Master Service Agreement
Last Updated: December 5, 2023
This Master Services Agreement along with any other terms and policies referenced herein, and are incorporated herein by reference and form an integral part hereof, as amended from time to time (including the terms and provisions set forth on the Sales Agreement Form (as defined below), collectively, these “Terms”)) constitute a legally binding agreement as of the Effective Date (as defined below) by and between (i) as applicable, Aircraft Performance Group, LLC, a Delaware limited liability company, and its subsidiaries Rocket Route Ltd., a United Kingdom private limited company, and APG Avionics LLC, a Delaware limited liability company (d/b/a Seattle Avionics) (“APG,” “us,” “we” or “our”) and (ii) you, either individually, or on behalf of your employer or any other entity which you represent (“Customer,” “you” or “your”) governing your access to, and your use of the APG website found at apgdata.com, any other related website owned, operated or made available by us (in each case, including subdomains) (the “Websites”), any application programming interfaces made available by us (“APIs”), any mobile application referencing these Terms (each, an “App”), along with any related websites, networks, or other services provided by us including, but not limited to, runway performance (Websites, APIs, and Apps are, collectively, the “Service”).
BY INSTALLING ANY OF THE APPs, APIs OR OTHERWISE ACCESSING OR USING THE SERVICE (SUCH DATE OF INSTALLATION, ACCESS, USE OR EXECUTION OF A SALES AGREEMENT FORM, WHICHEVER IS EARLIEST, THE “EFFECTIVE DATE”) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, INDEMNITY, AND LIMITATION OF LIABILITY PROVISIONS BELOW. IF YOU ARE USING THE SERVICE ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU: (A) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS; AND (B) AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE SERVICE. IF YOU DO NOT UNDERSTAND OR AGREE TO THESE TERMS, DO NOT INSTALL ANY OF THE APPs, APIs OR OTHERWISE ACCESS OR USE ANY OF THE WEBSITES OR SERVICE.
1. Subscription Term, Renewal and Fees Payment.
1.1. Sales Agreement Form.
Our Sales Agreement form may be completed and placed in various ways, among which, an online form or any other mutually agreed upon offline form delivered by Customer, including via mail, email or any other electronic or physical delivery mechanism (the “Sales Agreement Form”). Such Sales Agreement Form will list, among other items, the Service ordered, subscription plan, initial term and the associated pricing and fees. It will incorporate these Terms and our Privacy Policy.
1.2. Subscription Term and Subscription Auto-Renewal.
The Service is provided on a subscription basis for the term specified in your Sales Agreement Form, in accordance with the respective subscription plan purchased under such Sales Agreement Form (the “Subscription Term” and the “Subscription Plan”, respectively, and collectively the “Subscription”).
In order to ensure that Customer will not experience any interruption or loss of services, unless otherwise expressly stated in Customer’s Sales Agreement Form, Customer’s Subscription will automatically renew upon the end of the then applicable Subscription Term for successive periods of one year unless either Customer or us cancel the Subscription by written notice at least 90 days prior to the expiration of the then-current term; provided that, if we notify you of a price increase within that period and you cancel your Subscription within 30 days of our delivery of such notice, we will consider that cancellation timely. Notwithstanding anything to the contrary, we reserve the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing Subscriptions upon renewal.
Unless otherwise expressly stated in Customer’s Sales Agreement Form, we will attempt to automatically charge and/or invoice Customer the applicable Subscription Fees upon, prior to, or promptly after the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription, at least 90 days prior to the expiration of the then-current term, at any time by contacting us via email at support@apgdata.com. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
1.3. Subscription Fees.
In consideration for the provision of the Service (except for Trial Service), Customer shall pay us the applicable fees per the purchased Subscription, as set forth in its Sales Agreement Form (the “Subscription Fees”). Unless otherwise expressly stated in Customer’s Sales Agreement Form, Subscription Fees are stated in US dollars. Customer hereby authorizes us, either directly or through our payment processing service or our affiliates, to charge such Subscription Fees via Customer’s selected payment methods (including but not limited to wire transfers, electronic wallets, authorized credit card information or any other electronic means), upon due date. Unless expressly set forth herein, the Subscription Fees are non-cancelable and non-refundable.
