XO Rise™ Membership Agreement
XO RISE™ MEMBERSHIP AGREEMENT (this “Rise Program Agreement”) is entered into by and between the person or entity executing this Rise Program Agreement below (“Rise Member”) and XO Global LLC, a Delaware limited liability company (“XO”). This Rise Program Agreement is subject to the Rise Program Terms and Conditions (the “T&Cs”) incorporated in full by this reference, as amended from time to time in accordance with this Rise Program Agreement (collectively, the “Rise Program Terms”). The Rise Program Terms set forth the terms and conditions of membership in the XO Rise Access™ Membership Program (the “Rise Membership Program”). Rise Member and XO are sometimes referred to herein individually as a “Party” and collectively, as the “Parties”. A capitalized term used but not defined in the context of its use in this Rise Program Agreement or in the T&Cs shall have the meaning ascribed thereto in the “Rise Membership Program Glossary” included in the T&Cs.
1. Rise Membership Program.
1.1 Acceptance into Rise Membership Program is at the sole discretion of XO. If upon application, Rise Member is not accepted into the Rise Membership Program, XO will refund the Membership Fee if any was charged, and there shall be no further obligation owed by either Party to each other.
1.2 By executing this Rise Program Agreement, Rise Member is subscribing to be a member of XO’s Rise Membership Program and agreeing to the Rise Program Terms and the consumption of services and benefits available to Rise Member under the Rise Membership Program.
1.3 The Rise Membership Program Account shall consist of a single Rise Member and is non-transferrable.
2. Rise Membership Program Benefits; Features.
2.1 Services. In exchange for the Membership Fee and as part of the Rise Membership Program, XO agrees to arrange air charter transportation services (“Flight Services”) as Rise Member’s authorized agent and provide Rise Member access to select XO sponsored or organized events (collectively with Flight Services, “Services”). XO shall waive a non-member service fee on reservations made by Rise Member for (i) whole aircraft Flight Services and (ii) up to two seats on each shared Flight Service. Rise Member understands and agrees that XO is a foreign air charter broker and does not own or operate any aircraft. XO arranges private jet charter services solely as a manager of the Rise Membership Program and as Rise Member's authorized agent. All Flight Services arranged under the Rise Membership Program are performed by authorized and registered air carriers.
2.2 All Flight Services are arranged on-demand according to customer-directed itineraries and flight requirements under the Rise Program Terms. Flight Services shall be provided by XOJET Aviation LLC, a Delaware limited liability company and affiliate of XO (“XOJET Aviation” and the aircraft under its operational control, “XOJET Aviation Aircraft”), and other aircraft operators holding an air carrier certificate authorizing them to furnish air transportation services pursuant to Federal Aviation Regulations 14 C.F.R. Part 135,121 or applicable foreign regulations (“Other Air Carriers”), on aircraft under their operational control (“Other Air Carrier Aircraft” and together with XOJET Aviation Aircraft, “Rise Program Aircraft”). XO shall have the option of assigning either an XOJET Aviation Aircraft or an Other Air Carrier Aircraft in its sole discretion to any request to schedule a Flight Service (“Flight Request”) as provided in Section A.2 of the T&Cs.
2.4 Pricing, Booking and Payment. Prices for Flight Requests are displayed in the Application or other medium via which the Flight Requests are submitted (such information responsive to a Flight Request, a “Flight Quote”). Prices are dynamic, updated in real time, and are not guaranteed until the Rise Member accepts the Flight Invoice and the Charter Terms for the requested Flight Service. The terms for the quoting, booking, provision, and payment of Flight Services and other Services are set forth in the T&Cs.
2.5 Service Availability.
2.5.1 Non-Peak Days. On Non-Peak Travel Days, Rise Members will enjoy priority access to XOJET Aviation Aircraft and improved access to Other Air Carrier Aircraft (in each case other than for Flight Services that depart between 2:00 am and 7:00 am of the flight origin local time) for Flight Requests within the XO Operations Network, for which Rise Member accepts the Flight Invoice and pays the Flight Cost pursuant to the Charter Terms at least twenty-four (24) or more hours prior to the desired departure time of the first Flight Segment of such Flight Service (“Payment Deadline”).
2.5.2 Peak Travel Days. On Peak Travel Days, access to Rise Program Aircraft shall be subject to availability at dynamic pricing rates. Peak Travel days are listed in Exhibit B to the Charter Terms available at www.flyxo.com.
3. Membership Account and Fees.
3.1 Membership Fee. In exchange for access to the Rise Membership Program, Rise Member agrees to remit an annual membership fee in the amount of $595.00 (“Membership Fee”) prior to activation of the Rise Member’s membership. The Membership Fee is due on an annual recurring basis and includes all applicable taxes. Rise Member agrees to provide XO with a credit card and authorizes XO to automatically charge the Membership Fee to the credit card on file. Rise Member shall provide new or updated credit card information promptly following expiration of the credit card on file.
3.2 The Membership Fee is subject to adjustment from time to time by XO in its sole discretion and any adjusted Membership Fee shall be binding on Rise Member upon renewal of Rise Member’s Membership for any subsequent Membership Term.
