EQUIPMENT PAYMENT PLAN TERMS AND CONDITIONS
These Equipment Payment Plan Terms and Conditions (the “Terms”) govern Customer’s participation in the equipment payment plan program offered by Gogo and are incorporated into, and form part of, each Order Form referencing these Terms. These Terms are entered into by and between Gogo Business Aviation LLC, or its Affiliate, whichever is the contracting entity identified on the applicable Order Form (“Gogo”) and the customer identified on the applicable Order Form (“Customer”). Gogo and Customer are each a “Party” and collectively the “Parties.”
1. DEFINITIONS
Capitalized terms used but not defined herein have the meanings given in the applicable Order Form or the applicable Service Agreement. The following terms have the following meanings:
“Affiliate” means with respect to any person, any other person that directly or indirectly controls, is controlled by, or is under common control with such person.
“Equipment” means the hardware, components, line-replaceable units, accessories, software (in object code form), firmware, and other equipment identified in the applicable Order Form, together with all replacements, substitutions, attachments, accessions, upgrades, and proceeds thereof.
“Event of Default” means the events described in Section 9 (Events of Default).
“Default Rate” means the lesser of (a) one and one-half percent (1.5%) per month and (b) the maximum rate permitted by applicable law, calculated on the basis of a 360-day year for the actual number of days elapsed.
“Order Form” means the ordering document executed or otherwise accepted by Customer that references these Terms and identifies, at a minimum, the Equipment, the purchase price, the payment schedule, the payment term, and the aircraft (by tail number and serial number) on which the Equipment will be installed (the “Aircraft”).
“Payment Plan” means the installment payment arrangement described in the applicable Order Form pursuant to which Customer is permitted to pay the Equipment purchase price over time, subject to and in accordance with these Terms.
“Service Agreement” means each service agreement between Customer (or any Affiliate of Customer) and Gogo or any of its Affiliates governing the provision of connectivity, network, software, support, or other services associated with the Equipment, including any successor agreement thereto.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York (or, where the context requires, any other applicable jurisdiction).
2. EQUIPMENT PURCHASE; TITLE; SECURITY INTEREST
2.1. Purchase. Customer agrees to purchase the Equipment identified on each applicable Order Form from Gogo pursuant to the Payment Plan set forth therein and these Terms.
2.2. Title and Risk of Loss. Title to and risk of loss in the Equipment transfer to Customer upon delivery of the Equipment FCA (Incoterms 2020) Gogo’s facility, except as otherwise expressly provided in the applicable Order Form. Gogo shall ship the Equipment to the Installer identified by Customer on the applicable Order Form.
2.3. Purchase-Money Security Interest. To secure the prompt and complete payment and performance of all of Customer’s obligations under each Payment Plan, the applicable Order Form, and these Terms (collectively, the “Secured Obligations”), Customer hereby grants to Gogo a continuing first-priority purchase-money security interest in and lien upon the Equipment and all proceeds thereof, including, but not limited to, insurance proceeds, to the extent such Equipment is not paid for in full. Customer further grants to Gogo the right to avail itself of any legal remedy available under the UCC and applicable law and to execute and deliver such financing statements and other documentation as Gogo may reasonably request to perfect and protect Gogo’s interest in such Gogo Equipment.
3. PAYMENT PLAN; INTEREST; FEES
3.1. Installments. Customer agrees to pay the Equipment purchase price in equal monthly installments over the payment term specified on the applicable Order Form. Unless otherwise expressly stated on the applicable Order Form, the scheduled installment payments shall bear no stated interest and shall not include any financing fee.
3.2. Absolute Obligation. All payment obligations of Customer hereunder are absolute, unconditional, and non-cancelable. Customer shall make all payments in U.S. dollars by wire transfer or ACH to the account designated by Gogo, free and clear of and without any deduction, set-off, recoupment, withholding, counterclaim, abatement, or defense of any kind whatsoever, regardless of any event or circumstance, including any defect in the Equipment, any dispute with Gogo, or any termination, cancellation, or non-performance of the Service Agreement.
