurers for the flight.

10 Limitation of Liability

1. This Agreement is not a contract of carriage. MHS is not a carrier and does not act as such in the fulfillment of its obligations under this Agreement. Nor shall MHS’s activities with respect to the carriage performed for the charterer by the Air Carrier be considered those of a carrier. Neither acceptance nor performance by MHS of obligations under this Agreement shall impose on MHS the responsibility or duties of an air carrier and/or aircraft operator.
2. Upon conclusion of this Agreement, MHS acts neither as obligor nor as a licensed transport undertaking in relation to the provision of flight services. Nor is MHS an agent of the Air Carrier.

11 Warranty and Liability

1. If MHS is liable for damages, such liability for simple negligence arises only where life, body or health or essential contractual obligations (cardinal obligations) are violated. In this respect, MHS is also liable for intentional or negligent breaches by its legal representatives or vicarious agents. Otherwise, liability for negligence is excluded.
2. Except in cases of intent or gross negligence, there is no liability for incorrect information, implied warranties, nor for contractual or other obligations of any kind. With the exception of intentional or grossly negligent breaches, this exclusion also applies to damages caused by employees, representatives, contractors, and other service providers engaged by MHS or attributable third parties.
3. Except in cases of intentional or grossly negligent breach, liability is limited in amount to 75% of the net total price, or in the case of ancillary services to a maximum of 50% of the net total price.
4. MHS assumes no liability of any kind—whether contractual, tortious, or otherwise—for acts, omissions, or defaults, whether negligent or otherwise, of third-party service providers over whom MHS has no direct control; this includes, without limitation, the Air Carrier, handling agents, caterers, and ground transportation.
5. MHS assumes no liability to the Customer for damages, costs, expenses, or other claims for compensation arising from:
   a) incorrect information provided to MHS or the Air Carrier by the Customer or a passenger; or
   b) incomplete, incorrect, inaccurate, unclear, out-of-sequence, or improperly formatted information or instructions given to MHS; or
   c) late or non-arrival, or any other default by the Customer or any of its passengers.
6. MHS gives no warranty, guarantee, or similar assurance regarding the quality, financial strength or solvency, fitness for purpose or other suitability of the Air Carrier or third-party service providers. MHS is only obliged, in the sense of the Preamble, to select and broker duly licensed Air Carriers with due care. MHS shall not be liable to the Customer, nor be deemed in default under this Agreement, for delayed performance or non-performance of its obligations where such delay or non-performance is due to reasons beyond MHS’s control. The Customer agrees to indemnify MHS, its employees, staff and representatives or other attributable persons upon first demand against all damages, costs, claims and expenses arising from:
   a) any breach of this Agreement by the Customer;
   b) any act or omission of the Customer, any passenger, or the Customer’s employees, staff, or representatives or other attributable persons;
   c) any claim, action or proceeding by a third party against MHS caused or co-caused by the Customer, a passenger, or the Customer’s employees, staff or representatives or other attributable persons. Except in cases of intentional fraud, MHS assumes no liability for statements or representations not recorded in the order confirmation or otherwise in writing and signed by an MHS employee authorized to do so.
7. All other warranties or conditions of a statutory or other nature (including, without limitation, as to quality and fitness for purpose) are hereby excluded to the extent permitted by law.

12 Entire Agreement, Written Form, Severability, Salvatory Clause

1. These General Terms and the order confirmation constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings between the parties, whether written or oral. Anything beyond the foregoing—whether expressly agreed or not, whether statutory or otherwise—is excluded to the extent permitted by law.
2. Amendments to this Agreement are valid only if set forth in writing as amendments and signed by the parties or their duly authorized representatives.
3. Any notice of termination by one party to the other must be in writing and addressed to that party’s registered office or principal place of business, or to such address as has been duly notified.
4. If any provision (or part thereof) of these General Terms is found by a court or other competent authority to be invalid, illegal or unenforceable, that provision or part shall be deemed not to form part of this Agreement. The validity and enforceability of the remaining provisions shall not be affected.

13 Governing Law and Jurisdiction

1. This Agreement is governed by and construed in accordance with the laws of the Federal Republic of Germany.
2. If the Customer is a merchant within the meaning of § 310(1) BGB, a legal entity under public law, a special fund under public law, or has no general place of jurisdiction in Germany, the parties irrevocably submit any claims or disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Regional Court (Landgericht) of Munich.
3. Should any clause of this Agreement or these terms be invalid for any reason, this shall not affect the validity of the remaining clauses.