3.3 The Membership Fee is (i) an access fee for continued eligibility for, and access to, the benefits available under the Rise Membership Program; (ii) not a payment for transportation or any Services purchased under the Rise Membership Program, (iii) except as provided in this Rise Program Agreement, non-refundable and non-transferable, even if Rise Member fails to utilize the Rise Membership Program or the Services available thereunder and (iv) inclusive of all applicable taxes relative to membership in the Rise Membership Program. The Membership Fee is not amortized over time and not based on Rise Member's ability to purchase or use the Service.
4.1 Commencement Date and Term. Rise Member’s membership in the Rise Membership Program shall commence on the date Rise Member acknowledges and accepts this Rise Program Agreement and pays the Membership Fee (the “Commencement Date”) and shall continue for a period of 12 months, unless otherwise terminated as provided in this Section 4 (such period, the “Membership Term”).
4.2 Termination. The Membership Term shall end and the Rise Program Agreement shall be terminated as follows:
4.2.1 Upon written notice of termination for any reason from one Party to the other Party, such termination to be effective on the later of (i) 30 days after the date of the termination notice, or (ii) the date and time of completion of the last Flight Segment for any Flight Services booked under the Rise Program Agreement prior to such notice of termination that is not otherwise cancelled by Rise Member pursuant to the Charter Terms.
4.2.2 Immediately by a Party upon written notice if the other Party is in breach of this Rise Program 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 Rise Program Agreement or immediately by XO in the event Rise Member breaches any of the Rise Member Representations outlined in Section C.8 of T&Cs.
4.3 Renewal. Unless XO exercises its discretion not to renew Rise Member’s membership, the Membership Term shall be conveniently renewed automatically and Rise Member agrees to be charged the applicable annual Membership Fee for the subsequent Membership Term(s), unless Rise Member provides written notice not to renew to XO at least 30 days prior to the expiration of any preceding Membership Term to firstname.lastname@example.org. In the event Rise Member’s credit card is declined, Rise Member agrees to provide a different method of payment within 3 business days. If Rise Member fails to provide a different method of payment, and the Membership Fee is due and outstanding more than 10 business days, Rise Member’s membership shall be cancelled and Rise Member will forfeit and lose any accrued benefits, including any Loyalty Credits or other credit currencies, and any outstanding charges shall remain due until paid in full.
4.4 Effect of Termination. In the event this Rise Program Agreement is terminated pursuant to Section 4.2 above:
4.4.1 If Rise Member informs XO that it desires to terminate the Rise Program Agreement prior to the end of the then current Membership Term, Rise Member shall not be entitled to a refund of the Membership Fee or any portion of the Membership Fee.
4.4.2 Rise Member shall no longer be eligible to book Flight Services or other Services under the Rise Membership Program.
4.4.3 In the event XO has provided Rise Member with notice of its election to terminate this Rise Program Agreement pursuant to Section 4.2.1 above, XO shall have no obligation to (i) issue a Flight Quote; (ii) book Flight Services on behalf of Rise Member; or (iii) perform any booked Flight Services provided that XO cancelled such booked Flight Services no later than twenty-four (24) hours prior to the departure time of the first Flight Segment for any such Flight Service. XO shall provide Rise Member with a prorated refund of the Membership Fee paid for then current Membership Term.
4.4.4 In the event XO has provided Rise Member with notice of its election to terminate this Rise Program Agreement pursuant to Section 4.2.2 above and unless and until the event giving rise to XO’s election to terminate is cured, XO shall have no obligation to (i) issue a Flight Quote; (ii) book Flight Services on behalf of the Rise Member or (iii) perform any booked Flight Services provided that XO cancelled such booked Flight Services no later than twenty-four (24) hours prior to the departure time of the first Flight Segment for any such Flight Service; or (iv) refund the Membership Fee or any portion of the Membership Fee.
4.5 Survival of Obligations. All obligations of Rise Member or XO that accrue or are owed to XO or Member, respectively, at or prior to any termination of this Rise Program Agreement, and any other obligations which by their terms survive termination of this Rise Program Agreement, shall survive such termination.
5. Terms and Conditions.
5.1 RISE MEMBER APPOINTS AND AUTHORIZES XO TO ACT AS AGENT FOR RISE MEMBER SOLELY TO ARRANGE AND PAY FOR FLIGHT SERVICES OPERATED BY ONE OR MORE LICENSED AIR CARRIERS AND OTHER SERVICES REQUESTED BY RISE MEMBER OR ON RISE MEMBER’S BEHALF. RISE MEMBER HEREBY DESIGNATES, CONSTITUTES AND APPOINTS XO AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT FOR THE PURPOSES OF ENTERING INTO CHARTER CONTRACTS FOR PERFORMANCE OF THE SERVICES AS RISE MEMBER’S AUTHORIZED AGENT.
5.3 In the event of a conflict between the Terms and this Rise Program Agreement, this Rise Program Agreement shall control.
