IMPORTANT: PLEASE READ THIS CONTRACT CAREFULLY BEFORE USING THIS SERVICE. THESE TERMS OF SERVICE ARE AN AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR A SINGLE ENTITY) AND AVSOFT AUSTRALIA PTY LTD, AN AUSTRALIAN COMPANY HAVING ITS REGISTERED OFFICE AT 64 NORTH TERRACE, KENT TOWN, SOUTH AUSTRALIA 5067, AUSTRALIA (“AVSOFT”). IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF A COMPANY OR ORGANIZATION, YOU CERTIFY THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF SUCH ORGANIZATION, AND “YOU” AS USED IN THIS AGREEMENT WILL MEAN ALL AUTHORIZED USERS WITHIN YOUR ORGANIZATION. BY USING THE SERVICE, YOU ARE AGREEING TO THESE TERMS OF SERVICE (THIS “AGREEMENT”). IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THIS SERVICE, AND IF YOU HAVE PRE-PAID ANY AMOUNT TO AVSOFT FOR THIS SERVICE, CONTACT AVSOFT TO ARRANGE A REFUND.
- About this Agreement
Definitions
1.1. In this Agreement, unless the context requires otherwise:
1.1.1. Business Day means a day that is not a Saturday, Sunday or a public holiday in Melbourne, Australia;
1.1.2. Confidential Information has the meaning given to that term in clause 8;
1.1.3. Customer Data means all data generated or owned by the You or Your Representatives and processed or collected by the Services;
1.1.4. Emergency Maintenance means emergency maintenance performed by AvSoft to the Software that was not reasonably foreseeable such that it could reasonably have been undertaken as Scheduled Maintenance, and which is undertaken to reduce the possibility of impending faults to the Software or services provided to AvSoft’s customer base (for example, the application of an urgent software patch to address a critical security vulnerability);
1.1.5. Force Majeure Event means an event beyond a party’s reasonable control affecting the performance of its obligations and includes:
(a) natural events such as fire, flood, earthquake and epidemic;
(b) industrial action including strikes;
(c) war or national emergency;
(d) action or inaction by a government agency or regulator, except where caused due to a party’s failure to comply with relevant laws and regulations;
(e) terrorist acts including cyberterrorism and acts of vandalism; and/or
(f) failure of a telecommunications service, information technology service, or electricity supply where supplied by a reputable provider;
1.1.6. Intellectual Property Rights includes patents, copyright, trade marks and service marks (whether common law or registered), trade secrets, source and object code, registered designs or other design rights, rights in circuit layouts, domain names, any right to have confidential information kept confidential and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether registrable or not and wherever existing in the world;
1.1.7. Malicious Code includes code known as viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs that may perform unauthorised processes on a computer or network;
1.1.8. Personal Information means information that may be used to identify an individual;
1.1.9. Representative means a director, employee, agent, contractor or sub-contractor of a party, and for You, includes any person that You permit to access or use the Services;
1.1.10. Scheduled Maintenance means maintenance performed by AvSoft in relation to the Software, in respect of which AvSoft has provided at least 5 Business Days’ prior public notice;
1.1.11. Services means the services to be supplied by AvSoft to You as described in this Agreement, together with any applications and services available via the AvPlan web site at www.avplan-efb.com;
1.1.12. Software means any software facilitating the provision of the Services;
1.1.13. Term means the entire term of this Agreement;
1.1.14. Third Party IP means Intellectual Property Rights of a third party (including software) used by, or incorporated in, the Software or the Services.
