Terms of Use
Traxxall Terms of Use
Overview
Traxxall Services Inc., Traxxall Technologies Inc., and Traxxall Technologies, LLC (“Traxxall,” “we,” “us,” or “our”) has established a public website (the “Public Site”) and a password-protected, restricted access website (the “Private Site” and collectively with the Public Site, the “Site”), including a portal providing access to the web-based Traxxall Maintenance Tracking Application (the “Application”). Access to the Private Site is for Traxxall clients to whom Traxxall has issued a username and password and who have (or are members of an organization which has) entered into a separate agreement with Traxxall. As a condition to using the Site, You agree to be bound by, and to comply with, all of the terms of use set forth herein (the “Terms” or the “Agreement”). This Agreement is a legal agreement between You (either solely as an individual or jointly with a single entity on whose behalf You are accessing the Application) and Traxxall and it governs Your use of the Site. If You do not agree with the Terms or do not wish to be bound by the Terms, Your sole and exclusive remedy is to log out of the Site (if applicable) and to discontinue all use of the Site.
DO NOT USE THE APPLICATION OR ACCESS THE SITE, unless and until You have carefully read the Terms of this Agreement and the applicable privacy policy (located at https://www.traxxall.com/privacy-policy/) (the “Privacy Policy”) and agree to bound by these provisions. If You access the Application, You further agree to be bound by the applicable End User License Agreement (the “EULA”). If You do not agree to the Terms, the Privacy Policy, and the EULA (if applicable), do not click on the “I Agree” button (if applicable). In using and accessing the Site, be sure to abide by all local, state, and federal laws. It is Your responsibility to know what those laws are and how they apply to You. The use of the Site generally and the Application specifically indicates that You have (a) had the opportunity to inquire about applicable local, state, federal, and foreign laws and (b) read and understand, and accept all of the Terms of, this Agreement and the Privacy Policy. THIS AGREEMENT INCLUDES A WAIVER OF YOUR RIGHTS (IF ANY) FOR ANY DISPUTE TO BE LITIGATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES.
If You are accessing or using the Application on behalf of a company, legal entity, association, partnership, organization, or other entity (the “Organization”), You accept and agree to the Terms of this Agreement and the Privacy Policy (as applicable) on behalf of the Organization, and You represent and warrant that You have the authority to bind the Organization thereto. In such event, when this Agreement uses the words “You” or “Your,” it will refer and apply collectively to both You and that Organization. If at any time You do not have the authority to bind the Organization to the Terms of this Agreement or the Privacy Policy (as applicable), You, the individual, may not access or use the Application. By providing You, the individual, with access credentials to use the Application, the Organization authorizes You, the individual, to bind the Organization for the sole purpose of agreeing to this Agreement and the Privacy Policy. Even if You are accessing or using the Application on behalf of an Organization, You agree that You, as an individual, are bound by this Agreement and the Privacy Policy (as applicable). If You do not 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 USING AN EMAIL ADDRESS PROVIDED BY YOUR EMPLOYER OR ANOTHER ENTITY ON WHOSE BEHALF YOU ARE ACTING, 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 “ORGANIZATION” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY, AS APPLICABLE.
To the extent You are provided with access to the Application, You acknowledge and agree that the Application is licensed, not sold, to You by Traxxall for use strictly in accordance with the Terms of this Agreement. Traxxall hereby reserves all rights not expressly granted to You in this Agreement. Traxxall provides certain services pursuant to other terms and conditions or agreements with its clients (including, without limitation, access to the Application), and to the extent You use such services You also shall be obligated to abide by such other terms and conditions or agreements.
These Terms are effective as of the date You first click “I agree” (or similar button or checkbox) or use or access the Site, whichever is earlier. 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 Traxxall, create an account, or place an order with Traxxall related to the Site or Application. You also indicate Your assent to these Terms by accessing or using the Site
1.1 These Terms govern Your use of the Site and, if applicable, our Traxxall maintenance tracking service (including Your access to the Application through the Site) (the “Service”) and any additional services which incorporate them by reference.
