General Terms of Service
1. SCOPE OF AGREEMENT
1.1. The following provisions shall constitute the terms and conditions (i) under which Fly Aviation Services DMCC, a limited liability company, whose registered office is at Office 402, Mazaya Business Avenue – Tower AA1, Jumeirah Lake Towers, P.O. Box 54634, Dubai, United Arab Emirates, (hereinafter referred to as “Flyaero”) and its Affiliates around the world shall provide and/or arrange Services and Goods for Client, (ii) which obligate the Client to pay for such Services and Goods to Flyaero from which invoice(s) are received, and (iii) which govern all other rights, obligations, and limitations relating to the provision and/or arrangement of Services and Goods by Flyaero. Capitalized terms used but not otherwise defined in this Agreement shall have the meaning ascribed to such terms in Article 18.
1.2. Except to the extent specific goods or services are offered by Flyaero only upon the execution of separate written agreements between Flyaero and the undersigned credit applicant and/or prospective customer (“Client”), this agreement for the acquisition of all Services or Goods by Client from, or through any arrangement made by, Flyaero and the accompanying application (this “Agreement”) and the documents referred to herein, contains the entire understanding of Client and Flyaero in respect of the acquisition of such Services or Goods by Client and shall govern all matters relating thereto.
2. AVAILABLE SERVICES AND GOODS
2.1. The services and goods provided to Client by, or through any arrangement made by, Flyaero, including but not limited to the services and goods listed in Article 2 and in the “Flyaero Service Fees” (“Flyaero Service Fees”, an updated copy of which can be obtained by Clients from a Flyaero sales representative) and other documentation prepared by Flyaero, all of which are incorporated herein for all purposes, are referred to in this Agreement as the “Services” and the “Goods” and are for the sole and exclusive use of Client for its own internal business purposes or, if Client is a duly authorized agent of the aircraft owner and is lawfully possessed of the aircraft with the owner’s express consent to purchase Services or Goods for the aircraft, for the sole and exclusive use of Client for its own internal business purposes only for such aircraft. Furthermore, Client shall not resell, repackage, or in any way distribute, deliver, forward, transmit, or broadcast, in any format or by any means any part of the Services or Goods to any other party for an unauthorized purpose. Under this Agreement, Flyaero is primarily a provider, coordinator, and/or arranger of Services for Clients, which may include, without limitation, Flight Support Services, Fuel Services (where title to all fuel passes directly from the fuel provider to Client when the fuel passes the fueling flange on Client’s aircraft), Ground Support Services and Travel Services as described below. Provision by Flyaero of any Goods under this Agreement, whether or not paid in advance with cash, partially paid in advance with cash and partly on credit, or fully obtained with credit, represent sale transactions, including certain fuel transactions, for example when Flyaero provides into-plane fuel services or must follow a certain transaction structure for the benefit of its clients.
2.2. Flight Support Services: Which may include, without limitation, overflight permits, landing permits, slot coordination, prior permission assistance, flight planning, weather, airport NOTAMs, ATC filing, aviation information assistance (“Flight Support Services”).
2.3. Fuel Services: Where aviation fuel and related support and/or arrangement services, which are supplied by Flyaero as Goods, sometimes with related support services, or arranged by Flyaero or Flyaero-Selected Providers as Services, for the benefit of Client (“Fuel Services”).
2.4. Ground Support Services: Which may include, without limitation, aircraft handling, ground transportation, catering, other ground services, ground services coordination, supervision, worldwide network of branded ground services locations by Flyaero, as well as other independent handlers and vendors located throughout the world (“Ground Support Services”).
2.5. Travel Services: Which may include, without limitation, hotel booking, self drive car rentals, visa assistance, airline tickets, and other crew travel support services (“Travel Services”).
2.6. Credit Services: Which are subject to Flyaero’s continuing discretion regarding credit limits, the Client aircraft’s Captain may charge Services and Goods to Client’s account with Flyaero.
3. THIRD-PARTY PROVIDERS
3.1. Flyaero Service Partners: Are third party independent contractors selected by Flyaero, and Flyaero does not, and has no right to, supervise their operations. Although Flyaero attempts to make arrangements only with providers Flyaero believes are responsible and reliable, FLYAERO UNDERTAKES NO INVESTIGATION AND DISCLAIMS ANY AND ALL RESPONSIBILITY FOR THE ACTS AND OMISSIONS OF ANY FLYAERO SERVICE PARTNERS OR FOR THE QUALITY OF SERVICES OR GOODS SOLD OR DELIVERED BY THEM, OR FOR ANY DEFECTS THEREIN, NOTWITHSTANDING THAT FLYAERO MAY RECEIVE A FEE FOR REFERRAL OF BUSINESS TO SUCH FLYAERO SERVICE PARTNERS. SELECTION BY FLYAERO OF THIRD-PARTY PROVIDERS WHO ARE AUTHORIZED AND PERMITTED BY AUTHORITIES REGULATING THE PROVISION OF THE SERVICES OR GOODS THAT ARE PROVIDED BY SUCH THIRD-PARTY PROVIDERS SHALL FULLY DISCHARGE ANY FLYAERO DUTY OF CARE IN CONNECTION WITH ITS SELECTION OF THIRD-PARTY PROVIDERS. LIABILITY OF FLYAERO, IF ANY, FOR THE ACTS OR OMISSIONS OF FLYAERO SERVICE PARTNERS IS SUBJECT TO ARTICLE 9.
