Colt Card Members are subject to the following Terms and Conditions
- Application.
These General Terms and Conditions shall apply to all transactions between Customer and either Colt International, LLC; Colt International Europe, SARL; or Colt International das Américas Serviços de Aviação Ltda. References to Colt hereunder shall include, as appropriate, each of the foregoing entities. Without limitation, these General Terms and Conditions shall apply (a) to all of Customers purchases of aviation fuel and/or flight services from Colt and (b) to any guaranty executed on behalf of Customer for Colt's benefit.
- Prices.
Pricing and other charges for aviation fuel and flight services shall be established from time to time by Colt. If not agreed upon at the time of request, prices for aviation fuel and flight services shall be determined by Colt in its reasonable discretion. Unless Customer is otherwise notified by Colt, all charges for aviation fuel and flight services will be in US Dollars. All payments not received by the due date shall bear interest at the lesser of 12% per annum or the maximum legal rate. Without limitation to any other remedy to which Colt may be entitled hereunder, Colt shall additionally be entitled to recover all costs and expenses of any kind or character incurred in collecting any past due invoices, including attorney fees and expenses and all costs of arbitration, including arbitrator s fees.
- Additional Charges.
Customer also agrees to pay Colt an administrative fee equal to 10% of all non-aviation fuel items charged on the Colt Contract Fuel Program. Customer further agrees to pay, discharge and/or reimburse Colt for (i) cash and credit advances and fees; and (ii) all additional third party charges and disbursements incurred for Customer's benefit.
- Taxes.
Customer shall also pay to Colt all governmental taxes, excises, duties and/or other charges now or hereafter assessed, imposed or levied relative to the aviation fuel or the flight services.
- Disputed Invoices.
Unless disputed in writing by Customer within 45 days of the invoice date, all invoices shall be deemed correct and accepted by Customer. All disputes shall be forwarded to Colt by hand delivery or fax.
- Third Party Providers.
Colt has developed and continues to develop a worldwide network of persons and entities to provide aviation fuel and flight services requested by Customer (a Third Party Provider). Each Third Party Provider is an independent contractor and Colt does not have the right to supervise and does not supervise details of its operations. Colt shall not be liable for the acts and omissions of any such Third Party Provider. Colt's sole obligation shall be to use ordinary care in the selection of any such Third Party Provider. Customer will provide Colt with immediate notice of any dispute with a Third Party Provider. If Colt has paid the Third Party Provider prior to receiving Customer s notice of dispute, Customer shall pay Colt in full, subject to subsequent credit or refund from Colt to the extent of any refund or credit received from the Third Party Provider. In no event, however, shall Customer be relieved of its obligation to timely pay all undisputed portions of the invoice.
- Lien Rights.
In the event Customer fails to make full payment when due, Customer acknowledges and agrees that Colt (or any affiliated company) may, in addition to all other rights and remedies, invoke any and all statutory or equitable lien rights or those of any participating aviation merchants in connection with the enforcement of Colt's right to payment under this Agreement, and hereby authorizes Colt to file a lien for the unpaid charges, plus late fees at 12% APR, aircraft title search fees, filing fees, collection costs and attorney fees, against any aircraft for which charges were incurred and made to Customer's Colt account. Customer represents and warrants that Customer either owns the aircraft for which goods and services are purchased, or is lawfully possessed of the aircraft with the owner's express consent to purchase goods and services for the aircraft on credit provided by Colt. Customer agrees to indemnify and hold Colt harmless from and against any and all claims arising out of Colt s filing or enforcement of a lien against the aircraft. If the debt remains unpaid, Colt may institute an action against the Customer (and/or the aircraft owner) to foreclose the lien and to collect the debt. 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 Colt shall be based, at Colt s sole discretion, either upon the aircraft lien statute of the State of Texas, Texas Property Code § 70.301 et al, or the applicable aircraft lien statute of the foreign country in which the aircraft is registered, regardless of where (a) the Customer resides or does business, (b) the aircraft owner resides or does business, (c) the aircraft was at the time such charges were incurred, (d) the aircraft is registered, or (e) jurisdiction may otherwise be proper. The Customer will be liable to Colt for all costs and expenses of lien preparation and filing, collection and litigation including, but not limited to, late charges, attorney fees, court and discovery costs and/or other costs incurred by Colt in enforcing its rights hereunder. Customer agrees that venue for enforcement of this Agreement and any lien shall be in the state courts of Harris County, Texas, USA, regardless of diversity issues or amounts owed. By Customer s use of Customer s Colt account, Customer waives all objections to the foregoing choice of law or forum. Service of process by certified mail, return receipt requested, postage prepaid and mailed to Customer at the address on the application shall be sufficient to confer jurisdiction regardless of where Customer is geographically located or do business.
