Terms And Conditions Of Training (Individual Pilot)
These Terms and Conditions of Training will be applicable between Flight Training International, Inc., a Texas corporation, with an address at 3401 Quebec Street, Suite #10000, Denver, Colorado 80207 (hereinafter referred to as “FTI”), and the person contracting for training services (“Student”). By accepting these Terms and Conditions of Training by signing below, paying the invoice issued in connection herewith or by enrolling in a training class or classes, Student explicitly consents or agrees to these Terms and Conditions of Training and is bound by the provisions hereof.
1. TRAINING AND PAYMENT
a. Training. The training (“Training”) shall consist of those flight training services as requested by Student and provided by FTI. The specific Training to be provided, the dates therefor, and the tuition, fees and other costs thereof, shall be memorialized in one or more invoice(s) (“Invoice”) from FTI to Student. Unless Student objects in writing to an Invoice within five (5) business days from the receipt thereof, the terms and provisions of the Invoice shall be deemed to be accepted by Student and shall become incorporated herein and made a part hereof. The terms and provisions of any Student purchase order, acceptance form issued in response to the Invoice, or any other form issued by Student, shall not be binding upon the parties without the express written acceptance of FTI. FTI reserves the right to refuse any request for Training in its sole discretion. FTI has devised its training program to be effective, but FTI cannot be responsible for the failure of Student to be successful at any or all levels. FTI reserves the right to alter and amend the description and curriculum as necessary to improve training efficiency and results. Student is responsible for meeting the prerequisites in Exhibit 1 for the rating or certificate sought. FTI relies on the information provided by Student, in Appendix 1 and Appendix 2 attached hereto which are required to be provided at the time of enrollment, to enroll that Student in a course appropriate for the Student’s level of experience. FTI believes, based upon the information provided to it by Student and assuming reasonable participation, motivation and skill on the part of the Student that Student will complete the training course and related certification. Providing materially false information regarding flight experience may result in being enrolled in a course that is not sufficient to achieve the related certification and in the case of flight logs, airman’s certificates, or other required documents may result in disenrollment, forfeiture of all tuition paid, and FAA certificate action.
b. Rates; Additional Costs and Fees. FTI shall provide the Training at the rates and location set forth in Appendix 3 (the Invoice). All ancillary costs to the Training, including but not limited to travel, meals, and lodging, shall be the exclusive responsibility of Student. In the event that any action taken by Student causes a delay which interrupts or delays the Training or if all prerequisites including those set forth on Exhibit 1 and all regulatory pre-training requirements (such as TSA clearance approvals), or in the event that Student postpones the Training Start Date, Student shall be responsible for all reasonable costs and expenses associated with such delay and related to the Training.
c. Payment. Amounts due for Training shall be payable as set forth on Appendix 3 (invoice). A 50% payment is due upon the signing of this contract. The remaining balance is due 48 hours after receipt of tentative schedule. No amounts payable hereunder shall be refundable except as set forth in the Cancellation Refund Policy below. All amounts due hereunder are net amounts, and Student agrees that it will be responsible for all sales, use or services taxes of any kind, with the exception of taxes due on FTI’s income. Any amount due hereunder that remains unpaid following the due date shall bear interest at the rate of one percent per month from the Invoice date. Notwithstanding any other provisions herein related to rights of termination for breach, FTI may suspend or terminate its obligation to perform Training under this Agreement during the period that any amount remains past due and, in such event, any Training dates may be rescheduled at the convenience of FTI.
2. LOCATION OF SERVICES
The Training shall be performed at such location or locations as specified on the Appendix 3 (invoice), as FTI in its sole discretion decides is appropriate for the effective and timely completion of the Training. Should Student decide to request a change to the scheduled training location, FTI will make reasonable efforts to accommodate such request subject to equipment and other resource availability. Such change may result in an increase in the costs from in the original Invoice and Student will be responsible for the payment of any additional cost prior to the date of the applicable Training.