3.2. Client Selected Service Providers: if Client chooses to use a third-party provider of services or goods that is not a Flyaero Service Partners, such Client Selected Service Provider shall be Client’s agent. Client hereby assumes any and all responsibility for such third-party provider and Flyaero shall have no liability of any character, type or description to Client or any other Person for the acts or omissions of such third-party provider and Client shall indemnify Flyaero therefrom, reimburse Flyaero therefor, and defend and hold harmless Flyaero there against, fully and completely, if necessary, in addition to what is provided for in Section 9.4.
4. PRICES AND CHARGES
4.1. Services and Goods: A schedule of charges to be invoiced by Flyaero, for Services and Goods provided by Flyaero and any applicable Flyaero Administration Fee, as such term is defined in the Flyaero Service Fees, is published in the Flyaero Service Fees in effect at the time any service is rendered, which Flyaero Service Fees is incorporated herein for all purposes. Prices for any services not on the Flyaero Service Fees shall be determined by Flyaero in its reasonable discretion.
4.2. Third-Party Charges: Charges in the Flyaero Service Fees do not include charges and disbursements from third parties and Affiliates of Flyaero, including, without limitation, for the following:
– landing, departure or other permits and clearances;
– handling of flights, parking, stopover, and other trip support arrangements, and/or charges for delayed or cancelled flights, or cancelled guaranteed hotel reservations;
– any other charges, fees or taxes, including without limitation navigation or airspace charges, imposed or levied on Client or Flyaero by the airport, customs or other governmental or quasi-governmental authorities in connection with Client’s flight;
– charges for Services and Goods provided by Flyaero Service Partners or Client Selected Service Providers; or
– charges for Services and Goods arranged by a Flyaero Ground Support Services Location, Flyaero Service Partners, or a Client Selected Service Providers, which could include, without limitation, ground transportation, catering, or de-icing, and paid by the Flyaero Ground Support Services Location, the Flyaero Service Partner, or Client Selected Service Provider on Client’s behalf, and the associated reasonable Vendor Service Fees, as such term is defined in the Flyaero Service Fees, which are assessed by the Flyaero Ground Support Services Location, the Flyaero Service Partner, or a Client Selected Service Provider for the coordination and payment of same.
4.3. Flyaero Administration Fee: As such term is defined in the Flyaero Service Fees, will be added to all third-party invoices, including invoices from Affiliates of Flyaero, for Services and Goods paid by Flyaero on Client’s behalf. However, for fuel uplifts, a Flyaero Administration Fee will only be added at locations that do not have a contract with Flyaero. The Flyaero Administration Fee is assessed to compensate Flyaero for establishing and maintaining its worldwide network of Flyaero Ground Support Services Locations and Flyaero Service Partners for the benefit of Clients in reliance on Flyaero’s credit, and consolidating invoices from and administering payments to Flyaero Ground Support Services Locations, Flyaero Service Partners, and Client Selected Service Providers.
5. NON EXCLUSIVITY AND UTILIZATION
5.1. Non Exclusivity: Nothing herein is intended nor shall be construed as creating any exclusive arrangement between Flyaero and the Client. This Agreement shall not restrict either Flyaero or the Client from acquiring similar, equal or like Services and/or Goods from other entities or sources.
5.2. Utilization: The Client is not required to utilize Flyaero’s Services and/or Goods and any Service and/or Goods provided by Flyaero for the benefit of the Client under this agreement is by the Client’s own freewill. Under no circumstance shall the content of Article 5 can be construed that the Client will be relieved of its obligations to Flyaero for any Services and/or Goods provided for and for the benefit of the Client.
6. CLIENT CREDIT AND SECURITY
6.1. Credit Support: With the information provided by Client in the accompanying application, Flyaero shall evaluate the creditworthiness of the Client. In its sole discretion, Flyaero shall determine, from time to time, the appropriate credit limit for Client and, as necessary, require security in the form of a cash security deposit, letter of credit, or credit enhancement in the form of a guarantee from a qualified provider, before initiating or continuing to provide Services and Goods to Client.
6.2. Security Interest: In addition to the remedies set forth in Section 16.2 and any other remedies that may be available to Flyaero, Client grants Flyaero a security interest, once invoiced amounts are past due, in any cash deposit held by Flyaero to secure payment of any amount past due to Flyaero from time to time, including cash deposits resulting from Flyaero’s drawing on the letter of credit as provided in Section 7.4.
