MEMBERSHIP AGREEMENT
Last Updated: September 16, 2022
AIRACER MEMBERSHIP: This Membership Agreement (this “Agreement”) with Airacer Inc (“Airacer”) governs the Jet Card membership services provided by Airacer (the “Services”). The Services provided shall be pursuant to the membership subscription selected by you and described in further detail in Exhibit A attached to this Agreement. Flight services and ground transportation is provided via third-party Operators (“Operators”) and by participating in any such third-party services you may also be bound by such Operators’ terms and conditions.
TERM: The term of your Agreement will begin on the Membership Start Date, set forth above, and shall continue until the date that the Agreement expires or is earlier terminated, subject to the early termination of this Agreement as provided herein. The expiration date of this Agreement, subject to renewal or extension, shall be for the duration of the Subscription Period set forth above. The Agreement will automatically renew for the same Subscription Period Term stated above, unless a thirty (30) day written notice of cancellation is provided prior to the commencement of the renewal term.
PAYMENTS: All payments shall be automatically drawn by Airacer in accordance with the Payment Frequency set forth above. The payments shall be made by either the Member or any Payment Responsible Party stated above. The Responsible Party shall complete an ACH/Payment Authorization Form provided by Airacer.
CANCELLATION: Unless otherwise specified in this Agreement, and effective no earlier than the expiration of the Initial Term End Date, Member may cancel Member’s membership and terminate this Agreement by providing written notice to Airacer. Cancellation received between the first and the last day of the month will be effective upon the next month’s billing cycle. Member shall email such cancellation notice to marketing@airacer.com. Member’s account must be current and in good standing before Airacer will process any such request to cancel. You acknowledge and agree that you will forfeit any prepaid fees made prior to the cancellation date. All fees paid are non-refundable.
PAYMENT DEFAULT: If Member fails to pay any amount owed by Member (or Responsible Party) fails to pay Member’s monthly dues per the Agreement) when due under this Agreement, as applicable, then Airacer shall be entitled, at any time in its sole discretion, to suspend or cancel Member’s membership and terminate this Agreement and to require the Responsible Party to immediately pay all past due balances owed. Suspension or cancellation shall not relieve the Responsible Party from the obligation to pay any unpaid balances owed. Any payments owing to Airacer that are not received when due shall bear interest at the highest rate permitted by law. Failure to pay any amounts owed to Airacer when due, the responsible party shall pay all costs and expenses of collection incurred by Airacer, including reasonable attorney’s fees and expenses.
REFUSAL OF SERVICES: You acknowledge and agree that Operators providing services to Member, may refuse to transport or remove a Member/passenger from an aircraft or vehicle for any reason, including, but not limited to: (a) failure to comply with this Agreement or Operator’s instruction in general; (b) disorderly, disruptive, abusive, threatening, or conduct; (c) appearance that a passenger is intoxicated or under the influence of alcohol drugs; or (d) the appearance that a passenger is engaged in illegal activity.
THIRD PARTY SERVICES: Airacer does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services, and Airacer shall not be a party to or in any way monitor any transaction between a Member and third-party providers of products or services.
DISCLAIMER OF WARRANTIES: EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO PROVIDER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED BY AIRACER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER ISSUES. YOU ACKNOWLEDGE AND AGREE THAT AIRACER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH ISSUES. Certain jurisdictions do not allow the exclusion and limitations of certain implied warranties, therefore, some of the above exclusions may not apply to you. This Agreement gives Members specific legal rights, and Members may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement shall not apply to the extent prohibited by applicable law.