In the event of failure to collect the Subscription Fees owed by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time, and/or suspend or cancel the Services provided to you, without notice.
1.4. Billing; Invoicing.
As part of registering or submitting billing information to the Service, Customer agrees to provide us with updated, accurate and complete billing information, and Customer authorizes us (either directly or through our affiliates, or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment methods, designated banking account, electronic wallets or any other electronic means, and to make any inquiries that we (or our affiliates and/or third-parties acting on our behalf) may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account or payment service providers (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company). In the event that Customer requests an invoice and does not autopay, unless otherwise expressly stated in Customer’s Sales Agreement Form, payment is due within thirty (30) days from date of invoice. Late payments shall bear a charge of the lesser of 5.0% per month or the maximum rate permitted by applicable law.
1.5. Taxes.
The Subscription Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Service hereunder (the “Taxes”), except for Taxes imposed on our income. If Customer is located in a jurisdiction that requires Customer to deduct or withhold Taxes or other amounts from any amounts due to us, please notify us, in writing, promptly at support@apgdata.com and we shall join efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax should be deemed as being added on top of the Subscription Fees, payable by Customer.
1.6. Discounts and Promotions.
Unless otherwise expressly stated in Customer’s Sales Agreement Form, if Customer received a special discount or other promotional offer, Customer acknowledges that upon renewal of its Subscription, we will renew such Subscription, at the full applicable Subscription Fee at the time of renewal without any special discount or other promotional offer.
1.7. Payment through Reseller.
If Customer purchased a Service from a reseller or distributor authorized by us (“Reseller”), then to the extent there is any conflict between these Terms and the agreement entered between Customer and the respective Reseller, including any sales agreement or purchase order (“Reseller Agreement”), then, as between Customer and us, these Terms shall prevail.
Any rights granted to Customer in such Reseller Agreement which are not contained in these Terms, apply only in connection with the Reseller. In that case, Customer must seek redress or realization or enforcement of such rights solely with the Reseller and not from us. For clarity, Customer’s access to the Service is subject to our receipt from Reseller of the payment of the applicable fees paid by Customer to Reseller. Customer hereby acknowledges that at any time, at our discretion, the billing of the Subscription Fees may be assigned to us, such that Customer shall pay us directly the respective Subscription Fees.
1.8. Subscription Upgrade.
During the Subscription Term, Customer may upgrade its Subscription Plan by either: (i) upgrading to a higher type of Subscription Plan; (ii) adding add-on features and functionalities; and/or (iii) upgrading to a longer Subscription Term (collectively, “Subscription Upgrades”). Some Subscription Upgrades or other changes may be considered as a new purchase, hence may restart the Subscription Term as indicated within the Service and/or the Sales Agreement Form. Upon a Subscription Upgrade, Customer may be billed for the applicable increased amount of Subscription Fees, at our then-current rates (unless indicated otherwise in a Sales Agreement Form), either: (1) prorated for the remainder of the then-current Subscription Term, or (2) whenever the Subscription Term is being restarted due to the Subscription Upgrade, then the Subscription Fees already paid by Customer will be reduced from the new upgraded Subscription Fees, and the difference shall be due and payable by Customer upon the date on which the Subscription Upgrade was made.
1.9. Responsible Entity.
The relevant APG responsible entity shall be the APG entity stated on a validly executed Sales Agreement Form in relation to Services provided to you (“APG Responsible Entity”). Such APG Responsible Entity shall be the only relevant APG entity that shall be responsible for any liability, if any, to you for any claims for loss and damage in relation to such Service. For the avoidance of doubt, you agree and acknowledge that you shall not have (and you hereby fully waive) any claims, demands, suits, causes of action, liabilities, obligations, judgments, orders, debts, liens, contracts, agreements, covenants and causes of action of every kind and nature, whether known or unknown against any APG entity or its affiliates other than the APG Responsible Entity listed on your Sales Agreement Form and in relation to a particular Service provided to you.
