Terms and Conditions – Brazil
Article 1: Definitions
In these terms and conditions (the “Terms”), the defined terms below shall have the following meaning:
1.1 “Agreement”: an agreement between a Passenger and AirHelp that is reached after the acceptance of these Terms by the Passenger. The Agreement shall be considered reached when the Passenger has signed the Proxy or an Authority Document in addition to accepting these Terms.
1.2 “AirHelp”: AirHelp Germany GmbH, a company incorporated in Germany with its registered office at Boxhagener Straße 18, 10245 Berlin, Germany (DE 320095320).
1.3 “AirHelp+ Membership”: If a Passenger has purchased AirHelp+ Membership, AirHelp will waive its Service Fee and Legal Action Fee, if applicable, for AirHelp’s Services for the Claims covered by the booking for which the Passenger purchased AirHelp+ Membership.
1.4 “AirHelp Connect”: A free online tool available on AirHelp’s website and mobile application that allows you to connect your inboxes to AirHelp for the purpose of allowing AirHelp to identify flight bookings and potential claims under Air Passenger Rights Regulation in your inboxes.
1.5 ”Air Passenger Rights Regulation”: any law, regulation, directive, international convention or similar, whether issued on state, federal, national, international or regional level, and case law, that establishes rules on monetary compensation, damages or refund to passengers in the event of overbooked, delayed, cancelled or otherwise disrupted flights or luggage claims. Including, but not limited to, Law 8.078/90 (Brazilian Consumer Defense Code), Resolution No 400 of the National Civil Aviation Agency of Brazil (ANAC) and Regulation (EC) No 261/2004 of the European Parliament, as applicable.
1.6 “Proxy”: the document, whereby the Passenger, subject to the terms and conditions therein, grants powers so that AirHelp can proceed with the Claim.
1.7 “Authority Document”: a document provided by AirHelp to the Passenger, which authorizes AirHelp, one of AirHelp’s affiliates or partners, or an external representative, to act on behalf of the Passenger. The document may be in many shapes and forms, due to various jurisdictional requirements, including, but not limited to, a Proxy, a Power of Attorney or a Passenger Care Agreement.
1.8 “Claim”: any claim against an airline for monetary compensation, damages or refund pursuant to Air Passenger Rights Regulation or goodwill compensation.
1.9 “Passenger(s)”: person(s) that has accepted these Terms.
1.10 “Eligibility Service”: is AirHelp’s delivery of its state-of-the-art claim eligibility determination through software. The Eligibility Service is conducted on a Claim by Claim basis in AirHelp’s web form or on all found flights if the Passenger has connected to AirHelp Connect. The Eligibility Service will inform the Passenger of the likelihood of having an eligible Claim. An eligible Claim will have a high likelihood of getting paid and AirHelp will provide its Conflict Resolution Service for such Claims if requested by the Passenger. Claims that are not eligible will have a low likelihood of getting paid and AirHelp will not provide its Conflict Resolution Service for such Claims.
1.11 “Flight Compensation”: total amount of money paid by an airline in relation to a Claim as compensation, refund, damages, settlement, a gesture of goodwill or otherwise, to the Passenger or AirHelp after the Passenger has accepted these Terms. For the avoidance of doubt, Flight Compensation does not include any payments or reimbursements of attorney’s fees, cost of legal advice, court fees, collection cost, interest or similar, which payments shall belong solely to AirHelp.
1.12 “Information Service”: is AirHelp’s provision of flight information, airline information, airport information, other travel related information, information about air passenger rights and consumer protection laws. The information will both be specifically relevant to the Passenger’s travels and be of more a generic context, such as ranking of airports or airlines, or news about changes in air passenger rights. The information will be delivered through electronic communication, including e-mail, personalized dashboard, AirHelp controlled websites or mobile application.
1.13 “Conflict Resolution Service”: is AirHelp’s pursuit of a Claim, including, if necessary, by Legal Action.
1.14 “Legal Action”: presenting an administrative Claim before a court or a government body, such as the National Civil Aviation Agency of Brazil (ANAC), or forwarding a Claim to an external legal representative, such as an attorney or law firm.
1.15 “Member(s)”: person(s) that have purchased an AirHelp+ Membership.
1.16 “Price List”: appendix attached to this Terms specifying accepted currencies, methods of payment and all fees charged by AirHelp aside from the reimbursement of court fees and attorney’s fees, which will be offset by AirHelp where applicable.
Article 2: Agreement
2.1 After the Passenger has accepted these Terms, AirHelp agrees to deliver and the Passenger agrees to receive Eligibility Service and Information Service.
2.2 After the Passenger has accepted these Terms and signed either the Proxy or Authority Document, the Passenger agrees to receive the Conflict Resolution Service and AirHelp agrees to deliver the Service unless AirHelp notifies the Passenger without unreasonable delay that AirHelp cannot deliver the Service for such Claim.
