1. Definitions. The below words have the following meanings:
“Account(s)” means the credit extended to Customer by PFJ. An Account may be evidenced by a plastic card or an account number.
“Account User” means Customer or any other entity or individual authorized by Customer to use Account or Cards.
“Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions are generally authorized or required by law or executive order to close.
“Card” means a card or other approved payment device provided by a third party billing company, which allows Customer to make charges on Customer’s Account with PFJ.
“Controls” are a set of authorization tools designed to assist Customer with managing purchases.
“Customer” is the customer entity who has applied for and been approved for a Direct Bill account with PFJ.
“PFJ” shall collectively reference Pilot Travel Centers LLC (“Pilot”) and SFJ Inc. (“SFJ”).
“Transaction” means the use of the Account to buy goods or services at accepting merchants.
“Unauthorized Transaction” means a Transaction made on the Account by any person or entity other than an Account User.
2. Credit and Accounts.
2.1. PFJ may in its sole discretion extend credit to Customer after a complete and accurate application has been completed. PFJ may at any time, investigate the financial condition of Customer or, as applicable, its subsidiaries and affiliates. If requested, Customer agrees to furnish PFJ copies of its financial statements, or other financial information as soon as available. Financial statements shall have been prepared in accordance with generally accepted accounting principles, consistently applied and shall be in accordance with the books and records of Customer. Failure to present requested financial information may result in the termination of Customer’s Account.
2.2. PFJ may suspend an Account or refuse to authorize any Transaction in its sole discretion and specifically in the event that any balance is past due. Customer shall, immediately upon request, pay the entire balance due on the Account.
2.3. Customer shall designate its internal contacts authorized to: (i) provide PFJ with the information necessary to establish and maintain Customer’s Account(s); (ii) receive all Account numbers or reports; or (iii) receive other Account information. Customer will provide notice of any change or removal of any contact either in writing or by telephoning PFJ’s customer service department. PFJ is authorized to take instruction from any contact with apparent authority to act on Customer’s behalf. Unless and until Customer reports any errors in Account information, PFJ is entitled to rely on that information for servicing the Account.
2.4. During this Agreement, in addition to its initial application, Customer hereby authorizes PFJ to check its credit references, credit history, and other business information as needed, in order to service Customer’s account or manage Customer’s relationship with PFJ. To the extent permissible under applicable law, Customer consents to providing PFJ a secured interest in Customer’s tangible assets, including but not limited to, Customer’s trucks, trailers, equipment, accounts receivable, and the like. Customer consents to PFJ filing a UCC-1 lien on any of Customer’s assets whenever and wherever the assets are located within the United States or Canada. Customer also agrees to promptly provide PFJ with adequate assurances if PFJ has concern over Customer’s ability to honor the terms of this Agreement. Said assurances may include, but are not limited to: (a) a UCC-1 lien on any of Customer’s assets located within the United States; (b) a personal guarantee from a thirty party which PFJ, in its sole discretion, approves; (c) escrow of funds or (d) execution of a Letter of Credit or similar document under applicable law.
2.5. Customer agrees that PFJ is a critical vendor and that the supply of fuel pursuant to this Agreement is critical to Customer’s day-to-day operations. PFJ’s critical vendor status shall survive the termination of this Agreement as it pertains to fuel sold to Customer pursuant to this Agreement or otherwise.
2.6. CUSTOMER AND PFJ HEREBY ACKNOWLEDGE THAT THIS AGREEMENT IS A BILLING AGREEMENT FOR FUEL PURCHASES AND THOSE OTHER SPECIFIC GOODS AND SERVICES THAT PFJ HAS AGREED TO PROVIDE TO CUSTOMER UNDER THIS BILLING AGREEMENT. CUSTOMER ACKNOWLEDGES THAT NOT ALL GOODS OR SERVICES THAT MAY BE PROVIDED TO CUSTOMER AT PFJ TRAVEL CENTERS OR TRAVEL PLAZAS ARE GOVERNED BY THIS AGREEMENT.
2.7. Any purchases on Customer’s Account will only be for the purchase of products and services for business or commercial purposes and not for personal, family or household purposes. Customer shall adopt internal policies and controls to ensure that the Account is used strictly for business or commercial purposes. Purchases of lottery tickets or other games of chance, alcohol, gift cards, pre-paid cards or other cash equivalent charges are prohibited.