6.3. Withholding of Services or Goods: If Flyaero, in its sole discretion, at any time deems itself insecure with regard to the creditworthiness of Client, the provision of Services, including Flyaero’s extension of credit to Client, or Goods may be discontinued, with or without notice, until security is provided that is acceptable to Flyaero in its sole discretion.
7. INVOICING, PAYMENT TERMS
7.1. Invoicing: Flyaero will invoice Client as specified in the Flyaero Service Fees, and Client shall pay as provided in this Article 7, all sums due under this Agreement, including, without limitation, charges for Services and/or Goods provided to Client, Third-Party Charges and associated Vendor Service Fees, and Flyaero Administration Fees, all as described in Article 4 above. Flyaero will invoice Client for Third-Party Charges, including charges by Flyaero Ground Support Services Locations, Flyaero Service Partners, and Client Selected Service Providers, typically after Flyaero receives an invoice from such third party for such charges. However, Client understands that there may be considerable passage of time between when Client accepts a Service or Good from a third party and when Flyaero receives the invoice for such Service or Good from such third party. In some instances, Flyaero receives only an aggregated invoice from third parties, from which Flyaero shall have the right to extract line item charges attributable to Client for inclusion in the Flyaero invoice to Client, or receives no formal or timely invoice, in which case Flyaero may proceed to invoice Client for the third party’s customary charge or a charge estimated by Flyaero. No such delay, regardless of its duration, will relieve Client of its obligation to pay invoices received from Flyaero. Flyaero invoices will include, and Client agrees to pay, without limitation, charges for communications made or accepted on Client’s behalf. Invoices by mail or electronically transmitted message shall be considered original invoices.
7.2. Invoices Under Investigation: It is Client’s responsibility to confirm that the invoices received are for Services and/or Goods that were provided to Client, and/or services and/or goods that were provided to Client by a Client Selected Service Providers, and to review the invoiced charges for accuracy. Unless disputed in writing by Client within ten (10) days of the invoice date, all invoices shall be deemed correct and accepted by Client and shall be paid by Client as provided in this Article 7 Inquiries pertaining to charges for Services or Goods provided by Flyaero Ground Support Services Locations or Flyaero Service Partners, or services or goods provided by Client Selected Service Providers, will be forwarded by Flyaero to such third party. However, if Flyaero has paid such third party prior to notice of Client’s dispute inquiry, Client is responsible to pay Flyaero in full, subject to credit or refund by Flyaero to the extent a refund or credit is received from such third party. No dispute shall relieve Client of its obligation to timely pay undisputed portions of any invoice received from Flyaero.
7.3. Payment: Client shall pay Flyaero for all Services or Goods provided to Client or services or goods administered at the request of Client under this Agreement, including any related tax, duty, fee, or other governmental charge assessed, imposed, or levied at such time as it is imposed or collected, even though retroactively imposed or collected. Payments are due net as specified on the Flyaero Service Fees from the date of Flyaero’s invoice. Payment shall be made in the currency specified in the Flyaero Service Fees by wire transfer, check, or draft to Flyaero and at the bank or other location shown on the invoice with all charges to Client for initiating any wire transfer to be in addition to the amounts reflected on such invoice and paid by Client. All payments, including bank transfers, shall indicate which invoice(s) the payment covers; otherwise, Flyaero may apply the payment to Client’s invoices at Flyaero’s sole discretion. However, if Client is not current in the payment of any accounts with Flyaero, Flyaero may apply Client’s payments to all or a portion of any outstanding invoices or obligations of Client, as determined by Flyaero in its sole discretion, without regard to the aging of any account.
7.4. Late Payment: As also stated in Section 16.2 and along with other remedies available to Flyaero, past due amounts bear interest at the Agreed Rate. Past due amounts may be offset or presented for payment against Client’s letter of credit or any other security Client has delivered to Flyaero pursuant to Article 6 In the event a payment from Client reaches Flyaero after Flyaero has drawn on the letter of credit to pay the past due amounts, such payment shall be held by Flyaero as a cash deposit in lieu of the letter of credit and shall not be refunded by Flyaero until (i) Client provides alternate credit support that is satisfactory to Flyaero in its sole discretion or (ii) this Agreement is terminated in accordance with its terms and all Flyaero invoices have been paid by Client.
8.1. Insurance Requirement-Aircraft Owner: At all times during the term of this Agreement and for six (6) months thereafter, Client, if it is the owner of the aircraft, shall maintain in full force and effect, at Client’s sole cost and expense, insurance providing complete and comprehensive coverage for Client’s flight operations. Such insurance shall include, without limitation, aircraft hull and liability insurance on all aircraft to which Services or Goods will be provided at the request of Client covering, on a “per occurrence” basis, bodily injury to passengers and other Persons, in the amount of at least $5,000,000 USD per seat of the covered aircraft, and property damage, in the amount of at least the fair market value of the covered aircraft, and insurance covering all associated litigation costs.