1.2 If Traxxall has provided You with credentials to access the Service through Traxxall’s online management system (the “Traxxall System”) included in the Private Site, Traxxall grants You a revocable, non-exclusive, non-transferable, limited license to use the Service and its output (including, without limitation, reports and analytics) solely for Your personal, internal business purposes strictly in accordance with the Terms of this Agreement and the EULA. You shall permit Traxxall to audit Your use of the Service to confirm compliance with this Agreement. Such audit may be conducted at Traxxall’s expense and in such a manner as not to unreasonably interfere with Your normal conduct of business. The Service is offered on an as-available basis and may allow You real-time access to the Traxxall System via the Internet, to assist the Organization in establishing and monitoring data as required by the OEM and under the applicable governing aviation authority regulations.
1.3 You agree not to, and You will not permit others to, (a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Site or Service in any form or media or by any means; or (b) reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Site or Service; or (c) access all or any part of the Site or Service in order to build a product or service that competes with the Site or Service; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Site or Service or its output (including, without limitation, reports and analytics), or otherwise make the Site or Service or its output (including, without limitation, reports and analytics) available to any third party (e.g., as a service bureau); or (e) circumvent or disable any security or other technological features or measures of the Site or Service. Any attempt to perform any of the restricted activities described in this Agreement is a violation of the rights of Traxxall. If You breach any of these restrictions, You may be subject to prosecution, damages, and termination of this Agreement (including use of the Service).
1.4 You agree to maintain, manage, and keep confidential Your user name and password for the Private Site generally and the Traxxall System specifically and not share them with any other individual or entity. Traxxall shall not be responsible (and You and/or the Organization shall be solely responsible) for any unauthorized access to Your account due to Your or the Organization’s failure to properly manage its user names and passwords, including, by way of example, the Organization’s failure to remove an employee’s user name and password upon his/her termination of employment.
1.5 Traxxall reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Site and Service or any service to which it connects, with or without notice and without liability to You. Traxxall may from time to time provide enhancements or improvements to the features/functionality of the Site or Service, which may include patches, bug fixes, updates, upgrades, and other modifications (“Updates”). Updates may modify or delete certain features and/or functionalities of the Site or Service or delete or remove certain information (including Customer Data) previously accessible in the Site or Service. You agree that Traxxall has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Site or Service to You. You further agree that all Updates will be (i) deemed to constitute an integral part of the Application, and (ii) subject to the Terms and conditions of this Agreement.
1.6 The Site or Service may display, include, or make available third-party content (including data, information, applications, and other products services) or provide links to third-party websites or services (“Third-Party Services”). You acknowledge and agree that Traxxall shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Traxxall does not assume and shall not have any liability or responsibility to You or any other person or entity for any Third-Party Services. Third-Party Services and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
1.7 In order to effectively use the Service, You must provide: (i) accurate and complete historical baseline data for each aircraft (each an “Aircraft”) each engine (each an “Engine”) and each APU (each an “APU”) enrolled in the Application, (ii) accurate and complete OEM maintenance manuals (including all updates thereto) for each Aircraft, Engine, and APU, as applicable (“Manuals”), (iii) accurate and complete maintenance records, and (iv) any other information reasonably requested by Traxxall. Traxxall shall use the information provided by You hereunder in connection with providing the Service and otherwise pursuant to the applicable Terms of this Agreement, the EULA, and the Privacy Policy. Other than such information regarding Yourself as an individual as Traxxall may expressly request, You agree to not, directly or indirectly, provide to Traxxall any personally identifiable information relating to any identified or identifiable natural person, including without limitation, any social security numbers or other identifiers.
2.1 The Site, the Service and the output from the Service (including, without limitation, reports and analytics), including without limitation all copyrights, patents, trademarks, trade secrets, and other intellectual property rights, are and shall remain the sole and exclusive property of Traxxall. Any feedback, comments, ideas, improvements, or suggestions (collectively, “Suggestions”) that You provide to Traxxall with respect to the Site or Service shall be and remain the sole and exclusive property of Traxxall. To the extent You have or obtain any intellectual property rights in or to such Suggestions, You hereby assign all such rights to Traxxall free of all liens and encumbrances. Traxxall shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without any credit or any compensation to You. In addition, Traxxall shall have and retain the right to collect, store, and use usage data derived from Your use of the Site and Service (“Usage Data”) for its and its affiliates’ own business purposes, including, without limitation, support, operational planning, product innovation and sales and marketing of the Site, the Service, and other services. Traxxall agrees not to publicly disclose any Usage Data in a manner that could reasonably be expected to identify or be traced back to You.