LIMITATION OF LIABILITY: EXCEPT IN CASES OF AIRACER’S GROSS NEGLIGENCE, AIRACER IS NOT RESPONSIBLE OR LIABLE TO MEMBER FOR ANY LOSS, INJURY, EXPENSE, DAMAGE TO PROPERTY OR PERSONAL SICKNESS, INJURY, OR DEATH WHICH RESULTS FROM OR DURING A FLIGHT, OR ANY OTHER THIRD-PARTY SERVICE. NOTWITHSTANDING THE FOREGOING, AIRACER DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A DIRECT AIR CARRIER. AIRACER OFFERS INFORMATION AND A METHOD TO OBTAIN THIRD-PARTY TRANSPORTATION SERVICES BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO MEMBER BY SUCH THIRD PARTIES. AIRACER MAY INTRODUCE MEMBER TO THIRD-PARTY TRANSPORTATION PROVIDERS TO PROVIDE MEMBER TRANSPORTATION, BUT AIRACER DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY THIRD-PARTY TRANSPORTATION PROVIDER AND MEMBER EXPRESSLY WAIVES AND RELEASES AIRACER FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD-PARTY TRANSPORTATION PROVIDER. MEMBER ACKNOWLEDGES THAT AIRACER DOES NOT MONITOR ANY THIRD-PARTY TRANSPORTATION PROVIDER’S ON-GOING COMPLIANCE WITH ANY AND ALL LICENSING AND/OR PERMITTING RULES AND REGULATIONS, AND AIRACER WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY TRANSPORTATION PROVIDER’S FAILURE TO MAINTAIN A CURRENT LICENSE AND/OR PERMIT. RESPONSIBILITY FOR THE DECISIONS MEMBER MAKES REGARDING AIRACER’S SERVICES RESTS SOLELY WITH MEMBER. AIRACER WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY SUCH THIRD PARTIES AND MEMBER EXPRESSLY WAIVES AND RELEASES AIRACER FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM MEMBER’S USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO MEMBER BY THE SERVICE. IN NO EVENT WILL AIRACER, ITS SHAREHOLDERS, DIRECTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF MEMBER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM INTERACTIONS WITH OTHER THIRD PARTIES, THIRD-PARTY SERVICES, OR FLIGHTS MEMBER BOOKS THROUGH THE SERVICES.
ANY DISPUTE MEMBER HAS WITH ANY OPERATOR, CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN MEMBER AND SUCH THIRD PARTY AND MEMBER IRREVOCABLY RELEASES AIRACER AND ITS MEMBERS, AFFILIATES, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. AIRACER WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN MEMBER AND ANY THIRD-PARTY. THE QUALITY OF THE FLIGHTS SCHEDULED THROUGH THE SERVICES ARE ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH FLIGHTS OR THIRD-PARTY SERVICES. MEMBER UNDERSTAND THAT BY USING THE SERVICES, MEMBER MAY BE EXPOSED TO TRANSPORTATION THAT IS POTENTIALLY DANGEROUS, HARMFUL, OR OTHERWISE UNSAFE AND THAT MEMBER USES THE SERVICE AT MEMBER AT THEIR OWN RISK.
INDEMNIFICATION: Member shall indemnify Airacer, its parents, subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (an “Indemnified Party”) and save and hold each of them harmless against and pay on behalf of or reimburse any such Indemnified Party as and when incurred for any losses (including attorneys’ fees) which such indemnified party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue to any third-party services received in connection with this Agreement. The provisions of this paragraph shall survive the termination of this Agreement and Member’s membership.
FORCE MAJEURE: Airacer shall not be liable for any delay or failure to perform resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Airacer’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, pandemic, epidemic, government regulations, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
DISPUTE RESOLUTION:
(a) Mandatory Arbitration. Please read this dispute resolution carefully (“Dispute Resolution”). It affects your rights. YOU AND AIRACER AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
(b) Procedure. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Airacer, to you via any other method available to Airacer, including via e-mail. The Notice to Airacer should be addressed to AIRACER INC. 28-07 Jackson Ave, Long Island City, NY 11101, Attn: General Counsel (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Airacer do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Airacer may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Airacer, then Airacer will promptly reimburse you for your confirmed payment of the filing fee upon Airacer’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and Airacer agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND AIRACER AGREE THAT THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PARAGRAPH IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Airacer seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Airacer or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Airacer, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(g) Claims. You and Airacer agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred. All claims you bring against Airacer must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Airacer may recover attorneys' fees and costs up to $5,000, provided that Airacer has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(h) Modifications. In the event that Airacer makes any future change to the Mandatory Arbitration provision (other than a change to Airacer’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to Airacer’s Arbitration Notice Address, in which case your account with Airacer and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement.