5.4 By execution of this Rise Program Agreement and initialing below, Rise Member acknowledges that Rise Member has reviewed the Terms and agrees to be bound by and subject to the Terms as part of Rise Member’s membership and participation in the Rise Membership Program.
6. Governing Law; Dispute Resolution.
6.1 Governing Law. The Rise Program Terms shall be interpreted and governed by the laws of the State of Florida, without regard to its conflict of laws provisions.
6.2 Alternative Dispute Resolution. Any claim or dispute between the Parties and/or against any agent, employee, successor, or assign of the other Party, whether related to the Rise Program Terms, any of the terms and conditions or the relationship or rights or obligations contemplated in this Rise Program Agreement or any other Rise Program Terms, including the validity of this clause, shall be resolved exclusively by binding arbitration by the American Arbitration Association in Broward County, Florida by a sole arbitrator the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect, which are deemed to be incorporated herein by reference. The existence and content of the arbitration proceedings and any rulings or award shall be kept confidential except: (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, or (ii) with the written consent of all parties. Notwithstanding anything to the contrary, either party may disclose matters relating to the arbitration or the arbitration proceedings where necessary for the preparation or presentation of a claim or defense in such arbitration.
ARBITRATION OR ANY OTHER PROCEEDING SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO BE ARBITRATED OR RESOLVED ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. THE ARBITRATOR'S AUTHORITY TO RESOLVE AND MAKE WRITTEN AWARDS IS LIMITED TO CLAIMS BETWEEN RISE MEMBER AND XO ALONE. CLAIMS MAY NOT BE JOINED OR CONSOLIDATED UNLESS AGREED TO IN WRITING BY ALL PARTIES. NO ARBITRATION AWARD OR DECISION WILL HAVE ANY PRECLUSIVE EFFECT AS TO ISSUES OR CLAIMS IN ANY DISPUTE WITH ANYONE WHO IS NOT A NAMED PARTY TO THE ARBITRATION. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS AND WITHOUT WAIVING EITHER PARTY'S RIGHT OF APPEAL, IF ANY PORTION OF THIS “CLASS ACTION WAIVER AND OTHER RESTRICTIONS” PROVISION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THE ARBITRATION PROVISION SHALL REMAIN IN FULL FORCE AND EFFECT.
7. Indemnification; Limitation of Liability.
The Parties hereby agree to the indemnification and limitation of liability provisions set forth in the T&Cs.
8.1 Representations and Warranties. Each Party represents and warrants to the other that it is duly authorized by all necessary corporate, partnership, or other applicable action to execute, deliver, and perform under this Rise Program Agreement.
8.2 Successors and Assigns. This Rise Program Agreement shall not be assignable by either Party without prior written consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, XO may assign this Rise Program Agreement without the consent of Rise Member to an affiliate or to any entity acquiring a controlling interest in or substantially all of XO’s assets. This Rise Program Agreement and the other Rise Program Terms shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
8.3 Notices. Any notice to be given under this Rise Program Agreement shall be sufficient if sent by electronic transmission, commercial courier with confirmed receipt, to the intended recipient at the address set forth in this Rise Program Agreement, or such other address as shall have been provided by notice by either Party to the other Party. Routine notices and requests for reservations may be given by e-mail.
8.4 Amendments. XO reserves the right to change, suspend, or terminate any of the Services or benefits at any time, including, without limitation, changes, suspension, or termination of any routes, types of aircraft used and/or operators that perform flights, and changes to (or imposition of new) fees or other charges for services or benefits pursuant to the notice provisions outlined herein. XO may in its sole discretion amend any and all of the provisions of the Rise Program Agreement except those expressly requiring the consent of the Rise Member as stated in this Rise Program Agreement, such amendment to be effective on the later of (i) the thirtieth day following the date of the notice of such changes sent the Rise Member, unless otherwise provided herein or (ii) the date specified by XO. Such notification to Rise Member may occur by posting on any Rise Member portal established by XO and accessible through XO’s website or the Application. XO may in its sole discretion amend or modify the Rise Program Terms from time to time. Such amendments and modifications to the Rise Program Terms will be effective upon XO’s publication of the amended or modified Terms on its website or the Application. Rise Member is responsible for regularly reviewing the Rise Program Terms. Rise Member’s continued use of the Services constitutes Rise Member’s consent to be bound by the amended or modified Rise Program Agreement or Rise Program Terms. Any amendment requested by the Rise Member shall require the written consent of an authorized agent of XO, which consent may be withheld in XO’s sole discretion.
8.5 Electronic Signatures. Each Party agrees that the use of any electronic sound, symbol or process attached to or logically associated with a record or document and executed and adopted by a Party with the intent to sign or acknowledge such record or document, including placing a checkmark or toggling a button in the Application or any other electronic medium or e-mail electronic signatures, are intended to authenticate this writing and to have the same force and effect as manual signatures. Rise Member’s access or use of the Services available under the Rise Program constitutes Rise Member’s agreement to be bound by all terms and provisions of this Rise Program Agreement and the other Rise Program Terms as amended or modified from time to time.