3. INTELLECTUAL PROPERTY
FTI may deem it necessary, in the course of performing the Training, to use certain FTI documentation, proprietary training techniques, and proprietary software. FTI or its suppliers own such documentation, techniques and software and retain all rights, title and interest therein. Student shall not use or copy any FTI documentation, techniques or software except as explicitly provided in this Agreement. Student shall not permit any other person or entity to access the materials provided in connection with the Training and the materials shall not be used for any other purpose.
4. CONFIDENTIAL INFORMATION
a. Confidential Information. “Confidential Information” shall mean any information disclosed, including information disclosed prior to the date of this Agreement, in any form or manner, by FTI to Student, except: (i) any information Student can show was in its possession prior to its receipt from FTI; (ii) information which is or shall lawfully be published or become part of the public domain, through no act or omission on the part of (A) Student or (B) any other party having an obligation of confidentiality and nondisclosure to FTI; or (iii) information which shall otherwise lawfully become available to or be disclosed to Student from a source other than FTI or any of its shareholders or affiliated companies or licensors. Such Confidential Information includes, but is not limited to, FTI’s proprietary Training techniques, any Training materials provided to Student, FTI’s proprietary software, information relating to the processes, products, equipment, inventions, trade secrets, know-how, customer and supplier lists, independent contractor lists, contracts and licenses, personnel information, computer programs, and any other technical of FTI.
b. Obligations. Student agrees (i) not to use any Confidential Information for any purpose except pursuant to this Agreement, (ii) to hold in confidence and not disclose to any third party any Confidential Information received hereunder from FTI; and (iii) not use any Confidential Information received hereunder, in any way, directly or indirectly, for the benefit of anyone other than FTI. In addition, Student shall not disclose the terms and conditions of this Agreement to any third party, except as required by legal procedures or by applicable law. All Confidential Information will remain the property of FTI and will be returned to FTI upon termination of this Agreement or immediately upon request by FTI.
c. Injunctive Relief. Student hereby acknowledges and expressly agrees that any breach by it of this Agreement, which does or may result in loss of confidentiality of the Confidential Information, would cause irreparable harm to FTI for which money damages would not be an adequate remedy. Therefore, Student hereby agrees, that in the event of any threatened or actual breach of this Agreement by it, FTI will have the right to seek injunctive relief against threatened, continuing or further breach by Student, without the necessity of proof of actual damages or posting bond, even if otherwise required, in addition to any other right which FTI may have under this Agreement, any other agreements between the parties, or otherwise in law or in equity.
5. TERM
a. Cancellation of Training. Student may cancel the training at any time, subject to the Refund Policy below.
b. Termination for Cause. In addition to FTI’s right to terminate the Training for nonpayment as set forth above, either party may terminate this Agreement for cause in the event that (i) the other party breaches any of the provisions of this Agreement and fails to remedy such breach within thirty (30) days after written notice thereof; (ii) the other party becomes insolvent in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, reorganization of indebtedness or the like, and the proceeding is not terminated within sixty (60) days; or (iii) such party reasonably determines that the other party has violated any of its intellectual property rights or breached its obligation to hold in confidence any confidential information.
6. POSTPONEMENTS
Class dates may only be postponed by the Student with the consent of FTI, provided such consent shall set forth a deadline for a new start date, beyond which the start date will not be postponed. If the class is postponed beyond the deadline, then it will be treated as a Cancellation less than 30 days prior to Start Date. Both parties acknowledge and agree that FTI may postpone a class; provided, that if the class is postponed the notice of postponement will set forth a deadline for a new start date, beyond which the start date will not be postponed by FTI.