3.3. Late Charges. If any amount due under a Payment Plan is not received by Gogo within five (5) days of its due date, Customer shall pay to Gogo a late charge equal to the greater of (a) five percent (5%) of the past-due amount and (b) $50, in each case as liquidated damages for administrative costs incurred and not as a penalty.
3.4. Default Interest. Any amount not paid when due (including any late charge payable under Section 3.3 and any amount accelerated pursuant to Section 7) shall bear interest from the original due date (or, in the case of an accelerated amount, from the date of acceleration) until paid in full at the Default Rate. Interest at the Default Rate shall accrue daily and be compounded monthly.
3.5. Application of Payments. Gogo may apply payments received in the following order: (i) collection costs, fees, and expenses; (ii) Default Rate interest and late charges; (iii) other charges then due; and (iv) outstanding principal installments in inverse order of maturity. Partial payments do not cure any Event of Default unless expressly accepted as such by Gogo in writing.
3.6. Prepayment. Customer may prepay all or any portion of the outstanding unpaid principal balance at any time without premium or penalty, unless otherwise expressly stated on the applicable Order Form. Partial prepayments shall be applied to scheduled installments in inverse order of maturity and shall not relieve Customer of its obligation to continue paying scheduled installments as they come due.
3.7. No Stacking. Participation in the Payment Plan may not be combined with any other promotional offer, discount, incentive, rebate, or special pricing program except as expressly authorized by Gogo in writing on the applicable Order Form.
4. ELIGIBILITY, CREDIT APPROVAL, AND FINANCIAL INFORMATION
4.1. Approval; Continuing Eligibility. Customer's initial participation in the Payment Plan is subject to Gogo’s credit approval, in its sole discretion, prior to execution of the applicable Order Form. Following execution and at any time prior to full payment of all amounts due, Gogo may condition, suspend, revoke, or modify Customer's continued participation in the Payment Plan, including in response to any material adverse change (as determined by Gogo in its reasonable discretion) in Customer's business, operations, financial condition, prospects, or creditworthiness (a "Material Adverse Change"). The occurrence of a Material Adverse Change that, in Gogo's reasonable judgment, materially impairs Customer's ability or willingness to perform its obligations under the Payment Plan constitutes an Event of Default under Section 9(h), and upon such occurrence Gogo may exercise any of its remedies under Section 10, including declaring all remaining unpaid amounts under the Payment Plan immediately due and payable.
4.2. Credit Review. Customer authorizes Gogo and its representatives to evaluate Customer’s creditworthiness and financial condition from time to time and to request, obtain, and exchange with credit reporting agencies and financial institutions such financial, operational, and other information as Gogo reasonably determines necessary or advisable, both at the time of approval and on a continuing basis until all amounts are paid in full.
5. CUSTOMER REPRESENTATIONS AND WARRANTIES
Customer represents and warrants to Gogo, as of the date of each Order Form and on each payment date, that: (a) Customer is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization and has full power and authority to enter into and perform its obligations under these Terms, each Order Form, and the applicable Service Agreement; (b) the execution, delivery, and performance of these Terms and each Order Form have been duly authorized and do not violate Customer’s organizational documents, any material agreement to which Customer is a party, or any applicable law; (c) these Terms and each Order Form constitute legal, valid, and binding obligations of Customer, enforceable against Customer in accordance with their terms; (d) Customer owns or holds a valid leasehold or use right in the Aircraft sufficient to install and operate the Equipment as contemplated hereby; (e) Customer is not, and is not owned or controlled by a person who is, the subject of sanctions administered by OFAC, the U.S. State Department, the United Nations Security Council, the European Union, His Majesty’s Treasury, or any other applicable sanctions authority, and is not located, organized, or resident in a comprehensively sanctioned country or territory; (f) neither Customer nor, to its knowledge, any of its directors, officers, employees, or agents has taken any action that would constitute a violation of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010, or any other applicable anti-corruption law; and (g) all information furnished by Customer to Gogo in connection with the Payment Plan is true, correct, and complete in all material respects.
