ALL PRICES, SERVICES, PURCHASE ORDERS, INVOICES, AND OTHER SALES AND CREDIT TRANSACTIONS WITH FLO FLIGHT LLC (“Flo Flight”) ARE SUBJECT TO THESE CONDITIONS, WHICH MAY BE CHANGED WITHOUT NOTICE.
Agreement
The following sets forth Flo Flight’s Terms and Conditions of Sale (“Conditions”) as of the Effective Date. Buyer agrees to and is bound to these Conditions set forth in this Agreement by submitting a New Account Application, Purchase Order, or Invoice Payment to Flo Flight. Flo Flight may amend these Conditions from time-to-time without notice. In the event of a conflict between these Conditions and the terms of another written agreement signed by Flo Flight and Buyer, the conflicting terms of the later dated document control.
In addition to the statements made in the definitions below, these Conditions apply to any offer, acceptance, acknowledgment, invoice, proposal, quotation, or other similar document issued by Flo Flight in connection with a sale of Services to Buyer. These Conditions also apply to any Purchase Order or other similar document issued by Buyer in connection with the purchase of Services from Flo Flight, unless the parties expressly agree to the contrary in a writing signed by the Parties. Any terms or conditions stated by Buyer in any Purchase Order that are different from, or in addition to, the Agreement will be void and of no force or effect and are hereby expressly objected to and rejected. Flo Flight is not obligated to accept any Purchase Order from Buyer and all orders are subject to acceptance by Flo Flight. Once Flo Flight agrees to fill an order for Services, Buyer’s order cannot be cancelled without Flo Flight’s written consent. All sales of Services to Buyer are nonreturnable and nonrefundable.
Payment Terms
Unless different terms are agreed to in writing by Flo Flight, all Buyer’s Purchase Orders issued to Flo Flight shall be prepaid via ACH bank transfer, wire transfer, cashier's check, or debit or credit card payment (with an additional convenience fee).
If Buyer pays via ACH bank transfer, or debit or credit card payment, Buyer agrees to allow Flo Flight to process future Purchase Orders via the same method and account. Buyer agrees to allow Flo Flight to store Buyer's financial account information to automatically process such orders. Buyer may update payment method via account settings. If Buyer fails to maintain a sufficient balance or credit line in the account that Flo Flight has on file and charges, Buyer will be solely responsible for any and all associated penalties, fees, or surcharges imposed by Buyer's financial institution.
Buyer further agrees to pay Flo Flight a late charge on any past due amounts at the rate of one and a half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
In the event that Buyer is past due in payment of any amounts owed, whether invoiced or not, Flo Flight may place Buyer's account into credit hold status. While in credit hold status, any pending services or access may be suspended at Flo Flight’s sole discretion. Receipt by Flo Flight of payment in full for all outstanding balances, including any late fees or associated penalties, is required for Flo Flight to consider removing an account from credit hold status.
Buyer will pay all costs and expenses (including attorneys’ fees) incurred by Flo Flight in collecting any amounts owed by Buyer. Buyer hereby waives any existing and future claims and offsets against payments due for the purchase of any and all Services and agrees to pay all amounts due regardless of any such offset or claim.
Costs of Collection
If Buyer fails to timely pay in accordance with these Conditions, Buyer shall be responsible to reimburse Flo Flight for all costs of collection. If Flo Flight retains or employs attorneys or other agencies in order to secure payment of any sums due from Buyer, or otherwise enforce these Conditions or any credit agreement, Buyer agrees to pay attorney and/or collection fees, costs, and any and all other related expenses in addition to all sums due.
Taxes
The prices Flo Flight establishes for its Services do not include any applicable taxes of any kind, including (but not limited to) sales, use, value-added, excise or withholding taxes or any customs, duties or fees, which Buyer shall be responsible for paying. Buyer shall pay when due all taxes and governmental charges of any kind including without limitation all sales, use, personal property, ad valorem, value added, stamp or other taxes, levies, customs duties or other similar charges or fees (other than any taxes based on Flo Flight’s net income), imposed by any government or government agency on the Services (or the use thereof) as a direct or indirect result of the transactions hereunder (“Tax”). Buyer will indemnify and hold Flo Flight harmless against any such taxes, duties or fees and shall reimburse Flo Flight upon demand for any Tax owed by Buyer that is paid by Flo Flight, whether such Tax is designated, levied or based on transactions hereunder.
