Terms And Conditions – FlightSpan Documentation

Last Revised: February 23, 2024

Thanks for using FlightSpan! These FlightSpan Terms and Conditions (these “Terms”), together with the Order for use of FlightSpan, which Order is incorporated herein by reference, as applicable, form the agreement (the “Agreement”) between you as the subscriber of FlightSpan (“Subscriber”, as further defined below) and JAARS as the licensor (“Licensor”). For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to the following terms.

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR FLIGHTSPAN USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY AS THE “SUBSCRIBER”.

This Agreement also forms the agreement between Licensor and any Authorized User or Subscriber Passenger that utilizes the FlightSpan service.

These Terms are effective as of the Service Start Date. These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for the Service, whether as part of a Free Trial or as incorporated into an Order, as applicable.

Definitions. As used herein:
1. “Aircraft” shall mean the make, model, and registration number of Subscriber’s aircraft in which an Authorized User’s Display Device is or may be located.
2. “Authorized Users” shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service and provisioned with credentials to access the Service subject to the terms of this Agreement.
3. “Display Devices” shall mean the display device of an Authorized User used to access, display, and use the Service.
4. “JAARS” shall mean JAARS, Inc., a North Carolina nonprofit corporation.
5. “Fees” shall mean the fees payable pursuant to Section 3 hereof and an applicable Order and/or Task Order, as applicable (defined below).
6. “Flight Hour” shall mean the number of hours the Service is in use by Subscriber or any of its Authorized Users for an active flight, as calculated by the Service.
7. “Free Trial” shall mean a free, non-production evaluation trial of the Service offered by Licensor for Subscriber’s evaluation of the Service
8. “Order” shall mean a written document executed by the Parties that describes the Service, Term, Fees, the number of Authorized Users and/or Display Devices, the permitted Aircraft, and any other applicable terms and conditions applicable to Subscriber’s access and use of the Service. Each executed Order is hereby incorporated into this Agreement in its entirety by this reference. In the event of a conflict between an Order and these Terms and Conditions, these Terms and Conditions shall govern.
9. “Party” or “Parties” shall mean each of Subscriber or Licensor or both of them collectively, as applicable.
10. “Service” shall mean Licensor’s Internet-based FlightSpan service and other related services identified on an Order or Task Order, including associated documentation made available to Subscriber in written form or online, as such documentation may be updated from time to time in Licensor’s sole discretion, subscribed to or received by Subscriber hereunder.
11. “Service Start Date” shall mean the date from which Subscriber first receives the Service, either as part of a Free Trial or under an applicable Order, whichever is earlier.
12. “Subscriber” means the entity any user of FlightSpan represents in accepting the Agreement or, to the extent not applicable, the user individually, whether as part of a Free Trial or pursuant to an Order.
13. “Subscriber Passenger” means any passenger of a Subscriber Aircraft that utilizes the Service, whether as a Subscriber customer or Subscriber flight crew member (including any employees, independent contractors, or other representatives) that is not an Authorized User.
14. “Subscriber Data” means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to Licensor in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Service (including any Authorized User).
15. “Subscriber Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
16. “Term” shall mean the period beginning on the Service Start Date and ending on the later of the termination of any Free Trial (defined above) or the date the last Order or Task Order in effect for the Services hereunder terminates or expires, as applicable.
License to Receive the Service.
1. Grant. Licensor hereby grants the Subscriber a limited, non-exclusive and non-transferable, worldwide license, without right of sublicense, during the Term to access, display, and use on Subscriber’s Display Devices, the Service, and to permit up to five hundred (500) Authorized Users to access and use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to Licensor. To the extent Subscriber desires to make the Service available to more than five hundred (500) Authorized Users, such permission shall be available for an additional fee, which shall be expressly documented in an Order.
