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SkyTicket Terms and Conditions

 

SECTION 1. SERVICE

  1. The Inflight Wi-Fi Service (“Service”) is an aviation flight management solution provided by Gogo Business Aviation LLC and its affiliates (collectively, “GOGO”) intended to provide the passengers (“PAX”) of selected aircraft operators (“Operator(s)”) with in-flight connectivity capability. The Service is comprised of appliances, software and associated cloud-based components (together, “Service Components”), developed and manufactured by GOGO’S suppliers (“Supplier(s)”) and all of which are proprietary to the Suppliers.

 

SECTION 2. OPERATOR OBLIGATIONS

  1. Operator acknowledges and agrees that:
  • It desires GOGO to provide the Service to Operator for subsequent provision of the Service by GOGO to PAX and includes GOGO’s commercially reasonable assistance to Operator in establishing Operator captive portals that are to be used to (a) establish usage accounts for on- board access by PAX, (b) set fees due from PAX for such usage including Operator’s own fees, and (c) manage PAX accounts.
  • It agrees and acknowledges that the use of Service Components and the Service are subject to licensing terms and acceptable use provisions (“AUP”) as are referenced by a link in GOGO’s partner portal. Operator shall as a condition of use of the Service by PAX, procure PAX agreement to such AUP. Operator agrees that failure by Operator to procure the written concurrence of all PAX users to such requirements prior to and as a condition of access to the Service shall be considered a material breach of these Terms and Conditions by Operator.
  • It is (i) in good standing under the laws of the jurisdiction of its organization, is qualified to do business in each such state and province in which is deemed by applicable law to operate, and has complied with all registration and other governmental requirements; (ii) has the power to carry on its business as contemplated by these Terms and Conditions; (iii) has the independent means, requisite skills, facilities and financial and physical resources to perform its obligations under these Terms and Conditions.
  • It will not (a) offer the Service other than as provided herein; (b) provide the Service to any parties other than Operator’s PAX; (c) deliver Service to any PAX if Operator knows or reasonably should know that PAX intends to use the Service other than as permitted under the AUP.

 

SECTION 3. FEES, CURRENCY, PAYMENT, SUSPENSION AND TAXES


Operator shall ensure PAX agreement to all then-current Fees, Currency, Payment Requirements, Suspension Rules Tax Obligations and Credit Card Processing Rules as set forth below as a condition of use of the Service. Failure to do so will constitute a material breach of these Terms and Conditions.

  1. Fees. Operator acknowledges and agrees that the monthly fee to be paid by Operator for the Service shall be equal to four percent (4%) of the gross revenue generated with respect to the Operator as a result of PAX purchases of the Service (“Operator Service Fee”). Operator further acknowledges and agrees that GOGO and its Suppliers may deduct the Operator Service Fee from the amounts received on account of PAX Service purchases.
  2. Currency; Payment by PAX; Monthly Fee Due Operator
    1. Currency. Use of the Service shall be paid by PAX in United States dollars or Euros only.
    2. Operator acknowledges and agrees that it is obligated to charge the PAX for all Service provided via credit/debit card transactions facilitated by the Service.
    3. Operator acknowledges and agrees that it shall timely provide to GOGO and its Suppliers all necessary banking information (e.g. bank name, routing number, account number) to facilitate appropriate payments to all applicable parties arising as a result of the use of the Service by PAX.
  3. Suspension and Termination of Use of Services
    • GOGO reserves the right to terminate or suspend Operator, and or PAX as the case may be, access to Services or full functionality use of the Services, for non-payment of Fees. Additionally, GOGO and its Supplier reserves the right to remotely activate any "disabling code" included in software supporting the Service that will prevent the Service from operating normally in the event of non-payment of Fees for the Service.
  4. Taxes. Operator acknowledges and agrees that it is responsible for the collection and timely remittance to the tax authorities for all applicable taxes imposed by governmental authorities on the use such Service.
  5. Credit Card Usage. The terms, conditions and supplementary requirements associated with credit card usage and processing have been established by the third-party credit card processor FIS in association with GOGO’S Supplier Global Reach Technology, Inc. and shall solely and exclusively apply to all credit card payments by PAX. Any failure or refusal by Operator or PAX to operate in accordance with FIS requirements shall constitute a material breach of these Terms and Conditions.