8.6 XO Global LLC is registered with the State of Florida as a Seller of Travel. Registration No. ST42114.
9. Colorado Residents’ Rights
The following provision applies exclusively to legal residents of Colorado. Rise Members who are legal residents of Colorado have a right to cancel this Rise Program Agreement subject to the terms and by following the procedure outlined in this Section.
THE PURCHASER MAY CANCEL THIS CONTRACT FOR ANY REASON AT ANY TIME PRIOR TO THE CLOSE OF BUSINESS ON THE NEXT BUSINESS DAY FOLLOWING THE DAY THE PURCHASER SIGNS THE MEMBERSHIP CONTRACT BY DELIVERING OR MAILING TO THE BUYERS' CLUB WRITTEN NOTICE OF CANCELLATION. NOTICE OF CANCELLATION, IF SENT BY MAIL, IS DEEMED TO BE GIVEN AS OF THE DATE THE MAILED NOTICE WAS POSTMARKED. In the event Rise Member residing in Colorado chooses to exercise the cancellation right, such Rise Member agrees to pay XO for any and all services that Member utilized prior to cancellation of his or her Rise Membership at the published non-member rates.
10. Connecticut Residents’ Rights
The following provision applies exclusively to legal residents of Connecticut. Rise Members who are legal residents of Connecticut have a right to cancel this Rise Program Agreement subject to the terms and by following the procedure outlined in this Section.
YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT BELOW.
Notice of Cancellation
Date of Transaction is stated on your membership invoice.
YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE. IF YOU CANCEL, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE BUYING CLUB OF YOUR CANCELLATION NOTICE. TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE TO XO GLOBAL LLC, ATTN: LEGAL DEPARTMENT AT 1901 W. CYPRESS CREEK RD., SUITE 6B, FORT LAUDERDALE, FL 33309, NOT LATER THAN MIDNIGHT OFTHIRD DAY FOLLOWING THE DATE OF TRANSACTION AS STATED ON YOUR MEMBERSHIP INVOICE.
I HEREBY CANCEL THIS TRANSACTION.
In the event Rise Member residing in Connecticut chooses to exercise the cancellation right, Rise Member agrees to pay XO for any and all services that Rise Member utilized prior to cancellation of his or her Rise Membership at the published non-member rates.
11. Florida Residents’ Rights
The following provision applies exclusively to legal residents of Florida. Rise Members who are legal residents of Florida have a right to cancel this Rise Program Agreement subject to the terms and by following the procedure outlined in this Section. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FROM THE DATE LISTED ON YOUR MEMBERSHIP INVOICE, AND RECEIVE A FULL REFUND OF ALL PAYMENTS MADE TO THE SELLER. YOU MAY ALSO CANCEL THIS CONTRACT IF UPON A DOCTOR’S ORDER YOU CANNOT PHYSICALLY RECEIVE THE SERVICES, OR YOU MAY CANCEL THE CONTRACT IF THE SERVICES CEASE TO BE OFFERED AS STATED IN THE CONTRACT. IF YOU CANCEL THE CONTRACT FOR EITHER OF THESE REASONS, THE SELLER, XO, MAY KEEP ONLY A PORTION OF THE CONTRACT PRICE EQUAL TO A PRO RATA PORTION OF THE TOTAL PRICE REPRESENTING THE PROPORTION OF SERVICES YOU USED OR COMPLETED, PLUS THE COST TO THE SELLER OF ANY RELATED GOODS WHICH YOU HAVE CONSUMED OR RETAINED.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice to XO Global LLC., Attn: Legal Department at 1901 W. Cypress Creek Rd., Suite 6B, Fort Lauderdale, FL 33309 not later than midnight of third day following the date of transaction as stated on your Membership Invoice. In the event Rise Member residing in Florida chooses to exercise the cancellation right, Rise Member agrees to pay XO for any and all services that Rise Member utilized prior to cancellation of his or her Rise Membership at the published non-member rates.
12. Massachusetts Residents’ Rights
Rise Members who are legal residents of Massachusetts, you may cancel this agreement if it has been signed by a party thereto at a place other than an address of the seller, which may be his main office or branch thereof, provided you notify the seller in writing at his main office or branch by ordinary mail posted, by telegram sent or by delivery, not later than midnight of the third business day following the signing of this agreement. In the event Rise Member residing in Massachusetts chooses to exercise the cancellation right, Rise Member agrees to pay XO for any and all services that Rise Member utilized prior to cancellation of his or her Rise Membership at the published non-member rates. In order to cancel the Rise Program Agreement, Rise Members who are legal residents of Massachusetts must mail or deliver a signed and dated copy of this cancellation notice to XO Global LLC, Attn: Legal Department at 1901 W. Cypress Creek Rd., Suite 6B, Fort Lauderdale, FL 33309 not later than midnight of third day following the date of transaction as stated on your Rise Membership Invoice.
Notice of Cancellation
Date of transaction is stated on your Rise Membership Invoice.
You may cancel this transaction, without any penalty or obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you under the agreement, and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be cancelled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this agreement; or you may if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to XO at 1901 W. Cypress Creek Rd., Suite 6B, Fort Lauderdale, FL 33309 not later than midnight of (date).