DISCLAIMER OF WARRANTY
FLO FLIGHT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS AGREEMENT OR ITS SERVICES, AND FLO FLIGHT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENTAND THE SERVICES AND ANY OTHER MATERIALS OR INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
LAWS FROM TIME TO TIME IN FORCE IN THE RELEVANT MARKET MAY IMPLY WARRANTIES WHICH CANNOT BE EXCLUDED OR WHICH CAN ONLY BE EXCLUDED TO A LIMITED EXTENT, IN WHICH CASE, FLO FLIGHT LIMITS ITS WARRANTIES AND LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT WILL FLO FLIGHT OR ANY OF ITS SUPPLIERS, OR AGENTS BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES FOR ANY ACT OR OMISSION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR WITH THE SALE, HANDLING, MAINTENANCE, STORAGE, TRANSPORTATION, DELIVERY, USE OR DISTRIBUTION OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSSES, EXPENSES, OR DAMAGES INCURRED BY REASON OF LOST REVENUES OR PROFITS, COSTS OF SUBSTITUTE SERVICES, EXPENSES OR LOSSES, EVEN IF FORESEEABLE OR IF FLO FLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABLITY
Flo Flight shall not be liable to Buyer or to any third party for any special, indirect, incidental or consequential damages nor for any injury to persons or property, under any claim or theory of recovery. The entire liability of Flo Flight to Buyer, and the sole and exclusive remedy of Buyer, for any claim or cause of action arising hereunder (whether in contract, tort, or otherwise) will not exceed the purchase price paid for the Services which are the subject of such claim or cause of action. Flo Flight will not have any tort liability to Buyer arising from this Agreement including claims relating to negligence or defects in the Services. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material to this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.
NO TAX ADVICE
FLO FLIGHT IS NOT A LAW FIRM, CPA, ACCOUNTANT, OR OTHER TAX ADVISOR. THE SERVICES PROVIDED ARE A UTILITY WHICH MAY BE USED BY YOU AND YOUR TAX ADVISORS. YOU MAY NOT RELY UPON THE SERVICES FOR ANY LEGAL OR TAX ADVICE. FLO FLIGHT ADVISES YOU TO SEEK OUT COMPETENT PROFESSIONALS TO PROVIDE YOU WITH TAX GUIDANCE.
Indemnity
Buyer agrees to indemnify, defend and hold harmless Flo Flight and its employees, officers, directors, and agents from and against any and all losses, claims, suits, demands, damages, costs, expenses, attorneys’ fees, fines, and penalties that result from or arise out of (i) an actual or alleged defect in the Services; (ii) any misconduct, negligence, misrepresentation, error or omission on the part of Buyer or Buyer's employees, subcontractors or agents; and (iii) any breach by Buyer or default of Buyer of any of its representations, warranties or obligations under this Agreement.
Returns
All sales are FINAL.
Relationship
The Parties are acting independently and shall at all times act as an independent contractor of each other in the sale of the Services and are not partners, joint venturers, agents, or legal representatives or agents of each other for any purpose. Neither party shall have any right or power to act for or bind the other, in any respect, to pledge its credit, to accept any service of process upon it, or to receive any notices of any nature whatsoever.
No Assignment
Flo Flight may assign this Agreement, its duties, or its benefits at any time without notice. Buyer may not assign this Agreement, its duties, or its benefits to anyone else without Flo Flight’s prior written consent.
Amendments
These Conditions are subject to revision, amendment or supplement by Flo Flight from time to time, and such revision, amendment or supplement shall be binding upon Buyer.
Entire Agreement
Subject to the definition of Agreement below, this Agreement is the complete and entire agreement between Flo Flight and Buyer regarding the purchase of Services. This Agreement supersedes any prior or contemporaneous discussions, communications and agreements, including but not limited to representations made in Flo Flight sales literature and advice given to Buyer by Flo Flight or any agent or employee thereof that may have been made in connection with Buyer's purchase of any Services from Flo Flight. This Agreement is subject to change without notice by Flo Flight. This Agreement is further subject to modification as Flo Flight may deem necessary or appropriate to comply with federal and/or state laws, rules and regulations, and any other restrictions applicable to the Services and transactions related thereto.
Disputes
Governing Law – These Conditions, this Agreement and all other questions arising hereunder or pursuant to the parties' transaction shall be governed and determined by the laws of the State of Utah, excluding its conflict of laws provisions.
Waiver – Flo Flight may waive (or forgive liability) of any breach (or failure) by Buyer to abide by any of these Conditions. However, no waiver is valid unless it is in writing and signed by Flo Flight. Also, waivers apply only to specifically identified failures and do not give Buyer permission to breach Conditions at other times.