2. Term and Termination; Suspension.
2.1. Term.
These Terms are in full force and effect, commencing upon the Effective Date, until the end of the Service, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
2.2. Termination by Us.
We may terminate the Service and these Terms: (i) upon Customer’s breach of any of the provisions under these Terms, including but not limited to Customer’s failure to make payment in accordance with these Terms; or (ii) in the event where the Customer: (1) becomes insolvent, (2) is generally unable to pay, or fails to pay, its debts as they become due, (3) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (4) makes or seeks to make a general assignment for the benefit of its creditors, or (5) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business. Upon a termination of the Services and these Terms for any of the foregoing reasons, you hereby acknowledge and agree that APG shall have no responsibility or obligation to refund the prorated portion of any prepaid amount paid by you.
We may also terminate or suspend the Service and these Terms at any time for any reason or no reason and without notice. Where the Service and these Terms are terminated pursuant to the foregoing sentence, we will refund the prorated portion of any prepaid amount paid by you in relation to the unused portion of the Service. In the event we become unable to support a specific Service, we, in our sole discretion, may terminate such Subscription by providing notice to you. In such event, we will refund the prorated portion of any prepaid amount paid by you (and solely with respect to the terminated Service) from the date of such termination.
2.3. Termination by Customer.
Subject to the provisions in Section 1.2, Customer may terminate its Subscription to the Service by cancelling the Service, whereby such termination shall not derogate from Customer’s obligation to pay applicable Subscription Fees. Unless mutually agreed otherwise by Customer and us in a written instrument, the effective date of such termination will take effect at the end of the then-current Subscription Term, and Customer’s obligation to pay the Subscription Fees throughout the end of such Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any pre-paid Subscription Fees.
2.4. Effect of Termination of Service.
Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to you hereunder shall terminate. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Subscription Fees. Upon the expiration of the Term you shall (i) immediately stop accessing and using the Services and (ii) clear any client-side data cache derived from the Services.
2.5. Survival.
Notwithstanding anything to the contrary, Sections 2.5, 4, 6, 7, 8, 9, 13, and 14 shall survive the termination or expiration of these Terms and continue to be in force and effect in accordance with their applicable terms.
2.6. Suspension.
Without derogating from our termination rights above, we may decide to temporarily suspend our Service, in the following events: (i) we believe, at our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party, and/or may lead to any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party are using the Service in breach of these Terms or applicable Law; or (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become overdue. The aforementioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.
In addition, we may decide to temporarily suspend our Service in the event that you provide us with written notice (and reasonable supporting information upon request) that your applicable aircraft is not operating or out of service as a direct result of aircraft equipment failure (e.g., broken or being repaired). In such event, provided that you are otherwise in compliance with these Terms, APG, in its sole discretion, may offer you a credit for a limited portion of any prepaid Subscription Fees during such period when your applicable aircraft is not operating or out of service.
3. Our Service.
3.1. Modification or Discontinuation of the Service.
We may add, modify or discontinue any feature, functionality or any other tool, within the Service, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement via the Service or by sending you an email.
3.2. No Contingency on Future Releases and Improvements.
You hereby acknowledge that your purchase or use of the Service hereunder are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of a certain Service beyond its current Subscription Term or dependent on any public comments we make, orally or in writing, regarding any future functionality or feature.
3.3 Takeoff and Landing Data.
When our Service includes supplying takeoff and landing data, it is understood that APG shall utilize the National Oceanic Survey Airport Obstruction Chart, applicable approach plates, and the International Civil Aviation Organization Airport Characteristics Data Bank for the purpose of obtaining airport data for compliance with the relevant regulatory agency requirements. This does not preclude Customer from providing APG with any additional airport data should Customer so desire. In addition to other disclaimers and limitations of liability set forth in these Terms, Customer acknowledges and agrees that APG is not responsible for verifying the accuracy or appropriateness of any data obtained from any governmental agency, aircraft/engine manufacturer, or Customer.