I HEREBY CANCEL THIS TRANSACTION.
13. Virginia Residents’ Rights
Rise Members who are legal residents of Virginia have a right to cancel this Rise Program Agreement within seven days of the date stated on Rise Member’s Rise Membership Invoice. In the event Rise Member residing in Virginia chooses to exercise the cancellation right, Rise Member agrees to pay XO for any and all services that Rise Member utilized prior to cancellation of his or her Rise Membership at the published non-member rates.
BUYER'S NONWAIVABLE RIGHT TO CANCEL:
YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN SEVEN CALENDAR DAYS FROM YOUR EXECUTION OF THIS CONTRACT UNLESS YOU HAVE ALREADY USED THE TRAVEL SERVICES PROVIDED IN CONNECTION WITH THIS TRAVEL SERVICES AGREEMENT. IF YOU HAVE ALREADY USED THE TRAVEL SERVICES PROVIDED IN CONNECTION WITH THIS TRAVEL SERVICES AGREEMENT, YOU MAY STILL CANCEL THIS TRANSACTION WITHIN SEVEN CALENDAR DAYS FROM YOUR EXECUTION HEREOF, BUT YOU ARE NOT ENTITLED TO A REFUND OF ANY PRIOR PAYMENTS MADE FOR THE SPECIFIC TRAVEL SERVICES UTILIZED.
TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE OR SEND A TELEGRAM TO: XO Global LLC, ATTN LEGAL DEPARTMENT AT 1901 W. CYPRESS CREEK RD., SUITE 6B, FORT LAUDERDALE, FL 33309 NOT LATER THAN MIDNIGHT OF THE SEVENTH CALENDAR DAY AFTER EXECUTION OF THE CONTRACT.
I HEREBY CANCEL THIS TRANSACTION.
XO Rise™ Membership Program T&Cs
Part A: Rise Membership Program Flight Service Terms and Conditions
A.1 FLIGHT SERVICES SCHEDULING.
A.1.1 Flight Request. Rise Member shall submit a Flight Request to XO via an aviation advisor, Application, website, email or phone (each of which as used in the context of this Rise Membership Agreement is herein referred to as a “Flight Communication Platform”) on a form specified by XO. Such Flight Request shall contain such information as is necessary or required to facilitate XO’s timely issuance of a Flight Itinerary in response to the Flight Request.
A.1.2 Flight Quote. No later than 48 hours after receipt of the Flight Request, XO shall provide for each Flight Request a written Flight Quote setting forth (i) the itinerary (sometimes referred to herein as the “Flight Itinerary”) for the requested Flight Services, (ii) the Flight Cost and (iii) the estimated Flight Expenses A Flight Itinerary shall not constitute a firm commitment by any Party and XO shall not procure any Flight Services until and unless the Rise Member confirms their acceptance via any Flight Communication Platform of the Flight Invoice (defined below).
A.1.3 Flight Invoice. Upon receipt of Rise Member’s notification via any Flight Communication Platform that Rise Member intends to reserve the Flight Service presented in the Flight Itinerary, XO shall provide Rise Member with the invoice for the Flight Itinerary (the “Flight Invoice”). The Flight Invoice shall list the Flight Costs and estimated Flight Expenses. In addition, XO shall provide the Rise Member a copy of the Charter Terms. Rise Member may accept the Flight Invoice and the Charter Terms by (i) email reasonably evidencing acceptance of the Flight Invoice and Charter Terms or (ii) an Electronic Signature of the Flight Invoice and the Charter Terms. For clarity purposes, Electronic Signature of the Flight Invoice and the Charter Terms for guaranteed Flight Services displayed in the Application constitutes acceptance of Flight Invoice and Charter Terms for such Flight Service. Upon Rise Member’s acceptance of the Flight Invoice and Charter Terms as outlined in this Section, the Flight Service shall be considered reserved (the “Booked Flight”). If Rise Member fails to provide a valid payment method for the Flight Invoice, XO shall have no obligation to provide the Flight Invoice or if a Flight Invoice has been issued, fulfil the Booked Flight.
A.1.3. Charter Terms and Passenger Regulations. Each Booked Flight is subject to the Charter Terms and the XO Passenger Regulations available at FLYXO.com comprising a part thereof by reference in the Charter Terms. XO reserves the right to modify the XO Passenger Regulations from time to time during the Membership Term without notice to Rise Member. Any such modified Passenger Regulations are hereby incorporated into the Charter Terms and made a part thereof and shall be binding on Rise Member after they have been posted by XO at FLYXO.com.
A.2 AIRCRAFT AND AIR CARRIER ASSIGNMENT AND SUBSTITUTION.
A.2.1 Subject to Rise Member’s consent, XO shall have the right to substitute an Air Carrier or a Rise Program Aircraft listed on a Flight Invoice or a Flight Itinerary of a Booked Flight to a different Air Carrier or Rise Program Aircraft (of an equivalent or larger gauge as compared to the Aircraft listed on the Flight Invoice) to fulfill such Booked Flight (“Substitution”). The Rise Member may consent to a Substitution by email, phone or other means of communication.