 

SECTION 4. OPERATIONAL DUTIES

  1. Duties of Operator. In addition to Operator Obligations in Section 2, Operator agrees, at Operator’s sole cost and expense to:
    1. Use commercially reasonable efforts to promote the Service and to offer the Service in a manner designed to promote and maintain the goodwill and reputation of GOGO and its Suppliers.
    2. Not incur any liability on behalf of GOGO or its supplier partners or make any representation, warranty or covenant to any PAX or other person that would subject GOGO or its Suppliers to liability in excess of that described herein. Without limiting the preceding, Operator agrees that it will not provide any Service to any PAX unless such PAX are bound by exclusions and limitations with respect to GOGO that are materially similar to those set forth in Section 8.1 Limitation of Liability. To the extent Operator elects to make any representations or warranties, or to incur any liability that exceeds those in Section 8.1 Operator will be solely and exclusively responsible for those representations, warranties and liabilities.
    3. Perform in a good and professional manner the Service described herein.
    4. Engage, train and maintain qualified field sales personnel relating to the Service.
    5. Not modify the Service or any appliance or software associated therewith, or any markings on any appliances, without the prior written consent of GOGO and its Suppliers;
  2. Independent Contractor Relationship. Operator is not an agent, joint venturer or employee of GOGO; it is an independent contractor that has sole control of the manner and means of performing its obligations and operational duties herein. Neither Operator nor its directors, officers, employees or agents has, nor will hold themselves out as having, any right, power, or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon GOGO or any of its affiliates or Suppliers. Without limiting the preceding, in no event will Operator incur or purport to incur any indebtedness, liability or other obligation on behalf of GOGO or its Suppliers.

Compliance with Laws. Operator will at all times conduct business in an honest and ethical manner and comply with all applicable laws and ensure in its terms and conditions with PAX that PAX agrees to do.

 

SECTION 5. CONFIDENTIALITY

Each Party shall keep as confidential all documentation, pricing and Service information in the same manner that it would keep its own internal proprietary and confidential information, including GOGO Supplier’s documentation and information

 

SECTION 6. INDEMNITY

Operator agrees that it shall indemnify, defend and hold harmless GOGO, and GOGO’s officers, directors, managers, employees, consultants and Suppliers from any and all third party claims, costs, expenses, fine, penalties and the like, arising from any acts or omissions attributable, directly or indirectly to Operator and/or PAX, whether such acts or omissions are negligent or intentional.

 

SECTION 7. TERMINATION

  1. Termination for Cause. GOGO may, immediately and without possibility of cure, terminate Operator’s rights and use by PAX upon the occurrence of a material breach of these Terms and Conditions, including reference to material breach set forth in specific terms. GOGO may also terminate the Operator if Operator becomes the subject of any petition in bankruptcy, is insolvent, has a receiver appointed, or is unable to pay its obligations as they become due.
  2. Termination for Convenience. GOGO may terminate use of the Service by Operator (and PAX) upon ninety (90) days’ prior written notice to Operator and without any early termination penalty.
  3. Procedures after Termination. Upon termination:
    1. All rights granted to Operator hereunder to market and sell the Service shall, terminate. Operator shall discontinue all use of the Service.
    2. Operator understands that the rights of termination hereunder are absolute. Neither party shall incur any liability or compensation obligation whatsoever for any damage (including damage to or loss of goodwill or investment), loss of expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination. Termination is not a sole remedy and, whether or not termination is initiated, all other remedies will remain available to GOGO, in law and in equity. GOGO nor its Suppliers shall be liable to Operator by reason of termination as set forth herein, for any expenditure, investment, commitment, or any loss or damage of any kind, whether direct, indirect, special, consequential, incidental or otherwise.
    3. Each Party will, at its option and direction, either destroy or return to the other Party’s Confidential Information and all other materials, whether in hard copy, electronic format or in any other media, and an authorized representative of each Party will certify in writing to the other Party that it has complied with this obligation. Failure to do so shall constitute a material breach of the Terms and Conditions.
  4. Survival. All Terms and Conditions which by their nature and operation provide for rights and obligations and remedies that extend beyond expiration or termination shall survive termination.