2.3 By entering into an Agreement with AirHelp, the Passenger warrants that he/she is authorized and has the legal capacity to enter into the Agreement on his/her own behalf and, where applicable, on behalf of his/her fellow passengers. By signing the Proxy or an Authority Document, the Passenger warrants that he/she is authorized and has the legal capacity to sign the Proxy or an Authority Document on his/her own behalf and, where applicable, on behalf of his/her minor fellow passengers.
2.4 The Passenger acknowledges that AirHelp only seeks Flight Compensation. The Passenger agrees that AirHelp will not accept travel vouchers and/or other services as Flight Compensation and that such offer from airlines will be considered as refusal of payment, unless AirHelp determines that the likelihood of a more favorable outcome for the Passenger is low and it under the circumstances would be the best choice to accept such offer.
2.5 The Passenger warrants that the Claim has not been assigned to third parties and no legal dispute is pending or expected between the Passenger and the airline in the same matter.
2.6 After signing the Proxy, the Passenger may not assign the Claim to any other party. Any existing engagements or assignments, if any, must be canceled before signing the Proxy or an Authority Document.
2.7 If the Passenger receives any direct payments or any other compensation from the airline concerned after entering into the Agreement, the Passenger shall be obliged to advise AirHelp without delay. Such payments shall be considered Flight Compensation and entitle AirHelp to its Service Fee and Legal Action Fee if Legal Action was taken prior to the Passenger receiving payment from the airline concerned. For the avoidance of doubt, Flight Compensation do not include any payments or reimbursements of attorney’s fees, cost of legal advice, court fees, collection cost, interest or similar, which payments shall belong solely to AirHelp.
2.8 After signing the Proxy or an Authority Document, the Passenger shall be obliged to cease negotiations with the airline concerned and direct any contact made by the airline to AirHelp in order to ensure that AirHelp achieves the best result possible.
Article 3: Description of Conflict Resolution Service
3.1 AirHelp asserts the Passenger’s Claim for Flight Compensation from the operating airline on the basis of Air Passenger Rights Regulation in force applicable to the Passenger’s particular air travel.
3.2 Flight data and information may be submitted to AirHelp via the website, mobile apps, email, other electronic or software solutions supported by AirHelp or phone.
3.3 To pursue the Claim successfully, AirHelp needs the Passenger’s signed Proxy or Authority Document, which he/she can send to AirHelp via the web form, mobile app or using email or postal service. On receiving a Passenger’s signed Proxy or Authority Document, AirHelp prepares a request for payment and sends it to the operating airline without unreasonable delay and handles all further correspondence. For this part of the Service, if Flight Compensation is paid, AirHelp charges its Service Fee (see Price List).
3.4 If the operating airline fails to pay Flight Compensation within a reasonable period after being notified by AirHelp and provided the case may be asserted with adequate certainty, AirHelp may forward the case for Legal Action to pursue the Claim. In the event that Legal Action is undertaken and Flight Compensation is paid, AirHelp charges the Legal Action Fee in addition to the Service Fee, see Price List).
3.5 In the event that an external legal representative is used for Legal Action, the Passenger allows AirHelp to grant the legal representative access to all of the data communicated to AirHelp and allows the legal representative to transfer information concerning the proceedings to AirHelp. Where another Certificate, Power of Attorney, Statement, Proxy or other additional documents are required by the relevant court, the Passenger undertakes to sign such additional documents. In case the Passenger has already signed a Proxy and signs a COA, Power of Attorney, Client Care Agreement or similar, the Passenger accepts that such Claim is assigned back to the Passenger by signing the COA, Power of Attorney, Client Care Agreement or similar.
3.6 If an external legal representative comes to the conclusion that there are insufficient prospects of success, the Passenger will be informed and no (further) Legal Action will be taken.
3.7 If AirHelp or an external legal representative institutes legal proceedings to pursue a Claim, AirHelp will cover any costs incurred in the event the lawsuit is lost. In the event, the lawsuit is won, or a settlement has been reached between the airline and AirHelp, AirHelp will cover any costs incurred that are not covered by the airline. If a lawsuit is won, a claim for reimbursement of court fees will be put forward on behalf of the Passenger. The same applies for the cost of legal advice and attorney’s fees regardless of whether the legal proceedings are performed by AirHelp or an external legal representative.
3.8 The Passenger acknowledges that it is the sole decision of AirHelp to accept any settlement offer since the Passenger has forwarded the Claim to AirHelp. In case AirHelp acts on behalf of the Passenger pursuant to an Authority Document or Proxy, the Passenger authorizes AirHelp to accept or reject settlement offers based on AirHelp’s experience with the airline and the advice from external legal representatives.