6. RELATIONSHIP WITH SERVICE AGREEMENT
Customer acknowledges that the Equipment is intended for use with Services provided pursuant to a Service Agreement. The Payment Plan and the Service Agreement are interconnected commercial arrangements that have been entered into in reliance upon one another and constitute integrated economic consideration. Nothing in these Terms limits any rights or remedies available to Gogo or its Affiliates under any Service Agreement, all of which are expressly reserved.
7. AIRCRAFT TRANSFER; MANDATORY PREPAYMENT
7.1. Mandatory Prepayment on Transfer. If Customer sells, transfers, leases (other than a wet lease), assigns, or otherwise disposes of the Aircraft, or any direct or indirect ownership interest in the Aircraft that would result in a change in the owner, operator or control of the Aircraft, prior to payment in full of all amounts due under the applicable Payment Plan, all remaining unpaid amounts (including accrued interest and fees) shall automatically become immediately due and payable on or before the closing of such transaction, and Customer shall pay such amounts to Gogo in full. The Payment Plan may not be assumed by, or otherwise transferred to, any transferee of the Aircraft.
7.2. Notice. Customer shall provide Gogo with not less than sixty (60) days’ prior written notice of any proposed transaction described in Section 7.1, including the identity of the proposed transferee and the anticipated closing date.
7.3. No Assumption. The Payment Plan is personal to Customer and may not be assumed by any transferee of the Aircraft. Customer's obligations under the Payment Plan, the applicable Order Form, and these Terms shall remain solely those of Customer until paid in full, and no sale, transfer, or other disposition of the Aircraft shall relieve Customer of, or transfer to any other person, such obligations.
8. EARLY TERMINATION OF SERVICE AGREEMENT
If any Service Agreement terminates or is suspended for any reason other than Gogo’s uncured material breach, or if Customer is permitted to terminate such Service Agreement for convenience, prior to expiration of the applicable Payment Plan term, all remaining unpaid amounts under the Payment Plan shall, at Gogo’s election, become immediately due and payable as of the effective date of such termination or suspension.
9. EVENTS OF DEFAULT
Each of the following constitutes an “Event of Default” under these Terms:
(a) Customer fails to pay any amount due under a Payment Plan within five (5) days after such amount becomes due;
(b) Customer fails to perform or observe any other covenant or obligation under these Terms or any Order Form, and such failure (if capable of being cured) continues for thirty (30) days after written notice by Gogo; provided that no notice or cure period shall apply to a breach of Sections 5 or 6 or any other covenant the breach of which is not, in Gogo’s reasonable judgment, susceptible of cure;
(c) any breach by Customer or any of its Affiliates of the Service Agreement that is not cured within any applicable cure period (if capable of being cured) under the Service Agreement, or any suspension or termination for cause of the Service Agreement;
(d) any representation, warranty, financial statement, or other information made or furnished by Customer to Gogo proves to have been false or misleading in any material respect when made;
(e) Customer (i) becomes insolvent or generally fails to pay its debts as they become due, (ii) commences a voluntary case under, or has filed against it an involuntary case under, the U.S. Bankruptcy Code or any similar law (which involuntary case is not dismissed within sixty (60) days), (iii) makes an assignment for the benefit of creditors, (iv) has a receiver, trustee, or similar officer appointed for all or a substantial part of its assets, or (v) ceases to conduct its business in the ordinary course;
(f) any change of control of Customer occurs without Gogo’s prior written consent (which shall not be unreasonably withheld), where “change of control” means any transaction or series of related transactions resulting in any person or group (other than the persons holding control as of the Order Form date) acquiring, directly or indirectly, more than fifty percent (50%) of the voting equity interests of Customer or all or substantially all of Customer’s assets;
(g) Customer or any of its Affiliates becomes the subject of sanctions, export-control restrictions, or any other legal or regulatory prohibition that, in Gogo’s reasonable judgment, exposes Gogo to material legal, financial, or reputational risk; or
(h) a Material Adverse Change occurs that, in Gogo’s reasonable judgment, materially impairs Customer’s ability or willingness to perform its obligations under the Payment Plan.