2.2 “Customer Data” means the data entered by You or other authorized users of the Organization after logging in to the Traxxall System for the purpose of using the Service or facilitating Your use of the Service, including, without limitation, the Manuals and other information You provide through the Service or otherwise under this Agreement. Traxxall hereby acknowledges and agrees that as between You and Traxxall, except as otherwise provided herein, all rights, title, and interest in and to Customer Data are and shall remain Your property, and all intellectual property rights (including copyright, trademark, and trade secret rights) in Customer Data are and will remain Your property. You hereby grant to Traxxall during the term of this Agreement all of the necessary rights or license to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Customer Data via the Application as necessary for the purposes of Your use of the Application pursuant to this Agreement. In addition to the foregoing, Traxxall also has, and You hereby grant to Traxxall, a perpetual, irrevocable, royalty-free, fully paid-up, nonexclusive right and license to use any Customer Data (i) for Traxxall’s and its affiliate(s)’s internal business purposes, including, without limitation, developing or improving products or services, and (ii) to make any modifications or improvements to the Service or any other services and to offer such modifications or improvements on a commercial basis to You and/or any third party. For the avoidance of doubt, “Customer Data” does not include any output of the Service (including, without limitation, reports and analytics), all of which is Traxxall’s property and Traxxall’s Confidential Information. Traxxall has no obligation to maintain or return Customer Data to You or to ensure that Customer Data remains accessible through the Site or Service. You should keep a complete backup of all of Your Customer Data at all times separate and apart from the copy provided to Traxxall. You expressly represent and warrant all Customer Data is true and correct, and You have obtained all necessary rights, licenses, and permissions and are able to grant the licenses provided in this Section, including, without limitation, with respect to the Manuals, and that Your provision of Customer Data is in accordance with all applicable laws.
2.3 As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party (“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Data is Your “Confidential Information” only to the extent it meets the definitions of “Confidential Information” in this Section. Traxxall’s “Confidential Information” includes the Application, all documentation supplied to You by Traxxall, the output of the Application (including the content of reports produced by the Application), and any information pertaining to Third-Party Services (defined in Section 6). However, “Confidential Information” does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information. For the avoidance of doubt, any Suggestions and Usage Data shall be deemed Traxxall’s Confidential Information.
2.4 Except as expressly permitted under this Agreement or otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), (ii) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Traxxall also is permitted to disclose Your Confidential Information to employees, contractors, and agents of its direct and indirect parents, subsidiaries, sister entities, and other affiliates pursuant to the Terms of this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
3.1 Monthly and Annual Plans. Products and/or services offered under these Terms may be provided at no charge, on a monthly subscription basis, or on an annual subscription basis.
3.2 Renewals. Except as otherwise specified in an applicable order agreed to in writing by Traxxall, unless either party cancels a subscription prior to expiration of the current subscription term as permitted under these Terms or another applicable agreement between the parties, Your subscription will automatically renew for another subscription term of a period equal to Your initial subscription term. You will provide any notice of nonrenewal through the means we designate, which may include account settings on the Site or one or more web-based software products (including, without limitation, the Service) (collectively, the “Cloud Products”) or contacting our support team. Cancelling Your subscription means that You will not be charged for the next billing cycle, but You will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the then-applicable agreements governing Your use of such Cloud Products and are contingent upon such applicable Cloud Product continuing to be offered and will be charged at the then-current rates.
3.3 One-Time Fees. We may charge You additional one-time fees for Your orders. These fees will be indicated at the time You place Your order. We will charge the payment method on file unless otherwise indicated to fulfill these.