2. Free Trial. To the extent Licensor provides Subscriber a Free Trial, such Free Trial shall last from the Service Start Date until such time as Licensor decides to terminate the Free Trial for any reason in its sole and absolute discretion. Licensor may terminate such Free Trial by revoking Subscriber’s access to the Service and/or by providing written notice of such termination to Subscriber (but Licensor shall have no obligation to provide such notice for termination to be effective). Upon termination of such Free Trial, Licensor shall have no liability or obligation to Subscriber whatsoever, including, without limitation, any obligation to return any Subscriber Data generated during the Free Trial.
3. Scope. The license granted to Subscriber hereunder is solely for Subscriber’s evaluation of the Service and non-production purposes (as applicable to a Free Trial) and/or internal business purposes (to the extent Subscriber executes an Order), and is limited to the access, display, and use of the Service by only an Authorized User. Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Licensor promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. Nothing in this Agreement shall obligate Licensor to continue providing access to any Service beyond the date when Licensor ceases providing such Service to third-party subscribers generally.
4. Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to (including any Authorized User):
  1. Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
  2. Modify, translate, adapt, alter, or create derivative works from the Service;
  3. Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Service;
  4. Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Service to any third party;
  5. Harvest, collect, gather, or assemble information or data regarding other subscribers;
  6. Transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
  7. Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
  8. Interfere with or disrupt the integrity or performance of the Service or the data contained therein;
  9. Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or
  10. Harass or interfere with another subscriber or end-user’s use and enjoyment of the Service.
5. Requirements of Use. Subscriber shall:
  1. Be responsible for identifying and authenticating Authorized Users and approving access by such Authorized Users; and
  2. Take reasonable measures to ensure Subscriber, its representatives, and any Authorized Users (a) control against unauthorized access or use of the Service by users and (b) maintain the confidentiality of their respective usernames, passwords, and account information.
Fees and Payment.
1. Service Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under this Agreement, commencing on the Service Start Date, Subscriber shall pay Licensor the fees identified in the applicable Order, plus any other applicable fees, costs, and expenses contained in the Order and/or this Agreement (collectively, the “Fees”). Subscriber shall inform Licensor of any changes to its use of the Services as limited by or described herein or in the Order (e.g., an increase in the number of Authorized Users beyond what is permitted in the Order) no later than seven (7) days after the date of such increase and the Order will be deemed amended accordingly.
2. Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, Licensor shall be permitted to suspend Subscriber’s access to the Service, limit Subscriber’s access to the Subscriber Data, and/or be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.
3. Taxes. Subscriber will be responsible for, and will promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added (VAT), or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency domestic or foreign (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by Licensor to Subscriber, or the amounts payable to Licensor therefore.
Professional Services. During the Term, Subscriber may request Licensor to perform professional services in the nature of software development, customization add-in, documentation, training, testing, integration services, and any other similar services that Licensor may offer (hereinafter, “Professional Services”). Licensor may offer certain limited Professional Services at no charge as part of the Service, to the extent Licensor determines in its sole discretion. Otherwise, Licensor may provide Subscriber with a written proposal, and when the Parties agree to all requirements and specifications of the proposed Professional Services, a task order for the Professional Services (a “Task Order”).
Access.
1. Service. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Service. Except with respect to Authorized Users or as otherwise expressly stated herein or on an applicable Order, Subscriber is prohibited from and will have no right to allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company) to access and/or use the Service.
2. Delivery and Acceptance. Licensor will make the Service available to Subscriber as indicated herein or on the Order. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by Subscriber on the day such Corrections are first made available to Subscriber or accessed by Subscriber, whichever is earlier.
Reports and Records. Subscriber shall maintain accurate records containing the following information, copies of which Licensor shall be entitled to receive upon seven (7) days prior written notice to Subscriber: (i) the make, model, and registration number of the Aircraft where at least one Display Device of an Authorized User is or may be located and (ii) the total number of Display Devices and Authorized Users. Licensor may, upon prior written notice to Subscriber, reasonably request Subscriber to maintain records containing additional information related to the Service and Subscriber’s use thereof. In addition, Licensor may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Service, as Licensor deems reasonably necessary, in order to determine Subscriber’s compliance with the terms of this Agreement.