2.8. Customer may use its Account to purchase dyed special fuel. Customer acknowledges that all dyed special fuel purchases will be used exclusively for off-road purposes and according to all applicable laws governing its use. Customer understands that it may be subject to fines or other legal action by governmental authorities for misuse or mishandling of dyed special fuel. PFJ is not liable in any way for any misuse or mishandling by Customer of any dyed special fuel. Upon request from applicable governmental authorities, PFJ may provide information regarding Customer’s dyed special fuel purchases without prior authorization from Customer. Customer agrees to indemnify and hold PFJ harmless for any and all fines, fees, penalties or damages PFJ may suffer due to Customer’s misuse of dyed special fuel purchases.
3. Controls; Notice of Loss, Theft, or Unauthorized Use.
3.1. Customer is responsible for all transactions made by its current and former employees, contractors, affiliates, subsidiaries, or subcontractors who run Transactions or use Customer’s Account number. It is Customer’s responsibility to monitor all Account activity.
3.2. Customer shall enable all available card and account security features provided by the third party card company with which Customer has obtained its fuel credit cards in an effort to prevent Customer’s Card or Account Information from being compromised.
3.3 In the event that Customer knows of or suspects the loss, theft or possible unauthorized use of its Account, Customer should immediately notify its third party billing company and also notify PFJ (865-588-0146). Until notified, PFJ will assume any and all account usage is authorized by Customer, and Customer will be liable for any and all charges.
3.4 Unless otherwise separately agreed between PFJ and Customer’s respective billing service, and excluding instances of gross negligence or willful misconduct by PFJ, Customer shall assume all responsibility and be liable to PFJ for all unauthorized use or Unauthorized Transactions that occur including, but not limited to, the following: (i) a Card is lost or stolen and Customer does not give immediate notice as provided in Section 3.3 of this Agreement; (ii) such use or suspected use occurs as a result of the Customer’s lack of reasonable security precautions and Controls surrounding the Cards or Accounts as more fully described in this Agreement; or (iii) such use results in a benefit, directly or indirectly, to the Customer or Account User. Misuse as defined by internal Customer policy by an Account User or other employee does not constitute unauthorized use or an Unauthorized Transaction.
4. Additional Fees.
4.1. Customer understands and agrees that if an Account User receives a cash advance in connection with a transaction on the Account, PFJ may charge Customer an additional processing fee per cash advance transaction.
4.2. Customer agrees PFJ may charge Customer an additional processing fee per Cat Scale transaction.
4.3. Should any transfer, check, or other payment from Customer be returned to PFJ, Customer agrees that it will be charged a $50.00 processing fee for each payment returned to Customer for insufficient funds or for any other reason which would cause the funds to be unavailable to PFJ.
4.4. PFJ may charge a $5.00 fee per request to replace lost or missing receipts.
5. Payment Promise.
5.1. Customer agrees to be liable to the respective invoicing party for the payment of the invoices pursuant to this Agreement. Payment is due in full within the pay period set forth within the Terms Confirmation (“Payment Period”) and as stated on your invoice. Payment shall be made in the currency requested on the invoice (US Dollars for Pilot and Canadian Dollars for SFJ). If the payment due date falls on a non-Business Day, payment is due on the Business Day before the payment due date. Accounts not paid in full by agreed to terms (including late charges) will automatically be suspended and placed on hold until the outstanding balance is paid in full. PFJ shall also reserve the right to immediately terminate this Agreement if payment is not made within the Payment Period. Reactivation of your account will be at PFJ’s sole discretion. PFJ reserves the right to request additional security or to alter the terms of this Agreement if your account has any delinquencies.
5.2. In the event of delinquent payments in a payment period, Customer will forfeit any discounts or rebates in the Terms Confirmation and Welcome Letter that PFJ had agreed to give Customer for any purchase made by Customer during the applicable payment period(s) and for all purchases made by Customer after PFJ’s notice of termination of this Agreement (i.e., Customer will pay full retail prices and any applicable transaction fees on purchases made during the period of non-payment and after such termination.)
6. Late Fees. If Customer’s timely payment is not received within the Payment Period, Customer’s account shall be considered delinquent and the account will be subject to late charges at the rate of twenty percent (20%) per annum or the highest rate allowed under applicable law, whichever is lower, retroactive to date of the unpaid invoice or invoices, or any portions thereof remaining unpaid. PFJ will begin to assess late fees on the first day following the date a payment is due and is not posted to the Account by the end of the Business Day. The late fee will apply to all past due amounts.
7. Application of Payments and Early Payments. Payments will be applied first to unpaid late fees and then to any unpaid balances. In addition to any other rights now or hereafter granted under applicable law, PFJ may, without notice, set off and apply any and all monies, and any and all other indebtedness at any time held by PFJ to or for Customer’s credit or account, against or on account of any indebtedness owed by Customer to PFJ or any of Customer’s other obligations and liability to PFJ, howsoever arising. Customer or an Account User, as applicable, may pay their Account balance or a portion of it, at any time prior to its due date without penalty.
