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Operator Terms

STELLAR PARTICIPATION AGREEMENT – STANDARD TERMS

These Standard Terms apply to the Stellar Participation Agreement between Stellar, Inc. and participants in its aviation fuel and services procurement program. By agreeing to the Stellar Participation Agreement, participants are agreeing to these Standard Terms. Capitalized terms used in these Standard Terms and not otherwise defined have the meanings assigned to them in the Stellar Participation Agreement. These Standard Terms and the Stellar Participation Agreement are referred to herein collectively as, this “Agreement.”

1. Eligibility Date. Participant shall be eligible to purchase fuel and services under the Program following satisfactory verification of Participant’s credit status (the “Eligibility Date”). Stellar shall provide notice to Participant of the Eligibility Date.

2. Non-Exclusivity. This Agreement is non-exclusive. Stellar and Participant may enter into agreements with third parties for the provision of the same or similar services as provided in this Agreement.

3. Term and Termination. This Agreement commences as of the Effective Date and continues for a period of one (1) year unless earlier terminated (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for additional, successive periods of one (1) year each unless earlier terminated (each a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement effective immediately upon written notice to the other party. Participant shall remain liable for all outstanding fees and other amounts owed to Stellar as of the date of termination.

4. Representations and Warranties. Participant represents and warrants to Stellar the following:

  • all information provided to Stellar is true, accurate, and complete;
  • this Agreement, upon execution by Participant’s authorized signatory, is valid, binding, and enforceable in accordance with its terms;
  • the execution of this Agreement and performance of the obligations set forth herein have been authorized by all necessary corporate action of Participant and do not constitute a breach of any other agreement between Participant and a third party;
  • Participant is in compliance and shall continue to be in compliance with all applicable state and federal statutes, ordinances, rules, regulations, and requirements of governmental authorities as they relate to the purchase of fuel and aviation services;
  • Participant possesses the financial capacity to perform all of its obligations under this Agreement.

5. Confidentiality. Stellar agrees that it will maintain all non-public data relative to Participant as confidential information and Stellar agrees to use such data exclusively for performing its obligations under this Agreement and not to release such information to any other party except its agents; provided, however, that Stellar may disclose information to merchants and third-party processors as required to perform its obligations under this Agreement and under the Vendor Contracts. Stellar may collect, maintain and, at its option, disseminate information and data concerning charge activity which does not contain any direct or indirect identification of Participant.

Participant acknowledges and agrees that Stellar may use, at its discretion, all non-public data associated with Participant and provided to Stellar including, without limitation, fuel volumes,

quantities, pricing data, aircraft tail numbers, registry and authorized users to suppliers, vendors, and partners for the sole purpose only of negotiating a discounted fuel procurement program.

Participant agrees that it will maintain all information relating to pricing available under the Program as confidential information and not disclose such information to any third-party. Participant shall require its representatives, including its agents, employees, and members to maintain confidentiality in accordance with this Section and shall be solely responsible for the breach of its representatives of these obligations.

6. Changes to the Program. Stellar may change the terms of the Program at any time by giving the Participant three (3) days written notice. Stellar shall notify Participant of any changes by email to the contact listed on the signature page. If permitted by applicable law, such changes will apply to existing balances as well as future purchases. If Participant does not accept the changes, Participant may notify Stellar of termination of this Agreement in accordance with Section 3 of these Standard Terms.

7. Limitation of Liability. IN NO EVENT SHALL STELLAR OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT STELLAR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

IN NO EVENT SHALL STELLAR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO STELLAR PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. Indemnification. Participant (as “Indemnifying Party”) shall indemnify Stellar and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities claims judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including  attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”), arising out of any third-party claim alleging: (a) breach of this Agreement; (b) any negligent or more culpable act or omission of Indemnifying Party (including any reckless or willful misconduct); (c) any bodily injury, death of any person, or damage to real or tangible personal property; or (d) any failure to comply with any applicable federal, state, or local laws.

Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify Indemnified Party against any claim if such claim or corresponding Losses arise out of or result from Indemnified Party’s: (x) negligence or more culpable act or omission (including recklessness or willful misconduct); or (y) bad faith failure to comply with any of its obligations set forth in this Agreement.

9. Notices. All notices or other communications required or permitted under this Agreement shall be in writing and sent by registered or certified mail, postage prepaid, delivered personally, or by email. Notice shall be deemed to have been given upon receipt. Notices shall be addressed to each party as set forth on the signature page of the Agreement.

10. Assignment. Participant shall not assign its rights or delegate its obligations under this Agreement without the prior written consent of Stellar. Stellar may assign its rights or delegate its obligations under this Agreement upon notice to Participant but without needing the prior written consent of any party. Any purported assignment in violation of this Section shall be null and void.

11. Credit Check Authorization. Participant shall provide all requested information to enable Stellar to perform a credit check on Participant. Such process may include contacting bank representatives to discuss bank and credit history, obtaining information from other creditors of Participant, credit bureaus, and third parties.

12. Force Majeure. Neither party shall be liable to the other party for any delay or failure to perform its obligations hereunder if such delay or failure results from causes beyond its reasonable control. Such causes may include, without limitation, acts of God, fires, epidemics, or other catastrophes, telecommunications failures, equipment failures, power failures, labor disputes, strikes, delays in transportation, riots, war, governmental regulations, non-performance by suppliers and vendors, or problems experienced by Stellar’s computer software or hardware failures (an “Event of Force Majeure”). Each party shall give the other party prompt notice of any Event of Force Majeure that may cause delay or non-performance of its obligations hereunder.

13. Governing Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of Massachusetts, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Delaware. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY DELAWARE LAW.

14. Survival. Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination for the period specified therein.

15. Amendments. This Agreement may only be amended, modified, superseded, or supplemented by a written instrument expressly amending, modifying, superseding, or supplementing this Agreement, executed, and delivered by each of the parties hereto. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.

16. Entire Agreement. This Agreement, together with the Standard Terms, contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.