4. Intellectual Property Rights; License.
4.1. Our Intellectual Property.
The Service, inclusive of materials, such as software, databases, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks, domain names, business names, topography and services marks, any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “APG Materials”), are the property of APG and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and APG, APG retains all right, title and interest, including all intellectual property rights, in and to the APG Materials (i) whether such APG Material is registered or not; (ii) including any applications to protect or register such rights; (iii) including all renewals and extensions of such rights or applications; (iv) whether vested, contingent or future; and (v) wherever existing.
4.2. Your Access and Use Rights.
Subject to the terms and conditions of these Terms, and your compliance thereof, we grant you a revocable, limited, worldwide, non-exclusive, non-transferable, non-sublicensable, non-assignable right to access and use the Service, during the applicable Subscription Term, solely for Customer’s internal purposes of accessing the Company’s professional and technical databases and determining runway analysis performance, weight and balance, and flight planning parameters, strictly in accordance with these Terms. You understand that your access rights are personal and not transferable, that your rights will be terminated by the Company if you do not abide by these Terms, and that you may have liability to the Company if you misuse the Service.
4.3. Use Restrictions.
Except as expressly permitted in these Terms, you may not, and you represent you will not use the Service in breach of any applicable laws or regulations, or for any illegal or unlawful or fraudulent purposes in any jurisdiction. Further, you may not, and you represent you will not: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the Service or copies thereof to any third party, including, but not limited to your affiliates or subsidiaries; (ii) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (iii) reverse engineer, disassemble, decompile, modify, create derivative works of or otherwise manipulate any portion of the Service, in whole or in part, except to the extent expressly permitted by applicable law, and then only after prior written notification has been given to APG specifying the permitted manipulation; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service, or any part thereof; (v) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (vi) remove, deface, obscure, or alter APG’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service; (vii) use the Service for competitive purposes, including to develop or enhance a competing service or product; (viii) export or re-export, directly or indirectly, any portion of the Service into any country prohibited by the applicable laws and regulations in the United States of America; or (ix) encourage or assist any third party to do any of the foregoing.
4.4. User Content.
As part of the Service provided to you, you may be able to upload certain content to an APG App or platform, including any aircraft and flight plan information and which may include personal data protected by applicable law (“Personal Data”) (“User Content”). By posting or uploading the User Content to an APG App or platform, you represent and warrant that (i) you have all the necessary rights to post or upload such User Content, and (ii) your posting or uploading of such User Content does not infringe or violate the rights of any third party. You hereby grant APG a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to use the User Content for purposes of providing the Service to you. You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal; (v) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to Personal Data; or (vi) contains any information or content that is not correct, accurate and current. APG reserves the right, but is not obligated, to reject and/or remove any User Content that APG believes, in its sole discretion, violates these provisions.
4.5. User Indemnity.
You agree to indemnify, defend and hold harmless APG and its affiliates, shareholders, directors, officers, employees and agents from and against all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, damages, penalties, fines, fees, costs, expenses (including reasonable attorneys’ fees), liabilities, taxes, and losses suffered or incurred by us arising out of or relating to your breach of any provision in Sections 4.3 or 4.4.
4.6. Feedback.
As a User of the Service, you may provide suggestions, comments, feature requests or other feedback to any Service (“Feedback”). Such Feedback is deemed an integral part of APG Materials, and as such, it is the sole property of APG without restrictions or limitations on use of any kind. APG may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) irrevocably assign to APG any right, title and interest you may have in such Feedback; and (ii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.
5. Trial Service; Pre-Released Services.
5.1. Trial Service.
We may offer, from time to time, part or all of our Service on a free, no-obligation trial version (“Trial Service”). The term of the Trial Service shall be set forth in a mutually agreed trial agreement (“Trial Agreement”), unless terminated earlier by either Customer or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without liability or explanation to you.
5.2. Pre-Released Services.
Note that we may offer, from time to time, certain Services in an Alpha or Beta versions (the “Pre-Released Services”) and we use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.