8. Disputed Amounts. If Customer believes an invoice contains information that is incorrect, it must bring the discrepancy to PFJ’s attention in writing within the Payment Period or timely pay the invoice in full. If Customer does bring a discrepancy to PFJ’s attention in writing within the Payment Period, Customer must pay PFJ the undisputed portion of the invoice within the Payment Period. All discrepancies or disputes of charges must be sent in writing to PFJ within sixty (60) days from the billing date or they will be considered final and binding and unconditionally waived by Customer. The dispute should detail Customer’s name and account number, the specific transactions and total dollar amount of the dispute, as well as a description or possible explanation of the error.
9.1. A party to this Agreement may terminate this Agreement at any time upon the default of the other party. “Default” means: (i) the failure of the Customer to remit payment to PFJ in accordance with the terms of this Agreement; (ii) the breach by either party of this Agreement, other than an event of nonpayment by Customer, provided the breach is not remedied within 15 days of the defaulting party's receipt of written notice from the other party specifying the breach; (iii) the representation or warranty by either party of any facts in connection with this Agreement that prove to have been materially incorrect or misleading when the representation or warranty was made; (iv) the filing by or against either party of any petition in bankruptcy, insolvency, receivership, or reorganization or pursuant to any other debtor relief law or the entry of any order appointing a receiver, custodian, trustee, liquidator, or any other person with similar authority over the assets of either party; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of either party; (vii) the entry of any adverse judgment, order or award against either party that has a material adverse impact on the financial condition of either party or a detrimental effect on the ability of either party to perform its obligations; or (vi) the default by Customer under any other agreement between Customer and PFJ.
9.2. If Customer Defaults: (i) it will not have any further right to borrow under this Agreement; (ii) all outstanding amounts under the Account are immediately due and payable; (iii) PFJ may terminate this Agreement; and (iv) PFJ will have the right to bring suit and exercise all rights and remedies available under applicable law which may include the payment of all reasonable costs of collection. PFJ may, in its sole discretion: (i) immediately suspend all services and obligations; (ii) shorten the billing cycle; or (iii) change the payment terms with or without notice to Customer. The suspension of services and/or obligations will not be deemed a waiver of any right to terminate this Agreement, whether as a result of the Default to which such suspension of services or obligations relates or otherwise.
10. Term and Termination.
10.1. This Agreement is effective upon acceptance of the application for an Account by PFJ unless terminated by either party with thirty (30) days advance written notice. Upon termination Customer is still obligated to pay for all Transactions made prior to the effective date of the termination. Customer may retain a copy of any records or Account information for archival or data retention purposes.
10.2. PFJ may, at any time, elect to immediately terminate or modify products or services described in this Agreement.
11. Force Majeure.
11.1. In no event shall either party be liable to the other party (except for payment of money on outstanding amounts on the Account) for any failure or delay in performance wholly or in part due to causes or circumstances beyond its reasonable control and without its fault or negligence including, but not limited to the following: Acts of God; acts of the public enemy; civil disturbance; war; acts of the United States of America or any state, territory or political division of the United States of America; fires; floods; natural disasters; pandemic or epidemic events, regional, statewide, or nationwide strikes, or any other general labor dispute not specific to that party; communication line failures; and/or freight embargoes (collectively “force majeure”). A party’s failure to perform its obligations under this Agreement due to force majeure events will not be considered breach or Default if the party has made its best efforts to: (i) comply with its obligations; (ii) avoid an interruption of its performance; and (iii) resume its performance.
11.2. The party claiming a failure or delay in performance under this Agreement due to force majeure must promptly notify the other party in writing. In the event that any such force majeure failure or delay continues for a period of more than ten (10) business days, the other party may, upon written notice to the other party, have the option of terminating this Agreement without incurring additional liability.
12. Assignment and Amendment.
12.1. Customer may not assign this Agreement or any interest, payment or rights under this Agreement for any reason, without PFJ’s prior written consent.
12.2. Any amendments or modifications to the terms and provisions of this Agreement, or waiver as to the terms hereof, must be in writing and executed by authorized representatives of both parties, specifically excluding the Terms Confirmation and these Additional Terms and Conditions, which may be revised at any time by PFJ, with or without notice, in accordance with applicable law. These Terms and Conditions, and any amendments thereto, can be accessed by Customer at any time at the following web address: https://www.pilotflyingj.com/direct-bill-purchase-agreement-terms-and-conditions/.