- Force Majeure.
Colt shall be excused from performing any obligation to Customer if Colt's performance is delayed or precluded by one or more conditions beyond Colt's reasonable control. In no event shall such condition excuse Customer's payment for aviation fuel or flight services that have been provided to Customer.
- Delivery, Title, and Risk of Loss.
All sales of aviation fuel shall be either Into Wing or Into Storage transactions. As used hereunder, Into Wing means that (a) the aviation fuel shall be delivered into the fuel tanks of Customer's aircraft and (b) title to and risk of loss for the aviation fuel delivered hereunder shall pass from Colt to Customer after the aviation fuel has passed through the connecting hoses into the fuel tanks of such aircraft. As used in this Contract, Into Storage means that (a) the aviation fuel shall be delivered into storage into the appropriate storage tank(s) at or near the designated airport and (b) title to and risk of loss for the aviation fuel delivered hereunder shall pass from Colt to Customer after the aviation fuel has passed through the connecting hoses into the appropriate storage tank(s).
- Disclaimer.
COLT MAKES NO WARRANTY OR REPRESENTATION, OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO AVIATION FUEL OR FLIGHT SERVICES PROVIDED TO CUSTOMER HEREUNDER. COLT EXPRESSLY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL WARRANTIES, GUARANTEES, OBLIGATIONS, LIABILITIES, RIGHTS AND REMEDIES WITH RESPECT TO ALL AVIATION FUEL AND FLIGHT SERVICES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO (a) AN IMPLIED WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE OR (c) ANY IMPLIED WARRANTY OF FITNESS. UNLESS CAUSED SOLELY BY COLT'S GROSS NEGLIGENCE, COLT SHALL HAVE NO LIABILITY TO CUSTOMER RELATIVE TO ANY CLAIM, LOSS OR DAMAGE, OF ANY KIND OR CHARACTER, ATTRIBUTABLE TO THE AVIATION FUEL OR FLIGHT SERVICES. IN NO EVENT SHALL COLT BE LIABLE TO CUSTOMER FOR EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS. IT SHALL BE THE RESPONSIBILITY OF CUSTOMER TO MAKE ANY AND ALL INSPECTIONS AND INVESTIGATIONS AS CUSTOMER DEEMS NECESSARY TO ASCERTAIN THE INTEGRITY, FITNESS OR SUITABILITY OF AVIATION FUEL OR FLIGHT SERVICES HEREUNDER. IF, DESPITE THE FOREGOING, COLT IS NONETHELESS HELD LIABLE FOR DAMAGES TO CUSTOMER, COLT'S AGGREGATE LIABILITY TO CUSTOMER SHALL IN NO EVENT EXCEED THE PRICE OF THE AVIATION FUEL AND/OR SERVICES ACTUALLY PAID BY CUSTOMER TO COLT FOR THE SPECIFIC SALE THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION OF LIABILITY PROVISIONS ARE AN ESSENTIAL ELEMENT OF THESE TERMS AND CONDITIONS AS, IN THE ABSENCE OF SUCH PROVISIONS, THE PRICES AND OTHER TERMS AND CONDITIONS HEREIN WOULD BE SUBSTANTIALLY DIFFERENT.
- Indemnity.
Excepting only claims attributable solely to Colt's gross negligence, Customer shall indemnify and hold Colt harmless from any and all claims of any kind or character against Colt (including Colt s officers, directors, employees, agents, servants, and attorneys) attributable, directly or indirectly, to aviation fuel or flight services provided to Customer or Colt s attempts to collect payment on this account. For purposes hereof, gross negligence means acts or omissions by Colt constituting a willful indifference to Customer or Customer s property.
- Export Control.
THE WORD RESTRICTED COUNTRY SHALL MEAN THE COUNTRIES LISTED IN COUNTRY GROUPS Q, S, W, Y, AND Z IN SECTION 770 SUPPLEMENT NO. 1 OF THE EXPORT ADMINISTRATION REGULATIONS OF THE UNITED STATES (15 D.F.R. PART 770) CUSTOMER EXPRESSLY AGREES NOT TO RE-EXPORT AND SHALL NOT DIRECTLY OR INDIRECTLY RELEASE OR MAKE AVAILABLE ANY AVIATION FUEL OR FLIGHT SERVICES PROVIDED TO CUSTOMER FROM COLT TO ANY RESTRICTED COUNTRY OR ENTITY IN A RESTRICTED COUNTRY (OR ANY OTHER COUNTRY AS MAY BE DESIGNATED FROM TIME TO TIME BY THE UNITED STATES DEPARTMENT OF COMMERCE, OR ANY UNITED STATES LAW, RULE, REGULATION OR ORDER, OR ANY TREATY) OR FOR USE IN SERVICING EQUIPMENT OWNED, CONTROLLED OR USED BY SUCH MILITARY OR POLICE ENTITIES.