5.3. Governing Terms of Trial Service and Pre-Released Services.
The Trial Service and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Service and Pre-Released Services (i) such services are licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or implied, of any kind and (ii) TO THE FURTHEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF APG, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SERVICE) EXCEED US$100. We make no promises that any Trial Service and/or Pre-Released Services will be made available to you and/or generally available. To the extent there is any conflict between these Terms and the Trial Agreement in respect of the Trial Service, then these Terms shall prevail.
6. Confidentiality.
6.1. Confidential Information.
In connection with these Terms and the Service (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) your personal information provided to us (“Customer Data”) is regarded as your Confidential Information, and (ii) our Service, Trial Service and/or Pre-Released Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
6.2. Confidentiality Undertakings by the Receiving Party.
The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
6.3. Compelled Disclosure.
Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
7. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
7.1. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, AND APG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR USE, AND ALL WARRANTIES ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.2. APG DOES NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICE, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND/OR SERVICE ARE FREE FROM VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIME BOMBS OR OTHER HARMFUL CODE. WE FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
7.3. WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT OUR SERVICE (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. APG AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING THE SERVICE OR ANY OTHER PERFORMANCE UNDER THESE TERMS. YOU ACKNOWLEDGE THAT NONE OF THE APG’S DATA MADE AVAILABLE AS PART OF THE SERVICE IS REAL TIME DATA.
8. Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
8.1. IN NO EVENT SHALL WE/APG RESPONSIBLE ENTITY AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THIRD PARTY SERVICE PROVIDERS), BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, USE, BUSINESS, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE FAILURE OF SECURITY MEASURES AND PROTECTIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.2. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY FOR US/APG RESPONSIBLE ENTITY AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE ITS THIRD-PARTY SERVICE PROVIDERS), UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES AND THE SERVICE), EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY YOU (IF ANY) DURING THE 12 CONSECUTIVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8.3 If a court of competent jurisdiction determines that applicable law implies warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on our liability set forth in this Section 8 will apply to the fullest extent permitted by law. If we cannot exclude or limit a warranty or liability implied by law, these additional terms will be read and construed subject to such provisions of law.
9. Specific Laws; Reasonable Allocation of Risks; Indemnification; Customer Insurance.
9.1. Specific Laws.
Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.
9.2. Reasonable Allocation of Risks.
You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.
9.3. Indemnification.
You agree to indemnify, defend and hold harmless APG and its affiliates, shareholders, directors, officers, employees and agents (together “Indemnified Parties”) from and against all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, damages, penalties, fines, fees, costs, expenses (including reasonable attorneys’ fees), liabilities, taxes, and losses (“Adverse Consequences”) suffered or incurred by any Indemnified Party arising out of or relating to Customer’s reliance on and/or use of the Service to be supplied by APG hereunder (each, a “Claim”), except to the extent of any obligation, liability, claim or remedy in tort due to the reckless misconduct of APG. An Indemnified Party seeking indemnification hereunder shall promptly give you notice of the initiation of a Claim of which it has actual knowledge. The Indemnified Party shall be entitled to participate in the defense of any such Claim by counsel of its choosing, at the indemnifying party’s sole cost and expense.
9.4 Customer Insurance.
Throughout the Subscription Term, Customer acknowledges and agrees that it will maintain commercially reasonable general liability insurance, including, without limitation, the operation of Customer’s aircraft, with limits of not less than amounts commercially customary in the flight department industry for Customer’s operations, covering bodily injury and property damage liability.
10. Export Controls; Sanctions.
The Service may be subject to U.S. or foreign export controls, Laws and regulations (the “Export Controls”), and you acknowledge and confirm that: (i) you are not located or use, export, re-export or import the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) you are not: (a) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (currently, Cuba, Iran, Syria, North Korea, or the Crimea region of Ukraine), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (c) otherwise the target of U.S. sanctions. Customer is solely responsible for complying with applicable Export Controls and sanctions which may impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the Services and/or the Customer Data and Customer Data is not controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder.