7. WARRANTY AND LIMITATION OF LIABILITY
a. No Warranties; Exclusive Remedy. IT IS EXPRESSLY UNDERSTOOD AND AGREED TO BY THE PARTIES HERETO ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR CONDITIONS OF QUALITY AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, ARE HEREBY EXCLUDED.
b. Exclusive Remedy. For any breach of the warranties contained herein, Student’s exclusive remedy, and FTI’s entire liability, shall be the correction of errors that caused breach of the warranty or return to Student of fees paid to FTI for the nonconforming Training.
c. Limitation of Liability. FTI SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. FTI DOES NOT WARRANT ANY RESULTS, INCLUDING BUT NOT LIMITED TO FAA CERTIFICATION, PILOT COMPETENCE, OR SAFETY, AS A RESULT OF THE TRAINING. ANY BUSINESS DECISION MADE BY STUDENT BASED UPON THE TRAINING SHALL BE THE SOLE DECISION OF THE STUDENT, AND FTI WILL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR SUCH DECISION, THE IMPACTS OF SUCH DECISION, OR THE FINANCIAL IMPACTS THEREOF. FTI SPECIFICALLY DISCLAIMS ALL LIABILITY ARISING FROM THE OPERATION OF ANY AIRCRAFT BY THE STUDENT. IN NO EVENT SHALL THE TOTAL LIABILITY OF FTI UNDER THIS AGREEMENT, FOR ALL CAUSES OF ACTION WHATSOEVER, EXCEED THE TOTAL AMOUNT PAID TO FTI BY STUDENT HEREUNDER.
d. Student Acknowledgement. Student acknowledges that the FTI training courses require dedicated work and studying of course materials outside of the formal classroom, simulator or flight sessions in order for Student to satisfactorily complete the training courses and any certifications.
8. RELEASE
STUDENT, FOR HIMSELF OR HERSELF, HIS OR HER HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, DOES HEREBY RELEASE, ACQUIT, DISCHARGE AND COVENANT NOT TO SUE FTI OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, STOCKHOLDERS, MANAGERS, AGENTS, ATTORNEYS, EMPLOYEES, SUCCESSORS AND ASSIGNS, WITH RESPECT TO ALL PAST, PRESENT AND FUTURE CLAIMS, EXPENSES, LOSSES, LIABILITIES AND OBLIGATIONS OF ANY NATURE WHATSOEVER, WHETHER ACCRUED OR CONTINGENT, KNOWN OR UNKNOWN, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BASED IN WHOLE OR IN ANY MATERIAL PART UPON WHICH MAY ACCRUE TO STUDENT AGAINST FTI FOR LOSS OF, DAMAGE TO, OR DESTRUCTION OF, ANY AIRCRAFT OWNED OR OPERATED BY STUDENT IN ANY MANNER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE TRAINING.
9. INDEMNIFICATION
STUDENT SHALL INDEMNIFY AND HOLD HARMLESS FTI AND ITS PERSONNEL FROM ANY PERSONAL INJURY OR PROPERTY DAMAGE OCCASIONED BY THE INTENTIONAL OR NEGLIGENT ACTS OF STUDENT OR THE PRESENCE OF STUDENT AT THE TRAINING LOCATION(S). STUDENT SPECIFICALLY UNDERSTANDS AND AGREES THAT PORTIONS OR ALL OF THE TRAINING MAY TAKE PLACE IN FLIGHT SIMULATORS OR OTHER FACILITIES OWNED AND/OR OPERATED BY THIRD PARTIES. THE INDEMNIFICATION SET FORTH ABOVE SHALL EXTEND TO SUCH THIRD PARTIES, AND SUCH THIRD PARTIES ARE SPECIFICALLY INTENDED TO BE THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
10. COMPLIANCE WITH LAWS
a. Aviation. Student represents, warrants and covenants that he/she shall comply with all laws and regulations applicable to the Training, and all requirements of international, federal, state or local law from time to time in effect, including, but not limited to, the rules and regulations promulgated by the Federal Aviation Administration (the “FAA”) and the Transportation Security Administration (“TSA”). Student shall obtain and maintain, at its expense, all licenses, permits and approvals necessary for Student to take the Training, including all TSA clearances and requirements for English proficiency. Student shall provide FTI with copies of any such licenses, permits and approvals upon request.