(i) Enforceability. If only Section (d) hereunder or the entirety of this Section 10 is found to be unenforceable, then the entirety of this Arbitration provision will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section titled “Governing Law” will govern any action arising out of or related to this Agreement.
GOVERNING LAW: The laws of the State of New York, excluding its conflicts of law rules, govern this Agreement. Your use of the Service may also be subject to other local, state, federal, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts and waive any defense of inconvenient forum.
MISCELLANEOUS: (i) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, (ii) this Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto, and (iii) if any term or provision of this Agreement is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, the illegality, invalidity or unenforceability shall not affect the validity of the remainder of this Agreement, and to the extent permitted by applicable laws, any such term or provision shall be restricted in applicability or reformed to the minimum extent for such to be enforceable.
ASSIGNMENT: The Agreement and the Services provided hereunder shall not be assignable or transferable by Member without the prior written consent of Airacer (which may be withheld in Airacer’ absolute discretion). Members may not reproduce, duplicate, copy, sell, resell, or exploit any portion of the Services without the Airacer’s express prior written consent.
SIGNATURES: By signing this Agreement, Member acknowledges that (a) This Agreement will become legally binding upon its acceptance by Airacer, and (b) Airacer makes no representations or warranties to Member, either expressed or implied, except to the extent expressly set forth in this Agreement. The Agreement and any documents pursuant hereto may be separately executed by the Parties in two or more counterparts, and by facsimile, PDF, or similar means of electronic delivery, and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of the Agreement.
You may contact us at:
Airacer, Inc. 1460 Broadway
New York, NY, 10019
By Email:
marketing@airacer.com
Last Updated: September 16, 2022
AIRACER MEMBERSHIP: This Membership Agreement (this “Agreement”) with Airacer Inc (“Airacer”) governs the Jet Card membership services provided by Airacer (the “Services”). The Services provided shall be pursuant to the membership subscription selected by you and described in further detail in Exhibit A attached to this Agreement. Flight services and ground transportation is provided via third-party Operators (“Operators”) and by participating in any such third-party services you may also be bound by such Operators’ terms and conditions.
TERM: The term of your Agreement will begin on the Membership Start Date, set forth above, and shall continue until the date that the Agreement expires or is earlier terminated, subject to the early termination of this Agreement as provided herein. The expiration date of this Agreement, subject to renewal or extension, shall be for the duration of the Subscription Period set forth above. The Agreement will automatically renew for the same Subscription Period Term stated above, unless a thirty (30) day written notice of cancellation is provided prior to the commencement of the renewal term.
PAYMENTS: All payments shall be automatically drawn by Airacer in accordance with the Payment Frequency set forth above. The payments shall be made by either the Member or any Payment Responsible Party stated above. The Responsible Party shall complete an ACH/Payment Authorization Form provided by Airacer.
CANCELLATION: Unless otherwise specified in this Agreement, and effective no earlier than the expiration of the Initial Term End Date, Member may cancel Member’s membership and terminate this Agreement by providing written notice to Airacer. Cancellation received between the first and the last day of the month will be effective upon the next month’s billing cycle. Member shall email such cancellation notice to marketing@airacer.com. Member’s account must be current and in good standing before Airacer will process any such request to cancel. You acknowledge and agree that you will forfeit any prepaid fees made prior to the cancellation date. All fees paid are non-refundable.