Article 4: Description of AirHelp+ Membership
4.1 A Passenger can join the Membership by purchasing an AirHelp+ Membership.
4.2 The Membership fee will be advised to the Passenger at the time of the purchase, which the Passenger has to pay in order to become a Member and enjoy the benefits specified herein.
4.3 AirHelp offers the Membership either as:
i) a per booking subscription, or ii) a yearly subscription:
i) The Membership as a per booking subscription will cover Claims that originate from the booking for which the Passenger purchased the Membership.
ii) The Membership as a yearly subscription will cover Claims that originate from bookings within the given time period. The fee for this Membership will be billed yearly.
Both Memberships will be available as either a Complete plan or as an Essential plan. Only Members who have booked the Complete plan will have access to the additional benefits outlined in 4.7.
4.4 The Membership commences on the day of purchase.
4.5 Upon the acceptance of the purchase the Member will receive a confirmation.
4.6 For Members, AirHelp will waive its Service Fee and Legal Action Fee, if applicable, for AirHelp’s provision of Services, in relation to the Claims for bookings that are covered by the Membership.
4.8 Benefits are personal and apply only to the Member, which means the Member has to be named as a passenger in the booking, and to a certain number of passengers (as set out in the confirmation email), if they are included in the same booking as the Member.
4.9 The Service Fee and Legal Action Fee will not be refunded to the Member for bookings, which originates from flights that were disrupted prior to the commencement of the Membership.
4.10 The Membership is non-transferable. The Member must promptly notify AirHelp upon becoming aware of any unauthorized use of the Membership.
4.11 For the Membership as a period subscription, the Membership shall be automatically renewed for one year thereafter until and unless the Member chooses to cancel the Membership, which can be done i) by the Member, when logged into his/her account and choosing “Manage Membership” in the dashboard and clicking “Cancel Membership”, or ii) by the Member providing AirHelp with a written notice of his/her desire not to automatically renew the Membership, sent to: [email protected].
4.12 Members, who qualify as consumers pursuant to the Brazilian Consumer Defense Code or other applicable regulations, can withdraw their Membership within 7 days from the purchase without the need to specify any reasons. To exercise the right to withdrawal and receive a full refund, the withdrawal must be communicated within a 7-day period from the purchase and it must clearly state that the Member wishes to withdraw from the Membership. Due to the nature of the service provided to the Member, the Member cannot withdraw from the Membership, if the Member has been traveling on any flights covered by the Membership. The withdrawal can be sent to: [email protected]
4.13 If the cancellation is received by AirHelp 7 days after the conclusion of the initial or renewed Membership, the Member will not be entitled to any refund of the Membership fee.
4.14 Once the Membership is terminated, canceled, or expired, AirHelp will no longer waive its Service Fee and Legal Action Fee, if applicable, for AirHelp’s provision of Service.
4.15 Former Members who have chosen not to renew their Membership, have to file their claim originating from the Membership period, no longer than 90 (ninety) days after the Membership has expired, to receive the benefits of the AirHelp+ Membership.
4.16 AirHelp reserves the right to refuse the Membership to any person and, in case of breach of the Terms by the Member, terminate the Membership at any time.
4.17 The Member will not be entitled to any refund of the Membership fee upon termination of the Membership by AirHelp.
Article 5: Fees and Payments
5.1 AirHelp provides Eligibility Service, AirHelp Connect and Information Service free of charge.
5.2 AirHelp provides Conflict Resolution Service free of charge unless AirHelp is successful in collecting Flight Compensation. If AirHelp is successful AirHelp will transfer the agreed part of the Flight Compensation to the Passenger, subject only to fees that may apply pursuant to the Price List. Court fees and attorney’s fees will be offset from any payments transferred to AirHelp in the name of the Passenger. If AirHelp is successful, but the Flight Compensation and/or attorney’s fees, court fees, interest or similar has, by any reason, been transferred directly from the airline to the Passenger, even after direct negotiation between them,the Passenger will be invoiced and commits to without unreasonable delay transfer AirHelp’s fees pursuant to the Price List and the received attorney’s fees, court fees, interest or similar, if any, to AirHelp.
5.3 Payment of the agreed part of the Flight Compensation to the Passenger will be done pursuant to the options in the Price List by AirHelp.
5.4 If the Passenger has provided wrong or insufficient information needed to pay the Flight Compensation and it is returned to AirHelp and the Passenger, after several reminders and reasonable endeavors from AirHelp to contact the Passenger by other means than the email provided by the Passenger to AirHelp, does not respond to correct or provide information needed to pay the agreed part of the Flight Compensation, AirHelp shall be entitled to keep the part of the Flight Compensation that otherwise should have been transferred to the Passenger.