A.2.2 In the event a Rise Member does not consent to a Substitution or fails to respond to the notice of the Substitution within 24 hours of its receipt, the Substitution is deemed rejected and the Booked Flight shall be deemed cancelled. In such event, XO shall have no liability for any damages of any nature.
A.3 FLIGHT COST AND EXPENSES.
A.3.1 The “Flight Cost” set forth in the Flight Quote is calculated on a total Flight Service (based on the number of Flight Service Hours) basis utilizing an estimate of the number of Flight Service Hours for the requested Flight.
A.3.2 The “Flight Expenses” set forth in the Flight Quote shall represent an estimate of (i) the cost of the Applicable Taxes and (ii) the Incidental Expenses (including reasonable detail of any anticipated charges) for the applicable Flight Services. The final amount of a Flight Expense incurred in connection with a Flight may differ from the dollar amount indicated on the Flight Quote or Flight Invoice for such Flight.
A.3.3 Immediately following the completion of a Booked Flight (or if a Booked Flight involves multiple Flight Segments upon the completion of each Flight Segment), XO shall automatically charge any Flight Expenses to Rise Member’s credit card on file; provided, however, that any Flight Expenses not known at the time of such completion shall be automatically charged when such amount is known. Rise Member agrees to pay all costs of collection of Flight Costs and Expenses, including reasonable attorneys’ fees and expenses.
A. 3.4 FORM OF PAYMENT. All monies due from or remitted by the Rise Member hereunder shall be paid by the Rise Member in U.S. Dollars and in immediately available funds to XO in the form and manner as XO in its sole discretion may reasonably instruct Rise Member.
A.3.5 DISPUTES. Rise Member must notify XO 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.
Part B: Indemnification; Limitation of Liability.
B.1 Indemnification. Rise Member agrees to indemnify and hold XO and its affiliates and their officers, directors, managers, employees, and agents (“Indemnified Party”), harmless from and against any and all claims, damage, demands, losses, liabilities, injury or expense (including attorneys’ fees), that the Indemnified Party incurs arising out of or in connection with Rise Member’s gross negligence, willful misconduct, violation of the rights of any third party (including other Program Members) or third party goods or services providers; provided, however, that Rise Member shall not be liable for the indemnification of any losses, costs, damages, injuries, or expenses arising out of the Indemnified Party’s gross negligence, willful misconduct, or breach of the Rise Program Terms.
B.2 Flight Service Interruption; Limitation of Liability.
B.2.1 XO shall have no liability for delays, flight cancellations, or interruptions or the failure to furnish the Rise Program Aircraft and pilots pursuant to the Rise Program Terms when such event is a result of (i) a Force Majeure event or (ii) a Pilot-in-Command Decision.
B.2.2 In the event a Booked Flight is not completed for any reason (other than a Rise Member delay or cancellation), including a mechanical issue with respect to the Rise Program Aircraft, Rise Member will only be responsible for payment of all costs incurred for the completed portion of the Booked Flight.
B.2.3 If the Rise Member elects to book a Super-Mid Class Aircraft (or larger) for a Flight Itinerary that includes airports with operational restrictions (seasonal or otherwise), certain conditions (whether known at the time of scheduling or subsequently becoming known) may prevent that Super-Mid Class Aircraft (or larger) from being assigned to the Booked Flight. In such event, XO shall (i) have the right, to change the Rise Program Aircraft for such Booked Flight and (ii) inform the Rise Member through the delivery of a modified Flight Itinerary. Upon receipt of the modified Flight Itinerary, Rise Member shall have the right to accept such modifications or cancel the Booked Flight without penalty. In the event the Rise Member elects to accept the modified Flight Itinerary, any additional costs associated with the provisions of the Flight Services contemplated by the modified Flight Itinerary shall be the responsibility of the Rise Member.
B.3 XO, XOJET Aviation and Other Air Carrier Limitations.
B.3.1 RISE MEMBER AGREES TO ACCEPT THE PROCEEDS OF THE INSURANCE POLICIES MAINTAINED BY XO, XOJET AVIATION OR THE OTHER AIR CARRIER, AS THE CASE MAY BE, AS RISE MEMBER’S SOLE RECOURSE AGAINST XO, XOJET AVIATION OR ANY OTHER AIR CARRIER, AS THE CASE MAY BE, FOR ANY LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, INJURY, DEATH OR PROPERTY DAMAGE) TO RISE MEMBER OR ANY ADDITIONAL INSUREDS; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY IN THE EVENT OF XO’S, XOJET AVIATION’S OR THE OTHER AIR CARRIER’S PROVEN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND PROVIDED FURTHER THAT ONE PARTY SHALL NOT BE LIMITED IN ITS RECOURSE AGAINST THE OTHER PARTY TO THE EXTENT INSURANCE PROCEEDS ARE WITHHELD OR REDUCED DUE TO THE ACTIONS OR INACTIONS OF SUCH OTHER PARTY.