11. Modifications.
Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide Customer with notice as appropriate under the circumstances, e.g., by displaying a notice within the Service or by sending Customer an email. Your continued use of the Service after the changes have been implemented will constitute your acceptance of the changes.
12. Government Use.
If Customer is part of a U.S. Government agency, department or otherwise, either federal, state or local (a “Government Customer”), then Government Customer hereby agrees that the Service under these Terms qualifies as “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, FAR 12.212, Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7201, and DFARS 252.227-7014. In addition to being bound by these Terms, Government Customer further acknowledges and agrees that it shall be bound by the terms of this Section 12. Government Customer’s technical data and software rights related to the Service include only those rights customarily provided to the public as specified in these Terms in accordance with FAR 12.212, FAR 27.405-3, FAR 52.227-19, DFARS 227.7202-1 and General Services Acquisition Regulation (“GSAR”) 552.212-4(w) (as applicable). In no event shall source code be provided or considered to be a deliverable or a software deliverable under these Terms. We grant no license whatsoever to any Government Customer to any source code contained in any deliverable or a software deliverable. If a Government Customer has a need for rights not granted under the Terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. Any unpublished-rights are reserved under applicable copyright laws. Any provisions contained in these Terms that contradict any Law applicable to a Government Customer, shall be limited solely to the extent permitted under such applicable Law.
13. Governing Law and Jurisdiction; Class Action Waiver and Mandatory Arbitration.
13.1. Governing Law; Jurisdiction.
These Terms are governed by the laws of the State of Colorado, USA without recourse to choice of law statutes or principles that would otherwise result in the application of the law of any other jurisdiction. You and us mutually agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Notwithstanding the foregoing, APG reserves the right to seek injunctive relief in any court in any jurisdiction.
13.2. Class Action Waiver.
WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND APG AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and APG mutually agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
13.3. Arbitration.
To the extent permitted under applicable law, you and APG hereby irrevocably agree to the following provisions:
13.3.1 Dispute resolution and Arbitration.
Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
13.3.2 Exception.
Notwithstanding clause 13.3.1 above, you and APG both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law. In addition to the above, notwithstanding clause 13.3.1 above, APG may file a suit in a court of law against you to address infringement claims or injunctive relief.
13.3.3 Arbitration Process Rules.
In the event of any dispute, claim or controversy between or among the parties to these Terms arising out of or relating to these Terms or any breach thereof, including, without limitation, any claim that these Terms or any of its parts is invalid, illegal or otherwise voidable or void, whether such dispute, claim or controversy sounds in contract, tort, equity or otherwise, and whether such dispute, claim or controversy relates to the meaning, interpretation, effect, validity, performance or enforcement of these Terms, such dispute, claim or controversy shall be settled by and through an arbitration proceeding to be administered by the American Arbitration Association (or any like organization successor thereto) in Castlerock, Colorado, in accordance with the American Arbitration Association’s Commercial Arbitration Rules. Each of the Parties to these Terms hereby agrees and consents to such venue and waives any objection thereto. The arbitrability of any such dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of the American Arbitration Association. Both the foregoing agreement of the parties to these Terms to arbitrate any and all such disputes, claims and controversies and the results, determinations, findings, judgments and/or awards rendered through any such arbitration shall be final and binding on the parties hereto and may be specifically enforced by legal proceedings. Notwithstanding any provision of this these Terms relating to which state laws govern these Terms, all issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and the federal common law of arbitration. The award of the Arbitrator shall be final and binding on the parties. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under these Terms shall be kept confidential to the maximum extent possible.
13.3.4 Special Statute of Limitation.
Any arbitration must be commenced by filing a demand for arbitration within 2 years after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits such limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
13.3.5 Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Dispute Notice”). The Dispute Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Dispute Notice is received, you or us may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Without derogating from the generality of the confidentiality protection under Section 6 above, all documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Except as required to enforce the arbitrator’s decision and award, neither you nor us shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
14. General Provisions.
14.1. Translated Versions.
These Terms were written in English and may be translated into other languages for your convenience. If a translated (non-English) version of these Terms conflicts in any way with their English version, the provisions of the English version shall prevail.