PAYMENT DEFAULT: If Member fails to pay any amount owed by Member (or Responsible Party) fails to pay Member’s monthly dues per the Agreement) when due under this Agreement, as applicable, then Airacer shall be entitled, at any time in its sole discretion, to suspend or cancel Member’s membership and terminate this Agreement and to require the Responsible Party to immediately pay all past due balances owed. Suspension or cancellation shall not relieve the Responsible Party from the obligation to pay any unpaid balances owed. Any payments owing to Airacer that are not received when due shall bear interest at the highest rate permitted by law. Failure to pay any amounts owed to Airacer when due, the responsible party shall pay all costs and expenses of collection incurred by Airacer, including reasonable attorney’s fees and expenses.
REFUSAL OF SERVICES: You acknowledge and agree that Operators providing services to Member, may refuse to transport or remove a Member/passenger from an aircraft or vehicle for any reason, including, but not limited to: (a) failure to comply with this Agreement or Operator’s instruction in general; (b) disorderly, disruptive, abusive, threatening, or conduct; (c) appearance that a passenger is intoxicated or under the influence of alcohol drugs; or (d) the appearance that a passenger is engaged in illegal activity.
THIRD PARTY SERVICES: Airacer does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services, and Airacer shall not be a party to or in any way monitor any transaction between a Member and third-party providers of products or services.
DISCLAIMER OF WARRANTIES: EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO PROVIDER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED BY AIRACER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER ISSUES. YOU ACKNOWLEDGE AND AGREE THAT AIRACER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH ISSUES. Certain jurisdictions do not allow the exclusion and limitations of certain implied warranties, therefore, some of the above exclusions may not apply to you. This Agreement gives Members specific legal rights, and Members may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement shall not apply to the extent prohibited by applicable law.
LIMITATION OF LIABILITY: EXCEPT IN CASES OF AIRACER’S GROSS NEGLIGENCE, AIRACER IS NOT RESPONSIBLE OR LIABLE TO MEMBER FOR ANY LOSS, INJURY, EXPENSE, DAMAGE TO PROPERTY OR PERSONAL SICKNESS, INJURY, OR DEATH WHICH RESULTS FROM OR DURING A FLIGHT, OR ANY OTHER THIRD-PARTY SERVICE. NOTWITHSTANDING THE FOREGOING, AIRACER DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A DIRECT AIR CARRIER. AIRACER OFFERS INFORMATION AND A METHOD TO OBTAIN THIRD-PARTY TRANSPORTATION SERVICES BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO MEMBER BY SUCH THIRD PARTIES. AIRACER MAY INTRODUCE MEMBER TO THIRD-PARTY TRANSPORTATION PROVIDERS TO PROVIDE MEMBER TRANSPORTATION, BUT AIRACER DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY THIRD-PARTY TRANSPORTATION PROVIDER AND MEMBER EXPRESSLY WAIVES AND RELEASES AIRACER FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD-PARTY TRANSPORTATION PROVIDER. MEMBER ACKNOWLEDGES THAT AIRACER DOES NOT MONITOR ANY THIRD-PARTY TRANSPORTATION PROVIDER’S ON-GOING COMPLIANCE WITH ANY AND ALL LICENSING AND/OR PERMITTING RULES AND REGULATIONS, AND AIRACER WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY TRANSPORTATION PROVIDER’S FAILURE TO MAINTAIN A CURRENT LICENSE AND/OR PERMIT. RESPONSIBILITY FOR THE DECISIONS MEMBER MAKES REGARDING AIRACER’S SERVICES RESTS SOLELY WITH MEMBER. AIRACER WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY SUCH THIRD PARTIES AND MEMBER EXPRESSLY WAIVES AND RELEASES AIRACER FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM MEMBER’S USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO MEMBER BY THE SERVICE. IN NO EVENT WILL AIRACER, ITS SHAREHOLDERS, DIRECTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF MEMBER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM INTERACTIONS WITH OTHER THIRD PARTIES, THIRD-PARTY SERVICES, OR FLIGHTS MEMBER BOOKS THROUGH THE SERVICES.