B.3.2 IN ALL CASES AND UNDER ALL CIRCUMSTANCES AND NOTWITHSTANDING THE EXCEPTIONS SET FORTH IN SECTION B.3.1, NONE OF XO, XOJET AVIATION OR ANY OTHER AIR CARRIER SHALL IN ANY EVENT BE LIABLE TO RISE MEMBER OR ANY OF MEMBER’S INVITEES OR GUESTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, MANAGERS, AGENTS AND EMPLOYEES, FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, LOSS OF USE, VALUE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES, AND THE LIKE, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, ANY DELAY OR FAILURE TO FURNISH ANY RISE PROGRAM AIRCRAFT CAUSED OR OCCASIONED BY THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS OF XO, XOJET AVIATION OR ANY OTHER AIR CARRIER, AS THE CASE MAY BE, COVERED BY THE RISE PROGRAM TERMS, EVEN IF ANY SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITIES OF SUCH DAMAGES. RISE MEMBER FURTHER UNDERSTANDS AND AGREES ON BEHALF OF THEMSELVES AND THEIR INVITEES OR GUESTS THAT THE LIABILITY OF XO SHALL IN ANY CASE BE LIMITED TO THE AMOUNT OF MEMBERSHIP FEES ACTUALLY PAID BY RISE MEMBER IN THE TWO YEARS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
B.3.3 THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITED RECOURSE AND LIABILITY CLAUSES IN SECTIONS B.3.1 AND B.3.2 AND OTHER RISE PROGRAM TERMS HAVE BEEN EXPRESSLY AGREED TO FOR THE BENEFIT OF XOJET AVIATION AND EACH OTHER AIR CARRIER AS IF THEY WERE PARTIES TO THE RISE PROGRAM AGREEMENT FOR SUCH PURPOSES AND XOJET AVIATION AND SUCH OTHER AIR CARRIER IS AN INTENDED THIRD PARTY BENEFICIARY OF SUCH SECTIONS.
B.4 Member Limitations. RISE MEMBER SHALL NOT BE LIABLE TO XO, XOJET AVIATION OR ANY OTHER AIR CARRIER, NOR ANY OF THEIR RESPECTIVE AFFILIATES, SHAREHOLDERS, EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, AGENTS, ADVISORS OR REPRESENTATIVES FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, LOSS OF USE, VALUE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES, AND THE LIKE, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS OF RISE MEMBER COVERED BY THE RISE PROGRAM TERMS, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITIES OF SUCH DAMAGES.
Part C: Rise Membership Program Miscellaneous Terms
C.1 Rise Member acknowledges that XO is the manager of the Rise Program and Services, and that the success of the Rise Membership Program and the ability to deliver the Services under the Rise Membership Program with high levels of customer satisfaction depends on a vibrant and cooperative membership. Rise Member's good faith cooperation regarding booking, cancellations, notices, departure times, communication, payments and documentation, and other aspects of arranging the Services is required. Any attempt to deliberately manipulate the Service or the Application by repeatedly booking and cancelling Flight Services, failing to authorize payment or pay for the Service as provided for herein or taking other such actions which in XO's reasonable opinion disrupts XO's ability to deliver the Service, notwithstanding anything contained herein to the contrary, will result in XO having the authority to reject Rise Member's Flight Requests without obligation and/or suspend or cancel the Rise Member’s membership. XO may provide the Services under various dbas, including FLYXO.
C.3 Amendments and Modifications. XO may amend or modify the T&Cs as provided in Section 9.4 of the Rise Program Agreement. Such notification to Rise Member may occur in the manner provided in this Rise Program Agreement or following launch thereof, by posting on the Rise Member Portal accessible through XO’s website or mobile application. Rise Member may terminate its participation in the Rise Membership Program in accordance with Section 4.2 of the Rise Program Agreement if it does not agree to the amended Rise Program Terms, and absent such termination Rise Member’s continued participation in the Rise Membership Program shall constitute its consent to be bound by the amended Rise Program Terms.
C.4 Headings and Captions; Severability. All headings and captions in the Rise Program Terms 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 the Rise Program Terms, including any modified Rise Program Terms, shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of the Rise Program Terms 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.
C.5 Independent Contractor. The relationship of XO to Rise Member under the Rise Membership Program is that of independent contractor only. In no event shall the Rise Program Agreement, the other Rise Program Terms, or Rise Member’s participation in the Rise Membership Program be construed as creating a joint venture, partnership, principal/agent, or other form of association or cooperative arrangement between the Parties.
C.6 Entire Agreement. The Rise Program Terms constitute the entire agreement between the Parties concerning the Rise Membership Program and supersede any prior or contemporaneous agreements, understandings or proposals.
C.7 No Waiver. No waiver by any Party of any breach or default of any provision of the Rise Program Terms by the other Party shall be effective as to any other breach or default.