3.4 You (or the Organization, as applicable) shall be solely responsible for, shall pay, and shall indemnify and hold Traxxall harmless from any and all applicable federal, state, or foreign sales, use, withholding, value added, excise, or property taxes, all duties and charges, and any interest or penalties with respect thereto imposed by any governmental authority based on this Services Agreement or on all or any part of the Services. Without limiting the foregoing, if any governmental authority shall impose any withholding tax on the amounts due hereunder, then the Organization shall be required to gross up the amounts due to Traxxall so that Traxxall receives the full invoiced amount.
4.1 You and the Organization (as applicable) each represent that You and it (i) have a valid and current license to use all maintenance publications, Manuals, and other third-party materials included in the Customer Data and grant Traxxall the licenses to such items as provided herein and (i) use and have used a maintenance program approved by all applicable authorities for the Aircraft, Engine, and/or APU, as applicable. You and the Organization will be deemed to reaffirm this representation each time You or it accesses the Traxxall System.
4.2 You and the Organization represent and certify that (i) the Aircraft, Engine, and/or APU, as applicable, is not specifically designed, modified, or equipped for military purposes or regulated by the export license requirements of the Export Administration Regulations, including, without limitation, gunnery, bombing, rocket or missile launching, electronic and other surveillance, reconnaissance, refueling, aerial mapping, military liaison, cargo carrying or dropping, personnel dropping, airborne warning and control, and military training; and (ii) You and the Organization comply and have complied with all export trade control regulations of the United States relating to the export of any software, software documentation, technical data, or related technologies regarding the Aircraft and/or Engine, as applicable.
4.3 You and the Organization represent that You and it understand that the Services are provided to You and the Organization (as applicable) solely as a tool and are not a substitute for Your and the Organization’s obligations to monitor and maintain the applicable Aircraft, Engine, or APU and records in accordance with all requirements of the manufacturer and regulatory authorities. You and the Organization (as applicable) are responsible for confirming the accuracy of information included with the Services on the applicable Aircraft, Engine, and/or APU and all data and information furnished by or through the Organization.
4.4 TRAXXALL PROVIDES THE SITE AND THE SERVICES AND YOU AND/OR THE ORGANIZATION (AS APPLICABLE) ACCEPT THE SERVICES “AS IS” AND TRAXXALL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. Without limiting the foregoing, Traxxall makes no warranties that the Site or the Services will comply with the requirements of any law, rule, or regulation.
4.6 This Agreement shall continue in full force and effect until terminated as provided in this Agreement.Traxxall may terminate this Agreement at any time if (i) You or the Organization (as applicable) fails to make any payment due hereunder when the same becomes due and payable, (ii) You or the Organization (as applicable) breaches any other Term of this Services Agreement or any other operating procedures of Traxxall provided to the Organization, and fails to cure the same within ten (10) days after receipt of notice from Traxxall, (iii) You or the Organization (as applicable) becomes insolvent or makes any assignment for benefit of its creditors, and (iv) any proceeding is filed by or against You or the Organization (as applicable) under any bankruptcy or similar laws for the relief of debtors.
4.7 This Agreement may not be transferred or assigned by You or the Organization, even if You or the Organization (as applicable) sells or transfers the Aircraft, Engine, and/or APU served by this Services Agreement, without the express prior written consent of Traxxall. Traxxall is expressly permitted to assign this Services Agreement. This Services Agreement shall inure to the benefit of and shall be binding upon each parties’ permitted successors and assigns.
5.1 Improving Cloud Products. We are always striving to improve the Cloud Products. In order to do so, we use analytics techniques to better understand how our Cloud Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
5.2 Subpoenas. Nothing in these Terms prevents us from disclosing Customer Data or any other data pertaining to You or the Organization to the extent required by law, subpoenas, or court orders, but we will use commercially reasonable efforts to notify You where permitted to do so.
5.3 Traxxall Using Your Data to Provide Cloud Products to You. Except as otherwise provided herein or in a separate Agreement, You retain all right, title, and interest in and to Customer Data or other data You provide us in the form submitted to the Cloud Products. Subject to these Terms and such other agreements as may apply, You grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Customer Data and all other data You provide us as necessary for Your use of the Cloud Products. To the extent that reformatting such data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access Your account(s) and Your Cloud Products with end user permission in order to respond to Your support requests.