13.1. The parties represent and warrant that this Agreement constitutes the legal, valid, binding, and enforceable agreement of each party, and its execution and performance of this Agreement: (i) does not constitute a breach of any agreement of either party with any other party, or of any duty arising in law or equity; (ii) does not violate any law, rule or regulation applicable to it; (iii) is within the party's corporate powers; and (iv) has been authorized by all necessary corporate action of the parties. Customer agrees to provide any evidence of corporate (or other organizational) existence and authorization that PFJ may reasonably request, in its sole discretion. Failure of PFJ to request evidence of corporate (or organizational) existence may not be used against PFJ.
13.2. For PFJ’s continued compliance with banking and credit underwriting standards, Customer will provide PFJ with advance written notice of: (i) any change in Customer’s legal structure or legal name; (ii) any consolidation, merger or sale of a substantial part of Customer’s assets; or (iii) any change of control of Customer as well as if an employee of Customer that has provided a guaranty of payment has terminated their relationship with Customer. PFJ reserves the right to make any necessary modifications to the Account terms based upon changes made by Customer as referenced above.
13.3. As part of PFJ’s commitment to customer service, its managers periodically will monitor telephone communications between its employees and its customers to ensure that high quality service standards are maintained. Customer consents to that monitoring and recording of telephone communications and agrees to notify employees who may be in telephone contact with PFJ’s representatives that periodic monitoring of conversations will occur.
14. Severability and Waiver. If any portion of this Agreement is held to be invalid, the remaining portions shall remain in full force and effect and shall continue to be binding upon the parties. Failure to insist upon strict compliance with any of the terms or conditions of the Agreement shall not be deemed a waiver of such term or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
15. Waiver of Jury Trial, Service of Process and Class Action Rights. CUSTOMER HEREBY WAIVES ANY RIGHT THAT IT HAS TO HAVE ANY DISPUTE RELATING TO THIS AGREEMENT, CUSTOMER’S APPLICATION FOR CREDIT, OR ANY RELATED DOCUMENTS, HEARD BY A JURY. ANY CLAIM BROUGHT BY CUSTOMER AGAINST PFJ MUST BE BROUGHT IN THE CUSTOMER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). CUSTOMER EXPRESSLY WAIVES ANY ABILITY TO MAINTAIN OR PARTICIPATE IN ANY CLASS ACTION IN ANY FORUM. Customer waives personal service of process in connection with any action or proceeding commenced by PFJ in connection with this Agreement, and agrees that service may be made by certified mail to the last known address in PFJ’s records.
16. Attorneys’ Fees & Costs. Customer shall be liable to PFJ for any and all attorneys’ fees and costs incurred by PFJ to enforce this Agreement.
17. Indemnity. CUSTOMER AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS, AND DEFEND PFJ, ITS MEMBERS, OFFICERS, DIRECTORS, MANAGERS, AND EMPLOYEES, AGAINST ALL ACTIONS, CLAIMS, DAMAGES, DEMANDS, SUITS, AND OTHER LIABILITIES, INCLUDING ATTORNEY FEES AND OTHER EXPENSES OF LITIGATION ARISING OUT OF, IN WHOLE OR IN PART, CUSTOMER OR ITS EMPLOYEES’ OR AGENTS’ BREACH OF ANY TERM OF THIS AGREEMENT, OR ANY ACT OR OMISSION IN THE PERFORMANCE OF THIS AGREEMENT, OR WHILE SAID EMPLOYEES OR AGENTS ARE FOUND ON PILOT, FLYING J, OR SFJ TRAVEL CENTER PROPERTY(IES).
18. Disclaimers and Limitations.
18.1. PFJ is not liable for any loss sustained by any party resulting from any act, omission or failure to act by PFJ, whether with respect to the exercise or enforcement of its rights or remedies under this Agreement, or otherwise, unless the loss is caused by PFJ’s gross negligence or willful misconduct. PFJ’s liability under this Agreement shall be limited to actual damages incurred by Customer as a direct result of PFJ’s gross negligence or willful misconduct. IN NO EVENT WILL PFJ BE LIABLE FOR INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES AND, ANY RIGHT OR CLAIM TO EITHER IS EXPRESSLY AND UNCONDITIONALLY WAIVED.
18.2. Except as otherwise required under law, PFJ makes no warranty with respect to goods, products or services purchased on credit through PFJ. PFJ further disclaims all warranties with respect to goods, products and services purchased on the Account, including, without limitation, the implied warranty of merchantability.