C.8 Rise Member Representations. Rise Member, which for purposes of this section includes its employees, agents, affiliates, and guests (together, for the purposes of this Section, “Rise Member”) hereby represents, warrants, and agrees that: (i) Rise Member is not a sanctioned entity or individual, Designated Party, or is otherwise the subject or target of any economic, export, or trade sanction law, or regulation or travel ban, or is or could be designated as a terrorist, a foreign terrorist organization, an organization that assists or provides support to a foreign terrorist organization, a proliferator of weapons of mass destruction, a narcotics trafficker, or any other similar designation that would prohibit XOJET Aviation or Other Air Carrier from transacting with Rise Member under applicable law; (ii) Rise Member will promptly notify XO in writing should it know, or have reason to know, of any change or potential change in status under this Section; (iii) Rise Member shall honor all applicable laws during the Membership Term; (iv) funds paid to XO by Rise Member are not derived from illegal acts; (v) XO may be required by law to block, freeze, and/or remit funds, which it will do without liability to Rise Member; (vi) Rise Member will promptly provide to XO accurate information and documentation reasonably requested to assess compliance with this Section, and authorizes XO to perform screening and/or background checks; and (vii) without prejudice to all of XO’s other rights under this Rise Program Agreement and at law, (a) XO may terminate this Rise Program Agreement by means of written notice to the Rise Member, with immediate effect, without need of judicial recourse, and without liability for compensation or damages (direct or indirect) of any type or nature, in the event that Rise Member breaches this Section, makes misrepresentations regarding legal compliance, becomes a sanctioned or Designated party, is convicted or adjudicated of a an offence in any jurisdiction that is related to human rights violations, terrorism, drug trafficking, financial impropriety, or could otherwise bring XO into disrepute or is prejudicial to XO’s interest, or XO or air carriers are otherwise unable to transact with Rise Member under law, and (b) Rise Member assumes all liability and shall in perpetuity, beyond the expiry of this Rise Membership Program, indemnify, reimburse, and hold free and harmless XO, its officers, directors, shareholders, employees, agents, affiliates, and subcontractors from and against any and all related claims, suits, losses, costs, and liabilities.
Rise Membership Program Glossary
A capitalized term used but not otherwise defined in the context of its use in the Rise Program Terms shall have the meaning ascribed thereto below.
“Additional Crew Costs” means the cost of any additional personnel required to fulfill a Booked Flight as either requested by the Rise Member or as necessary to satisfy any duty limitations impacting the Booked Trip, such costs to be provided at the daily rate for such personnel.
“Applicable Taxes” means any and all federal, state, and local taxes, charges, imposts, duties, excise taxes, fuel taxes, and fees, including user fees, relating to Rise Member’s use of a Rise Program Aircraft. All domestic Flight Services are subject to federal excise tax on passenger flights, and a domestic segment tax. Flight Services with any point of departure or landing outside the United States are subject to a federal departure tax.
“Flight Segment” shall mean any portion of a Flight Service measured from a point of take off to a point of landing.
“Flight Service Hours” are determined based on the flight time (rounded up to the nearest one tenth of an hour) during which the Rise Member, or another person designated by Rise Member, actually occupies a Rise Program 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.
“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 XO, XOJET Aviation or an Other Air Carrier, as applicable, whether or not of the kind specifically enumerated above.
“Incidental Expenses” includes, to the extent not otherwise set forth in the Flight Quote, the following costs incurred by XO, XOJET Aviation or Other Air Carrier in connection with the provision of Services: (i) costs of requested catering (inclusive of all fees for service, delivery and catering and any associated taxes), (ii) $500 to accommodate a request to use an FBO other than the FBO selected by XO, (iii) De-icing and Hangar Fees, (iv) specially requested in-flight entertainment, (v) telecommunications charges (which are not applicable for travel on any XOJET Aviation Aircraft), (vi) ground transportation, (vii) Third Party Service Charges, (viii) Additional Crew Costs, and (ix) any cancellation fees set forth in the Charter Terms, and (x) any applicable Pet Cleaning Fees, and (x) any other out of the ordinary charges incurred at the specific request of Rise Member.
“Peak Travel Days” means the list of restricted Travel Days defined by XO from time to time.
“Pilot-in-Command Decision” means during any and all flights conducted pursuant to this Rise Program Agreement, the Pilot-in-Command (as defined by the FAA) of such flight shall at all times be empowered to take all steps necessary in the interest of the safety of the Rise Program Aircraft, its passengers, its crew, any cargo, and the operation of the flight, including re-routing, shortening, lengthening, terminating or cancelling such flight. In addition, Rise Member and XO agree that when, in the sole discretion of XOJET Aviation, an Other Air Carrier or the pilots of a Rise Program Aircraft, safety may be compromised, then XOJET Aviation, 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 Rise Program Agreement or any liability for loss, injury, damage, or delay.
“Super-Mid Class Aircraft” means one of the following Rise Program Aircraft or such other Rise Program Aircraft as may be determined by XO, in its sole discretion, to qualify as a Super-Mid Class Aircraft: CX, C300, and G200.
“Third Party Service Charges” means any charges incurred, including the XO Concierge Fee, on behalf of Rise Member for Services provided in support of a Booked Flight under the Rise Membership Program.
“XOJET Concierge Fee” means an amount equal to five percent (5%) of the actual cost for any Third Party Service Charge initially billed to XOJET.
“XO Operations Network” means any destination with in the 48 contiguous United States.