8.2. Insurance Requirement-Aircraft Manager: At all times during the term of this Agreement and for six (6) months thereafter, Client, if it is a duly authorized agent of the aircraft owner and is lawfully possessed of the aircraft with the owner’s express consent to purchase Services or Goods for the aircraft, shall maintain in full force and effect, at Client’s sole cost and expense, insurance providing complete and comprehensive coverage for all of Client’s activities, including Client’s duties as a duly authorized agent of the aircraft owner whose aircraft Client lawfully possesses with the owner’s express consent to purchase Services or Goods for the aircraft. Such insurance shall include, without limitation, insurance covering, on a “per occurrence” basis, bodily injury to passengers and other Persons and property damage, in the amount of at least $50,000,000 USD, and insurance covering all associated litigation costs.
8.3. Evidence of Insurance: Contemporaneously with Client’s execution and delivery of this Agreement, Client shall provide a certificate of insurance to Flyaero of the insurance required under this Article 8.
8.4. Flyaero to Receive Benefit of Insurance: Client shall use its best efforts to have Flyaero named as an additional insured under the insurance required by this Article 8 and Flyaero shall be entitled to the benefit of such insurance to satisfy Client’s indemnification obligations to Flyaero; provided, however, that insurance coverage required in this Article 8 shall not be construed to create a limit of Client’s liability with respect to its obligations of indemnification under this Agreement. To the extent permitted by the terms of such insurance, Client waives subrogation rights thereunder.
9. LIABILITY AND LIMITATIONS THEREOF; EXCLUSIVE REMEDY
9.1. LIMITATIONS OF WARRANTIES: NONE OF FLYAERO OR ANY THIRD-PARTY PROVIDER HAS MADE OR MAKES ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, (II) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR (III) ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
9.2. Client Responsibilities:
9.2.1. Client acknowledges that certain Services provided under this Agreement are advisory in nature, including, without limitation, flight planning and weather services, and, with respect to such advisory services, Client agrees that it has a duty to and shall review and verify the accuracy and completeness of all information provided in connection therewith under this Agreement.
9.2.2. Client agrees that it has a duty to and shall inspect Goods, including fuel, to be delivered by Flyaero or a Flyaero Service Partners or Client Selected Service Providers prior to accepting delivery of such Goods. Client is encouraged to conduct any further investigation or inspection of Flyaero or any Flyaero Service Partners or Client Selected Service Providers delivering Goods which Client determines is necessary or appropriate. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT IS RESPONSIBLE FOR ENSURING THAT NO PERSONNEL REMAIN ON BOARD ANY AIRCRAFT WHILE IT IS BEING REFUELED OR OTHERWISE SERVICED AND CLIENT SHALL BE SOLELY AND COMPLETELY LIABLE FOR ANY DEATH OR INJURY TO PERSONS, OR DAMAGE TO PROPERTY, ARISING OUT OF CLIENT’S ALLOWING PERSONNEL TO REMAIN ON BOARD ANY AIRCRAFT WHILE IT IS BEING REFUELED OR OTHERWISE SERVICED, OR FOR REQUESTING OR REQUIRING ANY THIRD PARTY PROVIDERS TO OPERATE EQUIPMENT, GAUGES, OR SWITCHES ON ANY AIRCRAFT WHILE FUELING OR OTHERWISE SERVICING SUCH AIRCRAFT.
9.3. Exculpation: Client acknowledges and agrees that none of Flyaero, any Flyaero Service Partners, or any Client Selected Service Providers, or any of their respective officers, directors, shareholders, partners, members, employees, representatives or agents or any of their heirs, successors, administrators, legal representations or assigns (each a “Released Party”, and collectively, the “Released Parties”), will be liable to Client in respect of any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative or investigative) (“Proceeding”) for any and all losses, damages (even if Flyaero has been notified of the possibility of any such damages), claims, loss of use or profits, diminution of value, death of or personal injury to any person, defective or improperly labeled Services or Goods, or liability of any character, type, or description, including all expenses of litigation, court costs, and attorney’s fees, whether by statute, in tort or contract or otherwise (“Losses”), as a result of, in connection with, arising out of, or occasioned by, directly or indirectly, in whole or in part, the provision of, the attempt to provide or the failure to provide Services or Goods by any Released Party, including, without limitation, LOSSES AS A RESULT OF, IN CONNECTION WITH, ARISING OUT OF, OR OCCASIONED BY, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, THE NEGLIGENCE OF ANY RELEASED PARTY.
9.4. Indemnification by Client: Client shall indemnify the Released Parties from, reimburse them for, and defend and hold them harmless against, any and all Losses as a result of, in connection with, arising out of, or occasioned by, directly or indirectly, in whole or in part:
9.4.1. the provision of, the attempt to provide or the failure to provide Services or Goods by any Released Party, including, without limitation, LOSSES AS A RESULT OF, IN CONNECTION WITH, ARISING OUT OF, OR OCCASIONED BY, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, THE NEGLIGENCE OF ANY RELEASED PARTY; or
9.4.2. a Released Party’s filing of a lien against an aircraft as provided in Article 16.