 

SECTION 8. GENERAL PROVISIONS

  1. Limitation of Liability.
    • IN NO EVENT WILL GOGO OR ITS SUPPLIERS BE LIABLE TO OPERATOR OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS, LOSS OF USE OR COST OF CURE. GOGO and Operator agree that the liability of one to the other for direct damages shall be an amount that does not exceed 100% of the amount received by GOGO from Operator during the twelve (12) month period prior to the date the cause of action arises.
  2. Force Majeure. Except with respect to an obligation by a Party to pay an amount due, neither Party will be liable in any way for its failure or delay to perform any terms herein if that performance becomes commercially impracticable as a result of any existing or future law, rule or regulation, whether valid or invalid, or any cause beyond such Party’s reasonable control, including but not limited to war, mobilization, insurrection, accident, pandemic, natural disaster, explosion, rebellion, civil commotion, riot, act of an extremist, terrorist or public enemy, sabotage, labor dispute, lockout, strike, explosion, fire, flood, storm, accident, drought, power failure, inability to obtain suitable and sufficient energy, labor or material, delay of carriers or embargo.
  3. Governing Law and Disputes. The Terms and Conditions will in all respects be governed by and construed in accordance with the laws of the State of New York, United States of America, applicable to agreements made and to be performed entirely within that state, including all matters of construction, validity, and performance, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. Any and all disputes, controversies or claims arising out of or in connection with these Terms and Conditions (each a “Dispute”) shall be resolved by final and binding arbitration under the International Chamber of Commerce Rules of Arbitration then in force (the “Rules”). The place of arbitration shall be New York, New York, and the language of arbitration shall be English. There shall be one arbitrator appointed in accordance with the Rules. Under these Terms and Conditions, Operator and GOGO each waive any and all rights to have a court or jury hear or decide any Disputes.
  4. Miscellaneous.
    1. Notices to GOGO will be in writing and will be effective when either delivered in person or deposited as registered or certified mail, postage prepaid, addressed to GOGO at the address as follows:

    Gogo Business Aviation LLC
    105 Edgeview Drive, Suite 300,
    Broomfield, CO 80021, USA
    Attention: Legal Dept.

  5. Operator agrees that it will not assign or transfer these Terms and Conditions or any of Operator’s rights or obligations under these terms by sale, acquisition, merger, operation of Law or otherwise without GOGO’s prior written consent. GOGO may assign these terms to any affiliate of GOGO without Operator’s consent. The Terms and Conditions will inure to the benefit of and be binding upon each permitted successor or assigns of the Parties. Any assignment by either Party in breach of this Section 8.4(b) will be voidable by the other Party, in the other Party’s sole and absolute discretion.
  6. A Party's delay, failure to enforce or insist on strict compliance or waiver of any right granted hereunder on one occasion will not constitute a continuing waiver, waive that right on any other occasion or waive any other right.
  7. Each provision will be treated as a separate and independent clause, and the unenforceability of any one clause will in no way impair the enforceability of any of the other clauses. Moreover, if any provision is for any reason held to be void, invalid or unenforceable as written, that provision will be void to the extent it is contrary to applicable law and the balance of the engagement will remain in full force and effect unless enforcement of these Terms and Conditions without the invalidated provision would be grossly inequitable under all of the circumstances or would frustrate the primary purposes of the engagement. Alternatively, if a court, arbitrator, or arbitration panel determines that any provision of these terms is not enforceable as expressly written, it is the intention of the Parties that those provisions be modified by the court, arbitrator, or arbitration panel only to the extent necessary for them to be enforceable.
  8. These Terms and Conditions contain the entire understanding and agreement of the Parties with respect to its subject matter and it supersedes any and all other agreements, either oral or in writing, between the Parties with respect to that subject matter. Without limiting the preceding, neither Party is relying upon any covenants, warranties, representations, nor inducements not set forth herein.