Audits and Inspections. For the purpose of verifying compliance with this Agreement, Licensor (and Licensor’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit and inspect from time to time Subscriber’s offices, books, and records relevant to the Service and to observe the use made of the Service and the manner in which each Display Device and Authorized User accesses the Service. If such audit or inspection pursuant to this Section indicate that Subscriber is not in compliance with this Agreement (including any Order), such as more Flight Hours or Authorized Users accessing the Service than permitted and/or purchased by Subscriber under an applicable Order, Subscriber shall pay Licensor the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated herein or in the applicable Order). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Subscriber shall pay the different plus applicable interest and reimburse Licensor for Licensor’s reasonable costs associated with such audit or inspection.
Copyright Protection; Use Restrictions; Subscriber License Grant.
1. Subscriber agrees that the Service and all parts thereof, and its specifications, and rights therein, including without limitation the editorial coding and metadata contained therein, and all copyright, trademark or other intellectual property rights therein and thereto, are the property of Licensor or Licensor’s licensors. The works and databases included in the content of the Service are protected by applicable copyright and trademark laws. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Subscriber, and all such rights are hereby expressly reserved.
2. Subscriber agrees that only Authorized Users shall be permitted access to the Service as set forth herein or in an Order executed by the Parties. Except as set forth herein or in an Order, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.
3. Subscriber hereby grants to Licensor a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Subscriber Data as necessary to provide the Service in accordance with this Agreement, including but not limited to any such needs for purposes of development, debugging, and/or troubleshooting the Service, or for Subscriber billing. Subscriber Data submitted by Subscriber to the Service, whether posted by Subscriber or by an Authorized User, remains the sole property of Subscriber and Subscriber reserves all right, title, and interest in the Subscriber Data. Notwithstanding any other provision in this Agreement, Licensor may collect and provide certain Authorized User registration and statistical information or data analyzing the same, such as usage or Authorized User traffic patterns, in aggregate and anonymized form to third parties, provided that such information does not identify any Authorized User or Subscriber and contains no personally identifying information. Licensor may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
4. Subscriber hereby grants Licensor a non-exclusive, non-transferable, and royalty-free license to use Subscriber Marks for the limited purposes set forth in this Agreement, including as necessary for Licensor’s performance under this Agreement, to deliver the Service in accordance with this Agreement, and in marketing materials related to the Service.
5. Licensor will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Licensor will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.
Warranties; Disclaimer. Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required Board of Directors’ or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR ANY OTHER DOCUMENT INCORPORATED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND LICENSOR MAKES NO WARRANTIES, REPRESENTATIONS, ENDORSEMENTS, OR GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY DELIVERABLES, MATERIALS OR SERVICES FURNISHED OR PROVIDED TO SUBSCRIBER OR ANY USER UNDER THIS AGREEMENT OR THE RESULTS THEREOF. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID DELIVERABLES AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING, AS WELL AS ANY IMPLIED WARRANTIES OF TITLE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. NOTWITHSTANDING ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES GRANTED UNDER ANY OF THE TERMS OF THIS AGREEMENT, LICENSOR MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY OR FUNCTIONALITY OF THE THIRD-PARTY SERVICE INTEGRATION FEATURE OF THE SERVICES, WHICH FEATURE IS MADE AVAILABLE TO SUBSCRIBER AS-IS, OR REGARDING WEB CONTENT ACCESSIBILITY. FROM TIME TO TIME, LICENSOR MAY PROVIDE SUBSCRIBER WITH MATERIALS DESCRIBING THE SERVICES OR RELATED TO THE SAME. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT ANY SUCH MATERIALS PROVIDED ARE FOR INFORMATIONAL PURPOSES ONLY AND DO NOT ALTER SUBSCRIBER’S SOLE RESPONSIBILITY AND LIABILITY TO ENSURE THAT SUBSCRIBER CONTENT COMPLIES WITH APPLICABLE LAW AND INDUSTRY STANDARDS.