9.5. NEGLIGENCE: IT IS THE EXPRESSED INTENT OF CLIENT AND FLYAERO THAT THE EXCULPATION PROVIDED FOR IN SECTION 9.3 AND THE INDEMNITY PROVIDED FOR IN SECTION 9.4 ARE EXTENDED BY CLIENT TO EXCULPATE AND INDEMNIFY THE RELEASED PARTIES FROM THE CONSEQUENCES OF THE RELEASED PARTIES’ OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR CONTRIBUTORY CAUSE OF THE RESULTANT LOSSES.
9.6. NO CONSEQUENTIAL DAMAGES: IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FLYAERO OR ANY THIRD-PARTY PROVIDER BE LIABLE TO CLIENT OR ANY OTHER PERSON, BY STATUTE, IN TORT OR CONTRACT OR OTHERWISE, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES CLAIMED BY CLIENT OR SUCH OTHER PERSON.
9.7. Exclusive Remedy: Should Flyaero have any liability for Losses under this Agreement, the exclusive remedy for Client for any such Losses as a result of, in connection with, arising out of, or occasioned by, directly or indirectly, in whole or in part, the provision of, the attempt to provide or the failure to provide Services or Goods by any Released Party shall not exceed the amount chargeable to Client in respect of the specific portion of such Services or Goods for that flight leg. The enforcement of the remedy specifically provided for in this Section 9.7 shall be the sole and exclusive remedy of Client for such Losses and any matters relating thereto or arising in connection therewith, and Client hereby expressly waives all other remedies.
9.8. Limitation on Claims: No Proceeding shall be brought against any Released Party by Client unless written notice of a claim has been delivered to such Released Party within thirty (30) days of the later of (i) the claim arising or (ii) Client learning of the existence of the claim; provided, however, that in no event shall any Proceeding be brought against any Released Party by Client more than two (2) years after the date the facts, events or circumstances giving rise to the claim first occur. No Proceeding may be instituted against any Released Party prior to the expiration of six (6) months from the date notice is delivered to such Released Party as provided in this Section 9.8.
10. LEASING OF AIRCRAFT/CHANGE OF OWNERSHIP OR REGISTRY
In the event Client leases or loans its aircraft to another party, unless Flyaero is notified otherwise in writing seven (7) days prior to such leasing or loan and Flyaero can reach agreement with such lessee or borrower for the provision of and payment for Services and Goods, Client shall remain liable for all expenses incurred by the aircraft or crew as if the Client were operating the aircraft. Client shall also notify Flyaero of any change in ownership or registry of its aircraft.
11. TERM AND TERMINATION; NOTICE
11.1. Term and Termination: This Agreement shall become effective when executed by an officer of Fly Aviation Services at the date of signing. This Agreement shall continue in force until terminated by either party upon reasonable prior written notice to the other party.
11.2. Effect of Termination: If this Agreement is terminated as provided in Section 11.1, this Agreement will become null and void and of no further force or effect, except that (i) Client shall remain liable to Flyaero for payment for Services or Goods obtained by Client, or in its name, or services or goods administered at the request of Client under this Agreement, that have not been paid, but, once all invoiced charges are fully paid, Client shall have a right to the (A) return of any cash deposit being held by Flyaero, made by or on behalf of Client, (B) release of any letter of credit put in place with Flyaero by or on behalf of Client, and (C) cancellation of any financial guaranty held by Flyaero that was made by or on behalf of Client, to secure payment of any amount past due to Flyaero, each upon written request to Flyaero and (ii) such Articles of this Agreement as are necessary to enforce its terms and conditions shall survive such termination; provided, however, that nothing in this Section 11.2 will be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement.
11.3. Notices: Any notice provided for herein shall be sent by: (i) certified mail, return receipt requested, (ii) electronic mail, (iii) hand delivery, or, (iv) fax transmission, addressed to the appropriate party, to Client at its invoice address, email address or fax number, and to FLY AVIATION SERVICES at Office 402, Mazaya Business Avenue – Tower AA1, Jumeirah Lake Towers, P.O. Box 54634, Dubai, United Arab Emirates, or at such other address or fax number as may be designated in accordance with this Section 11.3. Electronic mail messages, unless acknowledged by return communication, shall be presumed undelivered and should be redelivered by another method until acknowledged. All fax or other electronic communications or confirmations sent in good faith from Flyaero to Client with respect to Services or Goods shall be deemed agreed and assented to by Client, unless Client notifies such Flyaero to the contrary by fax or other writing prior to any Service or Good being delivered, or the expiration of 48 hours, whichever first occurs.