18.3. Customer acknowledges and agrees that PFJ is not liable to Customer for any loss, liability or damages Customer suffers which result from, are related to, or in any way are connected with any fraud control or purchase restriction measures PFJ elects to implement from time to time, unless such loss, liability or damage is a direct result of PFJ’s gross negligence or willful misconduct in implementing fraud control or purchase restriction measures PFJ has expressly agreed in writing to undertake for Customer.
19. Governing Law.
19.1. For Pilot Purchases: The validity, performance and all matters relating to the interpretation and effect of this Agreement and any amendments hereto or modifications hereof shall be governed by the substantive laws of the State of Tennessee, without reference to its conflicts of laws principles.
19.2 For SFJ Purchases: The validity, performance and all matters relating to the interpretation and effect of this Agreement and any amendments hereto or modifications hereof shall be governed by the substantive laws of the Province of Ontario, without reference to its conflicts of laws principles.
20. Notices. Any notice required or permitted shall be in writing and shall be validly given only if delivered in person or sent by registered or certified mail (return receipt requested, postage prepaid), reputable overnight courier, emailed to the email address listed, or faxed to the fax number listed for each Party (any notices sent by PFJ to Customer by email or fax are effective immediately upon transmission). Customer shall be solely responsible for updating its contact information, including its email address, if notices need to be sent to an alternate address in the future. Such update notices shall be sent in writing to PFJ as set forth in this section.
21. Confidentiality. All information furnished by either party or by any affiliate of PFJ in connection with this Agreement will be kept confidential (and will be used by the other party only in connection with this Agreement), except to the extent that the information: (i) is already lawfully known when received; (ii) becomes lawfully obtainable from other sources; (iii) is required to be disclosed in any document filed with the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, or any other agency of any government; or (iv) is required by law to be disclosed, provided that notice of the disclosure has been given (when legally permissible) by the party proposing to make such disclosure, which notice, when practicable, shall be given sufficiently in advance of the proposed disclosure to permit the other party to take legal action to prevent the disclosure. Without limiting the generality of the foregoing, Customer may not divulge to or discuss with third parties any pricing, pricing proposals, billing terms, credit limits, trade secret, system, program, or any other matter on which this Agreement is made, including word product or other programs or systems of PFJ, or other information regarding PFJ, including any agreements or contracts PFJ has with other companies or firms. Customer must take all necessary steps to ensure that the confidential information is not disclosed to, or used by any person, firm, or entity, except that Customer’s own employees and agents, and then only to the extent necessary to permit Customer to perform this Agreement. Notwithstanding the foregoing, nothing in this section or this Agreement prohibits PFJ from providing any information to its affiliates or third-party servicers in connection with the operation and maintenance of PFJ’s Direct Bill or other programs or services, and Customer expressly agrees to these disclosures and use of information. From time to time, such information will be shared by and between PFJ and other third parties in accordance with normal business practices including, but not limited to, to approve or decline Customer’s application, servicing and/or maintaining Customer’s account(s), the exchange of trade credit information, evaluating Customer’s transactions and payment experiences, opening and/or closing account(s), credit decisions, and to market additional PFJ products and services to Customer, unless Customer desires to opt out of the sharing of its information by providing written notice of such intent to PFJ.
22. Pilot Receivable LLC. Pilot Receivables LLC is a wholly owned subsidiary of Pilot Travel Centers LLC. Any payments received or processed by or through Pilot Receivables LLC will be credited to Customer’s Account hereunder and shall be considered a valid and binding payment under this Agreement.
23. Relationship of the Parties. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between PFJ and Customer.
24. Headings. These headings contained in these Terms and Conditions are for convenience of reference only and shall not affect the interpretation or meaning of this Agreement.
25. Entire Agreement. This Agreement, these Terms and Conditions, Customer’s Application, the Terms Confirmation, and Welcome Letter, which are incorporated fully as if set forth verbatim herein, constitute the entire agreement with respect to the billing arrangement between Customer and PFJ and supersedes any previous oral or written agreements.
26. FOR QUEBEC RESIDENTS: Customer and SFJ hereby acknowledge that for all Quebec residents, this document has been drafted in the English language only, at Customer’s request. In addition, the parties agree that all invoices sent pursuant to this agreement shall be in English and agree to waive any requirement, defense, law or ordinance that the invoices generated pursuant to this agreement must be in French. Le client et les SFJ reconnaissent par ceci cela pour tous les résidants du Québec, ce document a été rédigé dans l'anglais seulement, à la demande du client. En outre, les parties conviennent que toutes les factures envoyées conformément à cet accord seront en anglais et accepteront d'écarter n'importe quelle condition, défense, loi ou ordonnance qui les factures produites conformément à cet accord doivent être en français.