Indemnification; Release.
1. Indemnification.
  1. Subscriber Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all actual or threatened claims, including, without limitation, those by an Authorized User or Subscriber Passenger, for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses (including, without limitation, reasonable attorneys’ fees), alleging or arising from either of the following: (1) the infringement or violation of a third party’s registered patent, trade secret, copyright, or trademark by way of Licensor’s use of any Authorized User data or Subscriber Data (as applicable), Subscriber Marks, or other information or materials provided by Subscriber or any Authorized User (as applicable) in connection with this Agreement for Licensor’s provision of the Service; or (2) loss or damage to person or property, harm, death, any acts or failure to act, negligent, grossly negligent, or willful acts or omissions, mistake, wrongful death, survival actions, or any other personal injury claim arising from use of the Service by Subscriber or any of its Authorized Users or Subscriber Passengers (as applicable). Licensor reserves the right, at Licensor’s own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber will cooperate with Licensor in asserting any available defenses.
  2. Licensor Indemnity. To the extent the Parties hereto enter an Order, Licensor, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber to the extent such directly relates to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Subscriber Claim”) by way of Subscriber’s use of the Service that Licensor provides to Subscriber under this Agreement. This Section 10(a)(ii) shall not apply to the extent of any Free Trial but applies only to the extent the Parties enter into an Order for the Services hereunder.
  3. For purposes herein, each Party, when providing indemnification, will be termed an “Indemnifying Party” and each Party, when receiving the benefits of indemnification, shall be termed an “Indemnified Party.” The term “Indemnified Party” will include the other Party’s respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party’s obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party’s sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
  4. In the event a court of competent jurisdiction makes a determination that the Service infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Licensor determines that the Service likely infringes or otherwise violates such third party’s foregoing intellectual property rights, Licensor, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Service so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating Service, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Subscriber to continue using the allegedly infringing or violating portion of the Service; or (d) revoke the license to the allegedly infringing or violating Service and provide a pro-rata refund to Subscriber for all fees prepaid for the Service and not yet earned by Licensor.
  5. Licensor will have no obligation under this Agreement relating to any indemnification if a Subscriber Claim results from any of the following: (i) Subscriber’s continued use of the infringing or violating Service after Licensor first makes an applicable Correction available to Subscriber; (ii) Subscriber’s modification of the Service (including a third party acting on its behalf); or (iii) Subscriber’s use of the Service in any manner other than as permitted under this Agreement.
2. Release. THIS IS A RELEASE OF YOUR RIGHTS. READ CAREFULLY BEFORE SIGNING:
  - Subscriber (on behalf of itself and any of its Authorized Users), and each Authorized User on its own behalf (collectively “Releasing Parties”), agree that they have chosen voluntarily to fly on Aircraft utilizing the Service (“Released Activity”), and that the Released Activity involves risks, including without limitation, illnesses, injuries, and even death. Releasing Parties understand and agree that although the Service provides information for flight operations management, including but not limited to hazard reporting information, such information is based on data and/or information supplied by third parties, and Licensor does not control the accuracy or reliability of such information, nor does Licensor control how Subscriber or the Releasing Parties use or fail to use such information. Licensor cannot eliminate all risks or guarantee the safety of Releasing Parties or their property while they are participating in the Released Activity, and Releasing Parties agree to have made their own investigation of these risks, understand these risks, and assume them knowingly and willingly prior to participating in the Released Activity. Knowing the risks described above and in consideration of and return for the benefit of receiving the Service, Releasing Parties agree, for themselves and on behalf of their family, heirs, personal or legal representative(s), and assigns, to assume all risks and responsibilities surrounding Releasing Parties’ participation in the Released Activity and, to the maximum extent permitted by law, fully and irrevocably RELEASE, WAIVE and DISCHARGE Licensor, its officers, directors, employees and agents (collectively, the “Releasees”) from and against any and all liability, claims, damages, suits and causes of action that the foregoing parties may now or hereafter have against Releasees arising out of Releasing Parties’ participation in the Released Activity, including, without limitation, injury, harm, or death to Releasing Parties, loss or damage to Releasing Parties’ property, any acts or failures to act negligence, mistake, or failure to supervise by the Releasees. Releasing Parties recognize that the release in this Section 10(b) (this “Release”) means that they are giving up, among other things, rights to sue the Releasees for injuries, damages, or losses that they may incur as a result of participating in the Released Activity. Releasing Parties also understand that this Release binds them, their heirs, executors, administrators, and assigns. Releasing Parties have read this entire Release, fully understand it and agree to be legally bound by it.
Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS (“LICENSOR PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOSS OF USE), CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, EXCEPT FOR LICENSOR’S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 10, WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT (INCLUDING WRONGFUL DEATH AND SURVIVAL ACTIONS), CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY LICENSOR INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 10, IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THREE TIMES THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LICENSOR PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. SUBSCRIBER AGREES TO THIS LIMITATION OF LIABILITY ON ITS OWN BEHALF AND ON BEHALF OF ANY AUTHORIZED USER, WHICH SUBSCRIBER SHALL REQUIRE TO AGREE IN WRITING TO THE SAME BEFORE USING THE SERVICE OR FLYING ON ANY AIRCRAFT UTILIZING THE SAME.
Term; Termination. This Agreement shall be effective for the Term, unless terminated earlier in accordance herewith. Modifications in any ongoing Fees in connection with the Service shall be communicated to Subscriber no later than thirty (30) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Order. This Agreement, including all Orders and Task Orders, may be terminated as follows: (a) if either Party commits a material breach of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching Party (“Notice of Breach”), the Party giving such notice may then deliver a second written notice to the breaching Party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; (b) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect, or (c) Licensor determines in its discretion to cease operating the Service for third-party subscribers and provides Subscriber thirty (30) days’ advance written notice of the same. If this Agreement is terminated before the end of its then-current term (as identified on the applicable Order or Task Order) for any reason other than by Subscriber under the foregoing clauses (a) or (b) or by Licensor under the foregoing (c) in this Section, then Subscriber will forfeit any minimum fees set forth in an Order owed to Licensor and pay to Licensor as liquidated damages (i) any such minimum fees and (ii) as applicable to any Order, the amount due by Subscriber for the previous calendar month times the number of months remaining in the Term (as identified on the applicable Order), or with respect to a Task Order, the Total Estimated Fees plus any additional amounts due by Subscriber under the applicable Task Order ((i) and (ii) are collectively the “Liquidated Damages”) within 30 days after such termination. The parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor’ Credit Department), such notice will be deemed to be a Notice of Breach.
Confidentiality. Subscriber and Licensor understand and agree that in the performance of this Agreement each Party may have access to private or Confidential Information of the other Party, which either is marked as “confidential” or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under this Agreement. At all times and notwithstanding any termination or expiration of this Agreement, the receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Confidential Information of the disclosing Party, except as approved in writing by the disclosing Party. The receiving Party will only permit access to the Confidential Information of the disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this Agreement. The receiving Party will be responsible to the disclosing Party for any third party’s use and disclosure of the Confidential Information that the receiving Party provides to such third party in accordance with this Agreement. The receiving Party will use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Confidential Information as are commercially reasonable and customary for the type of Confidential Information. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party’s possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. All Confidential Information will remain the exclusive property of the disclosing Party. No public announcement, press release, or communication concerning this Agreement shall be made without the prior consent of the other Party. For purposes of this Agreement, “Confidential Information” means any valuable, non-public business information, including this Agreement and all matters discussed relating to this Agreement, that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party’s business and industry.
Miscellaneous.
1. Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by email or facsimile with confirmation by the above described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received and acknowledged as such or as stated in written evidence of receipt from the applicable mail courier.
2. Amendment. Licensor may modify these FlightSpan Terms and Conditions in its sole discretion by posting the revised terms to its website. You may be required to agree to such revised FlightSpan Terms and Conditions in order to continue using FlightSpan, but regardless, your continued use of FlightSpan or any other Service incorporating the FlightSpan Terms and Conditions after the effective date of such revisions constitutes your acceptance of and agreement to the revised terms. Except for such Licensor revisions to the FlightSpan Terms and Conditions in this Section 14(b), this Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and Licensor.
3. Assignment. This Agreement is not transferable, assignable, delegable, or sublicenseable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.
4. Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement and remain binding upon and for the benefit of the Parties hereto.
5. Independent Contractor. Licensor is acting in performance of this Agreement as an independent contractor.
6. Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.
7. Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
8. Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
9. Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
10. Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications, or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of North Carolina, United States of America (“North Carolina”), applicable to contracts made entirely within North Carolina and wholly performed in North Carolina, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court nearest to Waxhaw, North Carolina. Further, neither the United Nations Convention on Contractors for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
11. Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of Licensor.
12. Entire Agreement. This Agreement (with any Order and/or any Task Order or other documents, agreements, addenda, or policies identified herein and incorporated by reference) contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter. In the event of a conflict between these Terms and any Order, Task Order, or other documents (such as the documentation), agreements, addenda, or policies identified herein, these Terms shall prevail, followed by the applicable Order or Task Order, and then any other such documents.
13. Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed an original and all of which will constitute the same instrument.
14. Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one Party than against the other.
15. Export Laws Compliance. In no event shall Licensor be required to sell, export, reexport, transfer, divert, or otherwise dispose of any products, software and/or related technical information (collectively, “Deliverables”) covered by this Agreement if such activity is prohibited or restricted by any law or regulation of the United States or any other country having jurisdiction over the Deliverables and no authorization has been obtained from the applicable government authorities. Subscriber further agrees that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any Deliverables to any destination, entity, or person prohibited by laws or regulations of the United States, without obtaining prior authorization from the applicable governmental authorities as required by those laws and regulations. Further, Subscriber will give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Deliverables from Subscriber with the intention of selling, exporting, reexporting, transferring, diverting, or otherwise disposing of them. Subscriber is solely responsible for obtaining all licenses, permits, or authorizations Subscriber needs from the applicable agencies within the U.S. and/or any other countries to sell, export, reexport, transfer, divert, or otherwise dispose of the Deliverables outside the United States. Subscriber will be the exporter and importer of record and will be responsible for filing any documents and paying all duties and taxes necessary for the exportation and importation of the Deliverables.
16. Legal Counsel. Each Party acknowledges that it has had the right to seek independent legal counsel with respect to entering this Agreement, and that each Party has agreed to the terms of the same. No provision hereof will be construed against one Party by virtue of the fact that such provision was drafted by such Party.
17. Privacy Policy; Return of Data; Data Processing Addendum.
  1. Subscriber agrees to Licensor’s privacy policy available at https://docs.flightspan.com/privacy-policy/ and incorporated by reference into this Agreement.
  2. The Service includes limited data export capabilities determined by Licensor in its sole discretion, which are available to Subscriber and which Subscriber may use to export Subscriber Data, as and to the extent determined necessary and appropriate for Subscriber. Except for such data export capabilities offered within the Service or to the extent otherwise agreed in this Agreement or any addendum hereto, and/or to the extent required by applicable law, Licensor is not obligated to and will not return or otherwise export the Subscriber Data to Subscriber, and Subscriber understands and agrees that it is solely responsible for exporting such data within and/or prior to expiration the Term, including as necessary for Subscriber’s use and/or migration to another service upon expiration or termination of this Agreement.
  3. To the extent applicable, Subscriber agrees to Licensor’s GDPR data protection addendum, which is incorporated into this Agreement by reference.

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