12. REPRESENTATIONS AND WARRANTIES
In order to induce Flyaero to enter into this Agreement and to provide the Services or Goods contemplated hereby, Client represents and warrants to Flyaero that (i) Client either owns the aircraft for which Services or Goods are purchased or is a duly authorized agent of the owner and is lawfully possessed of the aircraft with the owner’s express consent to purchase Services or Goods for the aircraft on credit provided by Flyaero, (ii) Client and those acting on its behalf will not request Flyaero or any Flyaero Ground Support Services Locations or Flyaero Service Partners to provide Services and/or Goods, or Client Selected Service Providers to provide services or goods, if providing them would violate the law, (iii) this Agreement has been duly executed and delivered by Client and this Agreement constitutes the valid and binding obligation of Client, enforceable against Client in accordance with its terms, except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally or by general equitable principles, (iv) Client has accurately completed the accompanying application form, and (v) the person executing this Agreement is a duly appointed representative of Client and has the requisite authority to execute and deliver this Agreement in the name and on behalf of Client.
13. CLIENT INFORMATION AND COMMUNICATIONS WITH FLYAERO
13.1. Client Information: Client hereby authorizes Flyaero and its employees, attorneys, agents, successors and assigns to obtain, from any person, source or entity (including banks, financial institutions and credit agencies) any and all information (including personal and confidential information) concerning the information Client provided in the accompanying application form and Client’s credit history and status, deposits and balances with financial institutions, sources of income, assets, present and prior employment, mortgage, financing and/or rental records and insurance coverage. Any such information will be held, used and processed by Flyaero: (i) to verify the information provided by Client in the accompanying application form and otherwise provided by Client to Flyaero and its employees, attorneys, agents, successors and assigns from time to time, (ii) to manage Client’s account(s), (iii) to confirm, update and enhance Flyaero’s Client records, (iv) for statistical analysis, (v) to establish any identity or otherwise as required under applicable law, (vi) to assess Client’s credit status on an ongoing basis, (vii) to collect any amounts due from Client to Flyaero, and (viii) otherwise as considered necessary or appropriate by Flyaero. In each case, the use of the information may continue after Client has stopped purchasing Services or Goods from, or through any arrangement made by, Flyaero. In addition, Client may be requested to provide further authorizations and disclosures, and satisfy other conditions, as may be necessary to satisfy credit assessments. Flyaero may disclose information relating to Client and/or Client’s account(s) (including personal and confidential information): (a) to credit reporting or reference agencies, (b) to any agent or sub‐contractor of Flyaero performing services in connection with Client’s account, including agents and attorneys collecting amounts due to Flyaero, (c) to any person to whom Flyaero proposes to transfer any of its rights and/or duties under this Agreement, (d) to any guarantor or person providing security in relation to Client’s obligations under this Agreement, (e) as required or permitted by law or any regulatory authority, and (f) as otherwise considered necessary or appropriate by Flyaero. Without prejudice to any other provisions contained in this Agreement, all amounts due and owing by Client to Flyaero shall become due and payable immediately if Flyaero discovers that any information provided by or on behalf of Client to Flyaero or its employees, attorneys, agents, successors and assigns is inaccurate in any material respect.
13.2. Communications with Flyaero: Client agrees and acknowledges that all communications between Flyaero, or its employees, attorneys, agents, successors and assigns, and Client, including but not limited to telephone calls and e‐mails, may be monitored for quality control and to ensure compliance with all applicable laws and regulations.
14. TRADE SANCTIONS AND EXPORT CONTROLS, INSPECTIONS
Client agrees that it shall keep itself informed of and shall comply with governmental trade sanctions and restrictions as they are revised from time to time, and that neither Client, any officers, directors, shareholders, partners, members, employees, representatives or agents of Client nor any of the parties receiving or purchasing Services or Goods on behalf of Client hereunder shall be Persons subject to such trade sanctions or restrictions. Client further acknowledges that the Services may contain certain information that is subject to confidentiality, export and/or release restrictions, and may not be disclosed, exported or released to any third party without (i) ensuring that such disclosure, export or release does not violate any disclosure restrictions, and/or export control laws and regulations, and (ii) obtaining authorization for any disclosure, export or release. Finally, Client acknowledges that, although Flyaero, and third‐party providers may make efforts to see that the crew and passengers are presented at and timely processed through government inspection points during the provision of Ground Support Services, Flyaero and third‐party providers will not seek to influence the manner in which inspections by government agencies are conducted, clearance determinations made, or duties/taxes assessed.
15. GOVERNING LAW, SERVICE OF PROCESS
15.1. Governing Law: This Agreement and all claims and causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of, or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed in accordance with the laws of the United Arab Emirates, or, at the election of the Flyaero from which invoice(s) are received by Client, or to the country in which any aircraft or other asset of the Client is or might at the instigation of Flyaero, governed in accordance with the laws of such Flyaero, without regard to the conflicts of law principles of such that would require the substantive laws of another jurisdiction to apply.