5.4 Sharing Your Data. Except as provided herein or in another applicable agreement, we will not share Your data with third parties unless You have authorized us to do so. In some events, we may share Your data with the OEM if there is a request to do so that relates to safety, or we are requested by a regulatory body such as the FAA or EASA. If You are using one of our no-charge products, we may share Your information with the OEM and You hereby consent to such data sharing. You may opt out of such sharing, but You may not be eligible to use our no-charge products if You do so. In addition to all other rights provided to us, we may use Your data in an anonymous manner for analytical purposes, including comparisons to similar aircraft and to ascertain trends with similar aircraft. You hereby consent to us using such data in an anonymous manner.
6.1 Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 6.2 (Arbitration). All negotiations pursuant to this Section 6.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
6.2 Arbitration.
a. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with the Expedited Procedures of its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
b. Claims shall be heard by a single arbitrator. The place of arbitration shall be Chicago, Illinois, USA. If the dispute is less than $50,000 (U.S.) there shall be no discovery other than the exchange of documents. If the dispute is $50,000 or more (U.S.), discovery shall consist of no more than two (2) fact witness depositions per side of three (3) hours or less. Expert witness depositions shall not be permitted. Time is of the essence for any arbitration under these Terms and a final merits arbitration hearing shall take place within ninety (90) days of filing the arbitration demand, and an award shall be rendered by the arbitrator within ninety (90) days of the final merits arbitration hearing. The arbitrator shall agree to these limits prior to accepting appointment. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s’ and administrative fees of arbitration. The award of the arbitrator shall be accompanied by a reasoned opinion and written in English. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
6.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Sections 6.1 (Informal Resolution) and 6.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.
6.4 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
7.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES PROVIDED HEREUNDER IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ANY GOODS OR SERVICES PERFORMED OR PROVIDED HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE OUTPUT OF THE SERVICES) (“TRAXXALL SERVICES”) ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND (WHETHER EXPRESS OR IMPLIED). TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRAXXALL, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TRAXXALL SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRAXXALL PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE TRAXXALL SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRAXXALL OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR APPLICATION SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
7.2 WITHOUT LIMITING THE FOREGOING, NEITHER TRAXXALL NOR ANY PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, (A) AS TO THE OPERATION OR AVAILABILITY OF THE TRAXXALL SERVICES, OR THE INFORMATION, CONTENT, AND MATERIALS OR PRODUCTS INCLUDED THEREON OR THE OUTPUT RESULTING FROM THE USE THEREOF; (B) THAT YOUR ACCESS TO OR USE OF THE TRAXXALL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (C) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE TRAXXALL SERVICES; OR (D) THAT THE TRAXXALL SERVICES, THEIR SERVERS, THE CONTENT, OR MESSAGES SENT FROM OR ON BEHALF OF TRAXXALL ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS, OR OTHER HARMFUL COMPONENTS.
7.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
8.1 Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRAXXALL OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SITE OR THE TRAXXALL SERVICES, THIRD-PARTY SOFTWARE AND/OR THIRD-PARTY HARDWARE USED WITH THE SITE OR TRAXXALL SERVICES, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT), EVEN IF TRAXXALL OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TRAXXALL AND ITS SUPPLIERS WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. In no event shall Traxxall be liable for fines or penalties levied on You or the Organization by a regulator, lost profits or revenues, indirect, special, incidental, consequential, or similar damages arising out of or in connection with this Agreement or performance or nonperformance of all or any part of the Traxxall Services or any other work performed pursuant to this Agreement, or for any claim made against You or the Organization by any other person, even if Traxxall has been advised of the possibility of such damages or claim.