10. REMEDIES
10.1. Remedies. Upon the occurrence and during the continuance of any Event of Default, Gogo may, in addition to all rights and remedies available under applicable law, equity, contract, or the Service Agreement, exercise one or more of the following remedies, in such order as Gogo elects: (a) declare all remaining unpaid amounts under the Payment Plan, together with all accrued interest, fees, costs, and expenses, immediately due and payable, whereupon the same shall be immediately due and payable without presentment, demand, protest, or further notice of any kind, all of which Customer waives; (b) suspend or terminate any or all services, technical support, maintenance, software access, updates, warranty obligations, or other obligations under any Service Agreement or these Terms; (c) exercise any and all rights and remedies of a secured party under the UCC and other applicable law with respect to the Equipment; (d) pursue collection actions and other legal proceedings; (e) set off any obligation of Customer hereunder against any obligation of Gogo or any of its Affiliates to Customer; and (f) recover all costs and expenses incurred by Gogo in connection with the exercise of its rights and remedies, including reasonable attorneys’ fees, court costs, collection costs, repossession costs, storage costs, refurbishment costs, and consultants’ fees.
10.2. Cumulative. All rights and remedies of Gogo are cumulative and concurrent and may be exercised singly, concurrently, or successively. The exercise of any right or remedy is not an election and does not preclude the exercise of any other right or remedy.
10.3. Commercial Reasonableness. The Parties agree that ten (10) days’ prior written notice of any sale or other disposition of the Equipment constitutes commercially reasonable notice under the UCC. Customer remains liable for any deficiency after application of net disposition proceeds to the Secured Obligations.
11. ASSIGNMENT
11.1. By Customer. Customer may not assign, delegate, transfer, or otherwise convey, by operation of law or otherwise, any of its rights or obligations under these Terms or any Payment Plan without Gogo’s prior written consent. Any change of control of Customer is deemed an assignment requiring Gogo’s consent. Any purported assignment in violation of this Section is void.
11.2. By Gogo. Gogo may, without Customer’s consent, assign, transfer, sell, pledge, securitize, syndicate, participate, or otherwise convey, in whole or in part, these Terms, any Payment Plan, any Order Form, or any receivable, security interest, or other right arising hereunder. Customer agrees to execute and deliver, at Gogo’s reasonable request and at Customer’s expense, such acknowledgments, estoppels, and other instruments as any such assignee or transferee may reasonably require, and Customer waives, as against any such assignee or transferee, any defense, set-off, counterclaim, or recoupment that Customer may have against Gogo.
11.3. Successors. These Terms are binding upon, and inure to the benefit of, the Parties and their respective permitted successors and assigns.
12. TAXES
Customer is responsible for, and shall pay, all sales, use, value-added, goods-and-services, excise, gross-receipts, transfer, import, export, stamp, documentary, withholding, property, and similar taxes, duties, levies, tariffs, and governmental charges (and any related interest and penalties) imposed on, arising out of, or in connection with the Equipment, the Payment Plan, or the transactions contemplated hereby, excluding taxes imposed solely on Gogo’s net income, capital, or franchise. If Customer is required by law to withhold or deduct any amount from any payment to Gogo, the amount payable shall be grossed up so that, after such withholding or deduction, Gogo receives the amount it would have received absent such withholding or deduction. Customer shall timely furnish to Gogo evidence of payment of any such tax.
13. NOTICES.
All notices, demands, and other communications under these Terms shall be in writing and shall be deemed given (a) when delivered by hand, (b) one business day after deposit with a reputable overnight courier (charges prepaid), or (c) three business days after deposit in the U.S. mail, postage prepaid, certified or registered, in each case addressed to the recipient at the address set forth on the applicable Order Form (or such other address as the recipient may designate by notice given in accordance with this Section). Notices to Gogo shall also be sent, concurrently, to the attention of Gogo’s General Counsel. Routine operational notices may be given by email to the addresses set forth on the applicable Order Form, but notices of default, acceleration, or termination shall be given by hand, courier, or mail as set forth above.
14. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OR ANY ORDER FORM: (a) IN NO EVENT SHALL GOGO OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, BUSINESS, OR GOODWILL, ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER FORM, OR ANY PAYMENT PLAN, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER GOGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) GOGO'S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER FORM, OR ANY PAYMENT PLAN SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO GOGO UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS DO NOT APPLY TO: (i) CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER; (ii) LOSSES ARISING FROM CUSTOMER'S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; OR (iii) GOGO'S ENFORCEMENT OF ITS SECURITY INTEREST IN THE EQUIPMENT.
15. GOVERNING LAW; FORUM; WAIVERS
15.1. Governing Law. These Terms, each Order Form, each Payment Plan, and any dispute, controversy, or claim arising out of or relating to any of the foregoing or the transactions contemplated hereby (whether in contract, tort, statute, equity, or otherwise) shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict-of-laws principles.
15.2. Forum. Each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of New York for any action or proceeding arising out of or relating to these Terms, and waives any objection to venue or the convenience of such forum; provided that Gogo may bring suit in any court of competent jurisdiction to (a) enforce its security interest in or take possession of the Equipment, (b) obtain injunctive or other equitable relief, or (c) enforce any judgment obtained in the New York courts.
15.3. JURY TRIAL WAIVER. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER FORM, ANY PAYMENT PLAN, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.4. Class Action Waiver. Each Party waives any right to participate in any class, collective, consolidated, or representative action against the other in connection with these Terms.
15.5. Limitations Period. Any action arising out of or relating to these Terms must be commenced within two (2) years after the cause of action accrues, or it shall be barred.
16. CONFIDENTIALITY
The terms of each Order Form and Payment Plan (including pricing, payment schedules, and any concessions) constitute the confidential information of Gogo. Customer shall not disclose such information to any third party other than its directors, officers, employees, professional advisors, lenders, prospective lenders, and prospective acquirers having a legitimate need to know and bound by obligations of confidentiality, except as required by applicable law or legal process (in which case Customer shall, to the extent permitted, give Gogo prompt notice and a reasonable opportunity to seek a protective order).
17. ENTIRE AGREEMENT; ORDER OF PRECEDENCE
These Terms, together with each applicable Order Form and the applicable Service Agreement, constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof and supersede all prior or contemporaneous understandings, agreements, proposals, or communications relating thereto. In the event of a conflict among such documents, the order of precedence shall be (a) the applicable Order Form (solely with respect to terms expressly identified therein as superseding these Terms), (b) these Terms, and (c) the applicable Service Agreement. No purchase order, acknowledgment, or other ordering document issued by Customer shall vary or supplement these Terms, and any additional or different terms contained therein are hereby rejected.
18. MISCELLANEOUS
18.1. Amendments and Waivers. No amendment, modification, or waiver of any provision of these Terms is effective unless in writing and signed by an authorized representative of Gogo (and, in the case of an amendment, Customer). No failure or delay by Gogo in exercising any right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise.
18.2. Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be modified to the minimum extent necessary to render it enforceable while preserving the original intent of the Parties to the maximum extent permitted by law.
18.3. Survival. Sections 2.3, 3, 5, 6, 7, 8, 10.3, and 11-18, and any other provision that by its nature should survive, shall survive termination or expiration of these Terms and any Order Form.
18.4. No Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their permitted successors and assigns; nothing herein confers any right or remedy on any other person.
18.5. Independent Contractor. The Parties are independent contractors. Nothing herein creates any partnership, joint venture, agency, or employment relationship.
18.6. Headings; Construction. Headings are for convenience only and do not affect interpretation. The word “including” means “including without limitation.” No rule of construction against the drafter applies.
18.7. Time of the Essence. Time is of the essence with respect to all payment obligations of Customer hereunder.
18.8. Counterparts; Electronic Acceptance. These Terms and each Order Form may be executed (a) in counterparts, each of which is an original and all of which together constitute one instrument, and (b) electronically, including by click-through acceptance, electronic signature, or other electronic means, which shall have the same force and effect as a manually signed original.
18.9. USA PATRIOT Act. Customer acknowledges that Gogo may be required to obtain, verify, and record information identifying Customer in compliance with the USA PATRIOT Act and other applicable “know your customer” and anti-money laundering laws, and Customer shall provide such information promptly upon request.