ANY DISPUTE MEMBER HAS WITH ANY OPERATOR, CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN MEMBER AND SUCH THIRD PARTY AND MEMBER IRREVOCABLY RELEASES AIRACER AND ITS MEMBERS, AFFILIATES, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. AIRACER WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN MEMBER AND ANY THIRD-PARTY. THE QUALITY OF THE FLIGHTS SCHEDULED THROUGH THE SERVICES ARE ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH FLIGHTS OR THIRD-PARTY SERVICES. MEMBER UNDERSTAND THAT BY USING THE SERVICES, MEMBER MAY BE EXPOSED TO TRANSPORTATION THAT IS POTENTIALLY DANGEROUS, HARMFUL, OR OTHERWISE UNSAFE AND THAT MEMBER USES THE SERVICE AT MEMBER AT THEIR OWN RISK.
INDEMNIFICATION: Member shall indemnify Airacer, its parents, subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (an “Indemnified Party”) and save and hold each of them harmless against and pay on behalf of or reimburse any such Indemnified Party as and when incurred for any losses (including attorneys’ fees) which such indemnified party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue to any third-party services received in connection with this Agreement. The provisions of this paragraph shall survive the termination of this Agreement and Member’s membership.
FORCE MAJEURE: Airacer shall not be liable for any delay or failure to perform resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Airacer’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, pandemic, epidemic, government regulations, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
DISPUTE RESOLUTION:
(a) Mandatory Arbitration. Please read this dispute resolution carefully (“Dispute Resolution”). It affects your rights. YOU AND AIRACER AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
(b) Procedure. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Airacer, to you via any other method available to Airacer, including via e-mail. The Notice to Airacer should be addressed to AIRACER INC. 28-07 Jackson Ave, Long Island City, NY 11101, Attn: General Counsel (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Airacer do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Airacer may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Airacer, then Airacer will promptly reimburse you for your confirmed payment of the filing fee upon Airacer’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(c) Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and Airacer agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) No Class Actions. YOU AND AIRACER AGREE THAT THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PARAGRAPH IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
(e) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
(f) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Airacer seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this Agreement by Airacer or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Airacer, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
(g) Claims. You and Airacer agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred. All claims you bring against Airacer must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Airacer may recover attorneys' fees and costs up to $5,000, provided that Airacer has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(h) Modifications. In the event that Airacer makes any future change to the Mandatory Arbitration provision (other than a change to Airacer’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to Airacer’s Arbitration Notice Address, in which case your account with Airacer and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement.
(i) Enforceability. If only Section (d) hereunder or the entirety of this Section 10 is found to be unenforceable, then the entirety of this Arbitration provision will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section titled “Governing Law” will govern any action arising out of or related to this Agreement.
GOVERNING LAW: The laws of the State of New York, excluding its conflicts of law rules, govern this Agreement. Your use of the Service may also be subject to other local, state, federal, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts and waive any defense of inconvenient forum.
MISCELLANEOUS: (i) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, (ii) this Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto, and (iii) if any term or provision of this Agreement is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, the illegality, invalidity or unenforceability shall not affect the validity of the remainder of this Agreement, and to the extent permitted by applicable laws, any such term or provision shall be restricted in applicability or reformed to the minimum extent for such to be enforceable.
ASSIGNMENT: The Agreement and the Services provided hereunder shall not be assignable or transferable by Member without the prior written consent of Airacer (which may be withheld in Airacer’ absolute discretion). Members may not reproduce, duplicate, copy, sell, resell, or exploit any portion of the Services without the Airacer’s express prior written consent.
SIGNATURES: By signing this Agreement, Member acknowledges that (a) This Agreement will become legally binding upon its acceptance by Airacer, and (b) Airacer makes no representations or warranties to Member, either expressed or implied, except to the extent expressly set forth in this Agreement. The Agreement and any documents pursuant hereto may be separately executed by the Parties in two or more counterparts, and by facsimile, PDF, or similar means of electronic delivery, and all such counterparts shall be deemed an original, but all of which together shall constitute one and the same instrument and will be binding on the Parties as if they had originally signed one copy of the Agreement.
You may contact us at:
Airacer, Inc. 1460 Broadway
New York, NY, 10019
By Email:
marketing@airacer.com