5.5 When AirHelp has paid the agreed Flight Compensation pursuant to the instruction of and method selection by the Passenger, AirHelp shall not be liable for:
i) checks, prepaid debit cards, credit cards and similar lost in transit to the Passenger;
ii) any effect of the Passenger giving wrong bank account information, wrong address or similar, including, but not limited to, the Flight Compensation being paid to the wrong receiver. If Flight Compensation at the fault of the Passenger has been paid to a wrong receiver, AirHelp shall not be obligated to actively reclaim it.
5.6 No interest may be claimed for the period between the incoming and outgoing payments. AirHelp reserves the right to retain any interest that has been recovered from the airline.
5.7 AirHelp shall not be liable for any amount of compensation, damages or similar, if AirHelp is prevented to transfer the payment to the Passenger by an event beyond its reasonable control, including without limitation, strike, lock-out, labor dispute, act of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood and storm.
Article 6: Data Protection
6.1 AirHelp will primarily use the personal data provided by the Passenger for the purpose of delivering Eligibility Service, AirHelp+ Membership, AirHelp Connect, Information Service and Conflict ResolutionService in accordance with the Agreement. AirHelp may also collect personal data for other purposes such as statistics, administration, and communication, IT and security administration, physical security, authentication and authorization systems, support systems, a collaboration of internal projects and organizational teams and activities. All personal data is collected in accordance with the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – Lei 13.709/2018) (the “LGPD”) (see Privacy Statement) or other data protection laws that may be applicable.
6.2 The Passenger provides AirHelp with personal data under the applicable Data Protection Laws and Regulations, , with the explicit permission to process the personal data given by the Passenger and, where applicable, given on behalf of or by his/her fellow passengers for the use thereof in the context of the Agreement. AirHelp will only transfer the personal data to third parties under the conditions as listed below:
i) if the Passenger has given consent;
ii) if it is for a purpose directly related to the original purpose for which the personal data was collected;
iii) if it is necessary for the preparation, negotiation and fulfilling the Agreement with the Passenger;
iv) if it is required due to a legal obligation, administrative or court order;
v) if it is required for the establishment or protection of legal claims or in defense of court actions;
vi) if it serves the prevention of misuse or other illegal activities, such as deliberate attacks, to ensure data security.
Article 7: Data and information from the Passenger
7.1 On request by AirHelp, the Passenger or his/her fellow passengers will provide AirHelp with all data or information that is required for the execution of the Agreement. The Passenger warrants that the data and information provided is correct, complete and true, and where applicable, given with the consent of the fellow passengers.
7.2 The Passenger agrees to fully indemnify AirHelp in all respects for all third-party claims including, but not limited to, incorrect Passenger communications, provision of incorrect data/information and fraudulent conduct.
7.3 In case of incorrect data/information and fraudulent conduct, AirHelp reserves the right to terminate the Agreement with immediate effect. If the Agreement is terminated in accordance with this paragraph, the Passenger will not have any right to compensation of any kind.
Article 8: Right of withdrawal
8.1 If you qualify as a consumer pursuant to the Brazilian Consumer Defense Code or other applicable regulations i.e. you are a natural person who enters into a legal transaction for a purpose that is neither your commercial nor your independent vocational activity, you have a statutory right of withdrawal.
8.2 You can withdraw your acceptance of our Agreement within 7 days from the conclusion of the Agreement (e.g., letter, email) without the need to specify any reasons. To exercise your right to withdrawal, the withdrawal must be communicated within the 7-day period mentioned above and it must clearly state that you wish to withdraw from the Agreement. Due to the nature of the service provided to you, you cannot withdraw from our Agreement, if we have informed you that the airline has accepted the Claim, as we in such event have completed the service you requested.
The withdrawal can be sent to:
Boxhagener Straße 18
e-mail: [email protected]
Article 9: Final Provisions
9.1 AirHelp is authorized to alter these Terms and the Price List and to set forth additional conditions at any time and without notice. However, changes with a negative effect on the Passenger will not apply to the Passenger, unless the Passenger agrees to new changes.
9.2 The laws of Brazil apply to these Terms, the Proxy, the Price List and the Agreement between AirHelp and the Passenger. The Passenger is, however, always entitled to claim due to protection under mandatory provisions provided by laws of the country where the Passenger resides.
9.3 Should any provision of these Terms be or become void, illegal or unenforceable, this shall not affect the validity of the remaining provisions in any way whatsoever.
9.4 Rights and obligations fully or partially related to any submitted Claim may be transferred without restrictions by AirHelp to any entity within the corporate group of AirHelp and by AirHelp to third parties.
9.5 The English version of these Terms shall prevail in case of inconsistency to any other language version.
Published: August 3, 2020.