8.2 Liability Cap. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR, THE ENTIRE LIABILITY OF TRAXXALL AND ANY OF ITS SUPPLIERS OR LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE SERVICE TO WHICH SUCH CLAIM RELATES DURING THE PRECEDING TWELVE (12) MONTHS. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, THE MAXIMUM AGGREGATE LIABILITY OF TRAXXALL AND ANY OF ITS SUPPLIERS OR LICENSORS TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
8.3 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
8.4 SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.1 You (including, for the avoidance of doubt, the Organization) are solely responsible for and will defend, indemnify, and hold harmless Traxxall and its affiliates, directors, officers, employees, shareholders, representatives, agents, servants, predecessors, successors, and permitted assigns from and against any and all fines, penalties, claims, liabilities, suits, demands, losses, damages, expenses, or costs (including, without limitation, attorneys’ fees and costs and court costs) that may result from, arise out of, or relate to the Services or this Agreement. Without limiting the generality of the foregoing, You agree to indemnify and hold Traxxall and its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (if any) harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of Your (i) use of the Site, the Service, or any other services provided hereunder; (ii) Your provision of the Customer Data to Traxxall or Traxxall’s use thereof in accordance with this Agreement; (iii) violation of this Agreement or any law or regulation; or (iv) violation of any right of a third party.
9.2 If Your use of any Cloud Product in accordance with this Agreement is, or in Traxxall’s reasonable opinion is likely to become, the subject of any claim asserting infringement or misappropriation of any third-party intellectual property rights, then Traxxall may, in Traxxall’s sole discretion (i) procure a license to allow You to continue using the Cloud Product; (ii) replace or modify the Cloud Product in a functionally equivalent manner so that it no longer infringes; or (iii) terminate Your right with respect to the Cloud Product and return to You on a pro rata basis the portion of license fees prepaid by You with respect to the Application for any remaining license term.
9.3 You shall be solely responsible for, shall pay, and shall indemnify and hold Traxxall harmless from, any and all applicable federal, state, or foreign sales, use, withholding, value added, excise, or property taxes, all duties and charges, and any interest or penalties with respect thereto, imposed by any governmental authority based on this Agreement. Without limiting the foregoing, if any governmental authority shall impose any withholding tax on the amounts due hereunder, then You shall be required to gross up the amounts due to Traxxall so that Traxxall receives the full invoiced amount.
10.1 Government Entity. In any contract entered into with the United States government or unit or agency of the United States government (the “Government”) or in any contract entered into with any other party which is a subcontract at any tier of a contract entered into with the Government, the Organization agrees to notify Traxxall of the involvement of the Government prior to submission of the purchase order or purchase of the Services.
10.2 This Traxxall Agreement is between Traxxall and You and/or the Organization (as applicable). The aircraft manufacturer related to any Aircraft, and the engine component manufacturer related to any Engine, as applicable, is not party to this Agreement and makes no representation or warranty under this Agreement, whether express or implied.
10.3 No Grant of Intellectual Property. Nothing in this Agreement conveys, grants, or obligates Traxxall to convey or grant a license to any patent, trademark, or other Traxxall intellectual property right.
10.4 Support. During the subscription term, we will provide support for the Cloud Products in accordance with our Support Policy (to the extent applicable), and the applicable order.
10.5 Restrictions. Except as otherwise expressly permitted in these Terms, You will not (a) reproduce, modify, adapt, or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Cloud Products to a third party; (c) use Traxxall for the benefit of any third party; (d) incorporate any Cloud Product into a product or service You provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit Your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or nonpublic APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.
10.6 Publicity Rights. We may identify You and the Organization (as applicable) as a Traxxall customer in our promotional materials. We will promptly stop doing so upon Your request sent to [email protected].
10.7 Export Restrictions. The Cloud Products may be subject to export restrictions by the Government and may be subject to import restrictions by certain foreign governments, and You agree to comply with all applicable export and import laws and regulations in Your access to, use of, and download of the Cloud Products (or any part thereof). You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the Government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws, or regulations of any United States or foreign agency or authority. You represent and warrant that (i) You are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your data (including the Customer Data) is controlled under the U.S. International Traffic in Arms Regulations or similar laws in other jurisdictions. You also certify that You are not a Prohibited Person nor owned by, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the Government.