15.2. Jurisdiction and Venue: Each party, by its execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the English courts, or, at the election of the Flyaero from which invoice(s) are received by Client, or to the jurisdiction of the courts of the country in which any aircraft or other asset (including a bank account) of the Customer is or might at the instigation of Flyaero, or to the exclusive jurisdiction of the local courts situated where such Flyaero is located, for the purpose of any Proceeding between the parties arising in whole or in part under or in connection with this Agreement, including, without limitation, the enforcement of any lien, (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding, any claim that it is not subject personally to the jurisdiction of the above‐named courts, that its property is exempt or immune from attachment or execution, that any such Proceeding brought in one of the above‐named courts should be dismissed on grounds of forum non conveniens, should be transferred or removed to any court other than one of the above‐named courts, or should be stayed by reason of the pendency of some other Proceeding in any other court other than one of the above‐named courts, or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby agrees not to commence any such Proceeding other than before one of the above‐named courts. Notwithstanding the previous sentence, a party may commence any Proceeding in a court other than the above‐ named courts solely for the purpose of enforcing an order or judgment issued by one of the above‐named courts. Service of process by certified mail, return receipt requested, postage prepaid and addressed to Client shall be sufficient to confer jurisdiction on any of the above‐named courts, regardless of where Client is geographically located or does business. At Flyaero’s election, service of process and of judgment may also be made pursuant to any applicable international treaty or convention.
16. FLYAERO REMEDIES
16.1. Nonpayment: In the event Client fails to make full payment when due, Flyaero reserves the right to charge Client interest on the unpaid amount at the Agreed Rate. In addition, Flyaero, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the provision of Services or Goods until such payment is received and may decide not to accept additional orders from Client and/or seek collection of all amounts due. Flyaero shall have no liability to Client for any such suspension or termination of the provision of Services or Goods or for the non‐acceptance of orders.
16.2. Liens. In the event Client fails to make full payment when due, Client, either as owner of the aircraft for which Services or Goods are purchased or as duly authorized agent of the owner who is lawfully possessed of the aircraft with the owner’s express consent to purchase Services or Goods for the aircraft, in addition to all other rights and remedies, hereby authorizes Flyaero to file a lien for any and all unpaid charges and acknowledges and agrees that Flyaero may invoke any and all statutory or equitable lien rights (or those of any participating aviation merchants) in connection with the enforcement of Flyaero’s right to payment under this Agreement. In recognition of the international and mobile nature of aviation and aircraft, and the necessity for legal certainty, predictability and convenience, and to avoid filing liens in multiple jurisdictions, any lien filed by Flyaero shall be based, at Flyaero’s sole discretion, either upon the aircraft and/or property lien statute of the Commercial Code of the United Arab Emirates Federal Law concerning moveable assets, as may be amended, or the applicable aircraft lien statute of the country in which the aircraft is registered, regardless of where (i) the Client resides or does business, (ii) the aircraft owner resides or does business, (iii) the aircraft was at the time such charges were incurred, (iv) the aircraft is registered, or (v) jurisdiction may otherwise be proper. If for any reason Flyaero cannot file a lien pursuant to the aircraft and/or property lien statute of the Commercial Code of the United Arab Emirates Federal Law concerning moveable assets, as may be amended, or the applicable aircraft lien statute of the country in which the aircraft is registered, Client, either as owner of the aircraft for which Services or Goods are purchased or agent for the owner of the aircraft who is lawfully possessed of the aircraft with the owner’s express consent to purchase Services or Goods for the aircraft, grants Flyaero first priority security interest in the Services or Goods purchased until full payment therefor is made, and a lien on and security interest in such Services or Goods have been provided. This Agreement constitutes a security agreement for purposes of the Uniform Commercial Code and Flyaero has the right to file any documents, including financing statements under the Uniform Commercial Code, relating to the subject Services or Goods without Client’s signature in order to perfect Flyaero’s security interest therein. If the debt remains unpaid, Flyaero may institute an action(s) to foreclose the lien and to collect the debt.
16.3. Costs and Expenses of Enforcement: Client will be liable to Flyaero for all costs and expenses incurred by Flyaero or other Persons on Flyaero’s behalf in exercising its rights under this Agreement, including costs and expenses associated with lien preparation and filing, collection (including costs and expenses of collection agencies), and litigation (including, but not limited to, late charges, attorney fees, court and discovery costs), and any and all other costs incurred by or on behalf of Flyaero in enforcing its rights hereunder.
17.1. Third‐Party Beneficiaries: Except as otherwise provided herein, Affiliates of Fly Aviation Services and Flyaero Service Partners are third party beneficiaries of all rights of Flyaero and all duties owed by Client to Flyaero under Article 8 and Article 9 Except as provided in the preceding sentence, the provisions of this Agreement are for the benefit of the parties to this Agreement and not for the benefit of any other parties.
17.2. Modification: Except as otherwise specifically provided in this Agreement, no waiver, alteration, or modification of this Agreement shall be binding unless in writing and signed by an officer of Flyaero and a duly authorized representative of Client.
17.3. Assignment: Neither party may assign this Agreement or any interest herein without prior written consent of the other party; provided, however, Flyaero may assign this Agreement to an Affiliate and may pledge or otherwise mortgage for financing purposes sums due hereunder.