14.2. Force Majeure.
Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
14.3. Relationship of the Parties; No Third-Party Beneficiaries.
The parties are independent contractors. These Terms and the Service provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Except as expressly set forth in these Terms, there are no third party beneficiaries to these Terms.
14.4. Notice.
We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section 14.4. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Sites or posting in your account, text, in-app notification, e-mail, phone or first class, airmail, or overnight courier. You further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided via email to support@apgdata.com.
14.5. Assignment.
These Terms and any and all rights and obligations hereunder or thereunder, may be transferred or assigned (whether in a transfer, merger, sale of stock, sale of assets, change of control or other transaction (each, an (“Assignment”)) by you without our written approval; provided that you must provide us with written notice of such Assignment prior to or within ten (10) days after completion of any such Assignment and such notice shall provide us reasonable information with respective to the buyer/assignee (including, but not limited to, the buyer/assignee’s name, address, contact information, contact person). Upon an Assignment, these Terms shall be automatically binding upon the buyer/assignee and buyer/assignee shall assume all obligations set forth herein and therein. At any time within 60 days of APG’s knowledge of any such Assignment, APG, in its sole discretion, may terminate these Terms (including the Service) and the Sales Agreement Form without refund to you, buyer/assignee or any of your respective affiliates for any prorated portion of any prepaid amount for the Service. Notwithstanding the foregoing, provided that you are otherwise in compliance with these Terms, APG, in its sole discretion, may offer you a credit for a prorated portion of any prepaid Subscription Fees, which such credit may be applied to another aircraft of Customer or its affiliates.
We may effectuate an Assignment and/or transfer ownership rights and title in the Service to a third party without your consent or prior notice to you.
Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and assigns.
14.6. Severability.
These Terms shall be enforced to the fullest extent permitted under applicable law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
14.7. No Waiver.
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
14.8 Communications.
By using the Services, you consent to receiving certain electronic communications from us as further described in these Terms or our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. You agree that the Company may send periodic email newsletters to email addresses used to subscribe to the Services or otherwise register with Company in connection with the Services. If you are a European citizen and the General Data Protection Regulation (“GDPR”) applies to you, you can find details about your rights under the GDPR in our Privacy Policy.
14.9 Notice Regarding Apple.
Apple Computer Inc. (or its applicable affiliate) (“Apple”) as host of the Service source, has the following additional requirements for these Terms:
a. Acknowledgement: You acknowledge that these Terms are concluded between you and APG only, and not with Apple, and APG, not Apple, is solely responsible for the Service download and the content thereof. If these Terms provide for usage rules for the Service that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise is in conflict with, the App Store Terms of Service as of the Effective Date the Usage Rules or App Store Terms of Service will govern where more restrictive.
b. Scope of License: The license granted to you for the Service is a non-transferable license to use the Service on an iPhone/iPad iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
c. Maintenance and Support: You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
d. Warranty: Apple makes no warranties, whether express or implied by law. In the event of any failure of the Service to conform to any applicable APG warranty, you may notify Apple, and Apple will refund the purchase price for the Service to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be APG’s responsibility.
e. Product Claims: You acknowledge that APG, not Apple, is responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. Intellectual Property Rights: You acknowledge that, in the event of any third-party claim that the Service or your possession and use of that the Service infringes that third party’s intellectual property rights, APG, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
g. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. Developer Name and Address: Any end-user questions, complaints or claims with respect to the Service should be directed to: Aircraft Performance Group, LLC, 10375 Park Meadows Dr. #350 Lone Tree, CO 80124.
i. Third Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Service, e.g., you must not be in violation of your wireless data service agreement when using the Service.
j. Third Party Beneficiary: You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms set forth in Section 14.9, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the terms of this Section 14.9 against you as a third party beneficiary thereof.