10.8 Changes to These Terms. Traxxall reserves the right, in its sole discretion, to modify or replace this Agreement at any time. You can see when this Agreement was last updated by reviewing the “Last Updated” legend at the top of this Agreement. Your continued use of the Application after any modification to this Agreement will constitute Your acceptance of the new terms. If You do not agree to the new terms, You are no longer authorized to use the Application and must immediately cease use of the Application.
(a) No-Charge Products. You must accept any modifications to these Terms to continue using the no-charge products provided hereunder. If You object to the modifications, Your exclusive remedy is to cease using the no-charge products.
(b) Paid Subscriptions. Except as prohibited by law or as would render these Terms unenforceable, modifications to these Terms shall apply as of their effective date for any paid subscriptions. Solely in the event that such would be prohibited by law or would render these Terms unenforceable, modifications to these Terms will take effect at the next renewal of Your subscription term and will automatically apply as of the renewal date unless You elect not to renew pursuant to Section 3.2 (Renewals). If the effective date of any modification is during Your then-current subscription term and You object to the modifications, then (as Your exclusive remedy) You may terminate Your affected orders by (i) immediately stopping use of the applicable Cloud Products and (ii) providing written notice to us, in which case we will refund You any fees You have prepaid for use of the affected Cloud Products for the terminated portion of the applicable subscription term. To exercise this right, You must provide us with notice of Your objection and termination within thirty (30) days of us providing notice of the modifications and must immediately stop using such Cloud Products. For the avoidance of doubt, any order is subject to the version of these Terms in effect at the time of the order.
(c) Our Policies. Without limiting any of our rights hereunder, You agree and acknowledge that we may modify our policies to take effect during Your then-current subscription term in order to respond to changes in our products, our business, or laws. We will make reasonable efforts to ensure that we do not make modification that, considered as a whole, would substantially diminish our obligations during Your then-current subscription term without having good cause for such modifications. Modifications to our policies will take effect automatically as of the effective date specified for the updated policies.
10.9 Changes to the Cloud Products. You acknowledge that the Cloud Products are online, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable documentation accordingly. Subject to our obligation to provide Cloud Products and additional services under existing orders, we can discontinue any Cloud Products, any additional services, or any portion or feature of any Cloud Products for any reason at any time without liability to You.
10.10 Notices. Any notice under these Terms must be given in writing. We may provide notice to You through Your notification email address, Your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to You will be deemed given upon the first business day after we send it. You will provide notice to us by post to Nuviation LLC d/b/a Traxxall, 167 N. Green Street, Suite 1300, Chicago, IL 60661, Attn: General Counsel. Your notices to us will be deemed given upon receipt.
10.11 Force Majeure. Except for Your obligation to pay fees to Traxxall, neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, without limitation, acts of God, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, Internet service provider, or communications failure). Each party will have the right to terminate this Agreement immediately by sending a written notice to the other party upon the occurrence of a force majeure event pursuant if such force majeure event has continued for a period of more than sixty (60) calendar days.
10.12 Entire Agreement. These Terms, the Privacy Policy, and the EULA and/or order forms (as applicable) are the entire agreement between You and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals, and representations between You and us with respect to the Cloud Products or any other subject matter covered by these Terms. You may be subject to additional terms and conditions that apply when You use or purchase other Traxxall Services, which Traxxall will provide to You at the time of such use or purchase. No provision of any purchase order or other business form employed by You will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
10.13 Conflicts. In event of any conflict between the main body of these Terms and either our Privacy Policy or EULA, the Privacy Policy or EULA, as applicable, will control with respect to its subject matter.
10.14 Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power, or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder at law or equity. Except as set forth in Section 10.8 (Changes to These Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
10.15 Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable, or illegal, the other provisions will continue in full force and effect. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Traxxall’s failure to act with respect to any failure by You or others to comply with this Agreement does not waive Traxxall’s right to act with respect to subsequent or similar failures. Any cause of action or claim You may have with respect to this Agreement, the Privacy Policy, or the Cloud Products (including the output obtained therefrom) must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred. Traxxall reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including, without limitation, the right to disable or prevent use of the Cloud Products.