- Exclusive Benefit.
The aviation fuel and flight services provided hereunder are for the sole and exclusive use of Customer. Customer may not transfer any such aviation fuel or flight services to any third party or allow any third party to access or use such aviation fuel or flight services.
- Arbitration/Governing Law.
(a) All transactions between Customer and Colt International Europe, SARL shall be governed by Swiss law. Any dispute, controversy or claim arising out of or relating to the Customer's purchase of aviation fuel or flight services from Colt International Europe, SARL or with respect to the Customer's Account Agreement, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration in accordance with the applicable Rules of Arbitration of the Geneva Chambers of Commerce and Industry in force on the date when the Notice of Arbitration is submitted (herein the Rules) in accordance with the Rules. For Customers with their domicile within Switzerland the then-current version of the Rules of Arbitration of the Geneva Chamber of Commerce and Industry (CCIG) shall apply. For Customers domiciled outside Switzerland, the then-current version of the Swiss Rules of International Arbitration shall apply. The number of Arbitrators shall be three, appointed in accordance with the Rules. In all cases, each arbitrator shall be impartial and independent of the parties and their legal counsel. The seat of the arbitration shall be Geneva, Switzerland, unless the parties agree on a different seat. The arbitral proceedings shall be conducted in the English language. (b) All transactions between Customer and Colt International, LLC shall be governed by the laws of the State of Texas. Any and all disputes, controversies, or claims arising out of or relating to Customer's purchase of aviation fuel or flight services, including without limitation, claims based on contract, tort, or statute, shall be determined by arbitration in Houston, Harris County, Texas before a panel of three arbitrators. In rendering the award, the arbitrators will determine the rights and obligations of the parties in accordance with the substantive law of Texas as though acting as a court in a civil action in Texas. Except as otherwise set forth herein, these proceedings shall be governed by the provisions of the American Arbitration Association. Either party, as the demanding party, may initiate arbitration by giving the other party a written demand for arbitration (the Demand). The Demand shall contain a statement of the demanding party's position as to the matters in dispute, the amount of the claim, and the remedy sought. The other party, as the responding party, shall file a response (the Response ) within ten days from his receipt of the Demand. The Response shall contain a statement of the responding party's position as to the matters in dispute, including any defenses and/or cross-claims. Within seven days from his receipt of the Response, the demanding party shall file a reply as to any cross-claims in the Response. The initial arbitrator shall be designated and identified by the demanding party in the Demand. The second arbitrator shall be designated by the responding party in the Response. Within ten business days from the date the Response is served, the two arbitrators so selected shall select the third arbitrator. If the two arbitrators fail to agree on the selection of a third arbitrator, any party or arbitrator may apply to a state district judge in Harris County, Texas to select the third arbitrator. Any decision on an issue submitted to arbitration may be made by a majority of the arbitrators. The arbitration proceedings shall commence within 90 days from the date all arbitrators are appointed. Any arbitrator appointed hereunder must agree, as a condition of service, that the arbitration proceedings will be commenced within said time period. If a party fails or refuses to appear or participate in the arbitration, or in any portion of the arbitration, after having been given notice and opportunity to participate as provided in this agreement, the arbitration will proceed and the arbitrators may render a final award on the basis of the evidence presented by the participating party. If the responding party fails to file a Response or designate a second arbitrator, these proceedings may be conducted before the initial arbitrator whose findings shall be binding. An award rendered under such circumstances is valid and enforceable as if all parties had participated fully. In no event shall Customer be entitled to recover attorney fees or expenses or other expenses of this arbitration. The arbitration award shall be in writing, signed by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction over the parties. (c) All transactions between Customer and Colt International das Américas Serviços de Aviaç´o Ltda, shall be governed by Brazilian Law and any dispute hereunder shall be settled by the Courts of the City of S´o Paulo, State of S´o Paulo, Brazil.
- Amendments.
Colt may amend these terms and conditions at any time upon notice to Customer. Such amended terms and conditions will apply to all subsequent transactions with Colt.
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