b. U.S. Foreign Corrupt Practices Act. The parties each warrant that with respect to this Agreement it has not made, nor will it make, pay money or offer, give, promise to pay or authorize the payment of anything of value to any official or employee of any government or agency or instrumentality thereof, any official of any political party, or any candidate for political office, for the purpose of influencing any act or decision, including any decision to perform or fail to perform official functions, or for purposes of inducing the use of influence to affect any act or decision by any such government or agency or instrumentality thereof, or to any other person knowing that all or a portion of such money or thing of value will be paid, offered, given or promised to any such government officials or employees, party officials, or political candidates, insofar as any of the above would violate the laws or regulation of any government having jurisdiction over the parties or the Agreement. Nothing contained in this provision shall prohibit legal payments.
c. Prohibited Transactions. The parties understand that federal regulations and Executive Orders administered by the Office of Foreign Assets Control (“OFAC”), the Department of Commerce’s Bureau of Industry and Security (“BIS”) and the Department of State prohibit, among other things, the engagement in transactions with, and the provision of services to certain foreign countries, territories, entities and individuals. Student represents and warrants that neither Student, nor any related person of Student, is a country, territory, person or entity named on any OFAC, BIS or Department of State list, nor is Student, nor any of its affiliates, or, if applicable, any related person to these, a natural person or entity with whom dealings are prohibited under any OFAC, BIS or Department of State regulations.
11. RELATIONSHIP OF PARTIES
In performing the Training, FTI and/or its consultants, employees and agents shall be acting as independent contractors, and not as the employees or agents of Student. Neither party hereto shall represent to any third person or entity that it or they are the agent or employee of the other party.
12. GENERAL
a. Assignment. Student may not assign its rights under this Agreement without the prior written consent of FTI.
b. Modification. This Agreement can only be modified, whether by waiver or otherwise, by a written agreement duly signed by persons authorized to sign agreements on behalf of the respective parties, and variance from the terms and conditions of this Agreement in any written notification given by either party shall have no force or effect.
c. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
d. Survival. Any right or obligation that by its nature survives will survive any termination or expiration of this Agreement.
e. Governing Law. This Agreement will be governed in all respects by the substantive laws of the State of Colorado, United States of America, exclusive of its conflicts of laws rules. All disputes arising under or otherwise involving this Agreement shall be subject to the sole and exclusive jurisdiction of the state and federal courts located in Denver, Colorado, and both parties hereby submit to the personal jurisdiction of such courts. Except in connection with a breach or threatened breach of the parties’ intellectual property rights, in the event of any dispute under this Agreement, the parties expressly agree to attempt to resolve the dispute between the appropriate officers of each party before seeking judicial relief. The prevailing party in any proceeding brought by either party in connection with this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. This Agreement, and the provisions hereof, may be subject to the Colorado Private Occupational Education Act of 1981, CRS §§12-59-101, et seq., and rules and regulations promulgated pursuant thereto, as applicable.
f. Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months after the termination hereof, neither party shall (without the prior written consent of the other) solicit the employment or services of any employee or contractor of the other party, or engage in the employment of, or contract for services with, such person, whether as an employee or consultant.
g. Non-Waivers. Failure by any party to enforce any of its rights under this Agreement will not be deemed a waiver of any right which that party has under this Agreement.
h. Force Majeure. Except for the payment of monies due under this Agreement, neither party will be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communications, computer or utility failures, unavailability of simulators or other Training locations, or casualties; provided that the delayed party: (i) gives the other party prompt written notice of such cause and (ii) uses its reasonable efforts to correct such failure or delay in its performance. The delayed party’s time for performance or cure under this Section will be extended for a period equal to the duration of the cause or sixty (60) days, whichever is less.
i. Notices. Except as specifically provided herein, all notices required hereunder will be in writing and will be given by personal delivery, national overnight courier service, or by U.S. mail, certified or registered, postage prepaid, return receipt requested, to the parties at their respective addresses set forth above, or to any party at such other addresses as will be specified in writing by such party to the other parties in accordance with the terms and conditions of this Section. All notices will be deemed effective upon delivery, as evidenced by written receipt thereof.
j. Entire Agreement. This Agreement together with the Invoice reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous understanding or agreements between the parties, whether written or oral.