Internal Resolution – If you have concerns or claims with respect to your Purchase Orders or these Conditions, email info@floflight.com. Flo Flight will investigate and attempt to promptly resolve any complaints.
Disputed invoices. If Buyer disputes an invoice in good faith, Buyer shall promptly notify Flo Flight in writing of the grounds for the dispute and pay any undisputed portion of the invoice. The Parties shall use commercially reasonable efforts to resolve the matter within fifteen (15) calendar days of such notice.
Force majeure. Flo Flight may suspend the Services under this Agreement and shall be released from its obligations if, and to the extent that any delay or failure to perform such obligations, is due to fire or other casualty, product or material shortages, strikes or labor disputes, transportation delays, change in business conditions (other than insignificant changes), or delivery disruptions, acts of God, seasonal supply disruptions, government action, or other causes beyond the reasonable control of Flo Flight.
Arbitration – If your complaint cannot be resolved through our internal process, you agree to resolve your complaint through arbitration. If arbitration is necessary, it will be conducted by telephone and email, and if it must be done in person, it will be conducted in Salt Lake City, UT. The arbitration will be conducted an arbitrator from the American Arbitration Association, and under the rules of commercial arbitration of that association, to the extent they’re not inconsistent with these Terms. Both parties will equally share the cost of arbitration. Attorney fees will be awarded to the prevailing party. All decisions of the arbitrator will be final and binding on both parties and enforceable in any court of competent jurisdiction. For additional information you may visit www.ADR.org.
Court – If, for whatever reason, arbitration is unenforceable, lawsuits must be brought before a court in the State of Utah. Attorney fees will be awarded to the prevailing party.
Severability – If, for whatever reason, an arbitrator or court of competent jurisdiction finds any part of these Conditions to be unenforceable, all other parts will remain in force, and a valid provision which most closely approximates the intent and economic effect of the invalid provision shall be substituted for the invalid provision.
Rights and Remedies – The rights and remedies expressly provided to Flo Flight herein are not exclusive, but are cumulative and in addition to any other remedies at law or equity.
Limitations Period – With the exception claims by Flo Flight arising from unpaid invoices, any claim(s) between the Parties arising out of this Agreement shall be brought within one year after the accrual of such claim(s). Any such claims not brought within one year of accrual are waived and forever barred.
Updates
Buyer has a responsibility to review these Conditions periodically. Flo Flight may revise these Conditions at any time. If Flo Flight makes a change to these Conditions that, in its sole discretion, is material, Flo Flight will update this webpage and may send an email to the address associated with Buyer's account. By continuing to place orders on this website or Flo Flight’s mobile application after those changes become effective, Buyer agrees to be bound by those changes regardless of whether Flo Flight has issued an email notification.
Definitions
As used in these Terms and Conditions of Sale:
“Agreement” means the version of Flo Flight’s Conditions as of the Effective Date, together with the terms of any credit application and/or credit agreement executed by Buyer and any other agreements, Purchase Orders, invoices signed (or accepted) by Flo Flight and Buyer or oral agreements relating to Services sold or distributed by Flo Flight to Buyer;
“Buyer” means any person, firm, company or entity to whom Flo Flight actually or prospectively supplies or distributes any Services, including (but not limited to) New Account Applicants;
“Conditions” means the terms and conditions set out herein (and as amended from time to time by Flo Flight) and any other conditions and/or terms of sale set out or referred to in Flo Flight’s acknowledgement of order;
“Effective Date” means later of the Revision Date, the date of Buyer’s execution of the New Account Application or the Buyer’s last purchase transaction with Flo Flight;
“Invoice Payment” means any payment submitted by Buyer to Flo Flight for the payment of Services by Buyer from Flo Flight, whether or not Buyer was invoiced in writing or orally;
“New Account Application” means the document signed by a Buyer required to open an account with Flo Flight in order for Buyer to purchase Services;
“Parties” means the Buyer and the Flo Flight collectively. “Party” means either Buyer or Flo Flight, as may be determined by its context;
“Services” means any services Flo Flight agrees to sell or distribute to the Buyer (including any part or parts of them);
“Purchase Order” means any order, whether written or oral, submitted by Buyer to Flo Flight for the purchase of Services;
“Revision Date” means the above stated date when these Conditions were last updated; and
“Flo Flight” means Flo Flight LLC, a Utah limited liability company.