17.4. Language: This Agreement is executed and made in the English language, which shall be the official and governing language of this Agreement, and of all communications, transactions, and proceedings related hereto.
17.5. Invalid Provision: In the event any provision of this Agreement shall be held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The parties hereby agree that any invalid provision shall be judicially reformed so as to effectuate as nearly as possible the intentions and purposes of the parties.
17.6. Headings: Article and Section headings of this Agreement are for convenience only and are not to be used to explain, modify, amplify or interpret this Agreement.
17.7. Waiver: All rights of Flyaero hereunder are separate and cumulative, and no one of them, whether or not exercised, shall be exclusive of any other rights hereunder or any rights which Flyaero may have at law or in equity. No waiver by either party of any default hereunder shall be deemed a waiver of any other default hereunder.
17.8. Interpretation: Each of the parties to this Agreement has participated jointly in the negotiation and drafting of this Agreement. In the event any ambiguity or question of interpretation arises, this Agreement and the other documents and instruments executed in connection with this Agreement shall be construed as if drafted jointly, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provision of this Agreement or such other documents and instruments. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person.
17.9. Terms Generally: The words “hereby,” “herein,” “hereof,” “hereunder” and words of similar import refer to this Agreement as a whole and not merely to the specific article, section, paragraph or clause in which such word appears. All references in this Agreement to Articles or Sections are references to Articles or Sections of this Agreement unless the context otherwise requires. The words “include”, “includes” and “including” are deemed to be followed by the phrase “without limitation,” except to the extent already so followed. The definitions given in this Agreement apply equally to both the singular and plural forms of the terms defined. Whenever the context requires, any pronoun includes the corresponding masculine, feminine and neuter forms.
17.10. Entire Agreement; Purchase Orders: This Agreement, including the documents referred to herein, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof. Client’s acceptance of this Agreement is expressly limited to the terms of this Agreement. Client acknowledges and agrees that (A) any revision(s) to this Agreement, when delivered by Flyaero shall be deemed accepted and effective upon subsequent use of any Services or Goods and (B) all purchase orders of Client shall be subject to this Section 17.10. Flyaero expressly objects to the inclusion of any different or additional terms proposed by Client by purchase order or otherwise, and if they are included in a purchase order or otherwise, a contract will result only upon Flyaero’s terms stated herein. Flyaero’s provision of Services under Client’s purchase order or inclusion of the corresponding purchase order number on Flyaero’s invoices shall not constitute Flyaero’s acceptance of additional or different terms, including any pre‐printed terms on such purchase order. Client agrees that any purchase order, now existing or hereafter issued by Client, is for Client’s own internal convenience and shall have the following language automatically incorporated therein: “The terms and conditions set forth in Flyaero’s Agreement for Services and Goods, are made a part of this purchase order and replace all contrary terms and conditions, express or implied, in this purchase order. The terms and conditions set forth in Flyaero’s Agreement for Services and Goods are also applicable for all renewals or replacements of this purchase order.”
17.11. Facsimile Execution: Fax or other electronically transmitted text communications are deemed to be original writings of the parties for the purposes of this Agreement.
18.1. “Affiliate(s)” means, with respect to any specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or holds a voting equity interest in (whether or not controlling), the Person specified. For purposes of this definition, “control” (including the correlative terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting equity interest, by contract or otherwise.
18.2. “Agreed Rate” shall mean the lesser of 3% per month, or the maximum rate of 10%, and any interest which is in excess of such rate shall not be deemed interest and shall be automatically applied to the principal debt amount and the effective rate of interest shall be automatically reduced to such maximum rate.
18.3. “Agreement” shall have the meaning provided in Section 1.2.
18.4. “Client” shall have the meaning provided in Section 1.2.
18.5. “Client Selected Service Providers” shall mean any Person selected by the Client that provides services or goods to Client pursuant to this Agreement other than Flyaero and Flyaero Service Partners.
18.6. “Goods” shall have the meaning provided in Article 2.
18.7. “Losses” shall have the meaning provided in Section 9.3.
18.8. “Person” means any individual or corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization or other entity of any kind.
18.9. “Proceeding” shall have the meaning provided in Section 9.3.
18.10. “Released Party” or “Released Parties” shall have the meaning provided in Section 9.3.
18.11. “Services” shall have the meaning provided in Article 2.
18.12. “Flight Support Services” shall have the meaning provided in Section 2.1.
18.13. “Flyaero” shall mean Fly Aviation Services a limited liability company based in Dubai and its Affiliates, collectively, unless the context otherwise requires.
18.14. “Flyaero Ground Support Services Location(s)” shall mean Flyaero branded ground support services location either, without limitation owned partly, fully, contracted, subsidized, by Flyaero that provides Services or Goods to Client pursuant to this Agreement on behalf of Flyaero.
18.15. “Flyaero Service Partners” shall mean any Person specifically assigned by Flyaero that provides Services or Goods to Client pursuant to this Agreement other than Flyaero.