Interpretation
1.2. In this Agreement, unless otherwise specified:
1.2.1. clause headings are for ease of reference only and will not be relevant to interpretation;
1.2.2. the expressions “such as”, “including”, “like”, “for example” and similar expressions are deemed in all cases to be followed by the words “without limitation”;
1.2.3. words importing the singular embrace the plural and vice versa;
1.2.4. a reference to a person includes bodies corporate and unincorporated associations and partnerships and vice versa;
1.2.5. a reference to a document includes that document as novated, altered, supplemented or replaced from time to time in accordance with this Agreement;
1.2.6. nothing in this Agreement is to be interpreted against a party solely on the ground that the party drafted this Agreement or any part of it;
1.2.7. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
1.2.8. monetary references are references to Australian (AUD) currency. - General Terms of Use
Nature of the Services
2.1. The Services are intended to assist air pilots with flight planning and air navigation activities. The Services are not (and are not intended to act as) a substitute for independent verification of applicable flight planning and safety regulations in Your location. You should always check local laws and regulations, and other official sources of information in Your location to confirm compliance. Laws and regulations change from time to time and while reasonable efforts are made, the Services may not reflect recent changes to laws, regulations and regulator directions and guidance.
2.2. To assist with air navigation, the Services may provide information about terrain, air traffic and weather in the surrounding vicinity. While care is taken regarding the validity of this information, AvSoft does not warrant or represent that this information is complete, accurate, or error free. For example, the air traffic information displayed as part of the Services is based on Automatic Dependent Surveillance – Broadcast (ADS-B) and/or embedded Services technology, and will not detect or display airborne objects including aircraft not fitted with an ADS-B transmitter, not using the Services or where the Services embedded technology is not enabled.
2.3. The Services are not a substitute for constant situational awareness and independent visual and instrument-based confirmation of potential hazards, as appropriate in the circumstances and in accordance with local flight regulations.
2.4. The information provided as part of the Services is intended to be used in relation to piloted (manned) aircraft, and is not to be used for assisting with navigation of remotely piloted aircraft.
Your Usage
2.5. You remain solely responsible for ensuring that any flight activities conducted by You are safe and lawful. The Services do not directly assist in piloting, so You remain solely responsible for, among other things, avoiding obstacles and other air traffic, and ensuring that Your aircraft is within effective control at all times.
2.6. Except as otherwise specifically described in the documentation for the Services, the Services do not take account of the capabilities or limitations of any particular model of aircraft. As such, you are responsible for ensuring that You operate aircraft in accordance with all terms, conditions and manufacturer instructions relating to such aircraft.
Updates to Software
2.7. AvSoft may (but is not obliged to) modify the Services and the Software from time to time without notice to You. AvSoft will endeavor to publish general notifications about any updates to the Services and the Software.
2.8. You must ensure the devices You use to access the Services are kept updated and in good working order (for example, by regularly applying operating system and security patches and updates as recommended by relevant manufacturers and software vendors), and You acknowledge that if Your devices are not kept updated in this way, the Services may be rendered partially or fully non-operational on the relevant device(s).
Compliance
2.9. In using the Services, You and where relevant, Your Representatives must:
2.9.1. comply with all applicable laws, regulations, and this Agreement;
2.9.2. co-operate with AvSoft in any investigation of use of the Services that may breach this Agreement;
2.9.3. ensure that the Customer Data that resides on, and is transmitted and received via the Services:
(a) does not infringe any Intellectual Property Rights of a third party;
(b) does not contravene applicable privacy laws and regulations;
(c) is not defamatory; and
(d) is not otherwise unlawful;
2.9.4. not permit the Services to be used for an unlawful or inappropriate purpose, such as unlawful or unsafe flying operations, piloting or navigation of a remotely piloted aircraft, harassment, invasion of privacy, unauthorised access to or interference with network services or equipment, storage or distribution of Malicious Code, unsolicited or deceptive messages, harassment, or compromising the security or integrity of passwords or network information;
2.9.5. not modify the Services or the Software, including the removal of any proprietary rights notices or markings, or otherwise make any derivative works based on the Services;
2.9.6. ensure that the Services are used only by You for Your personal or internal business uses only, and You must ensure that You do not allow third parties to use the Services as delivered to you (including via the sharing of devices or login credentials);
2.9.7. not access, download, copy, reproduce, store, edit, alter, modify, adapt, develop, exploit, sell, let for hire, offer by way of trade, expose for sale or hire, distribute, publish or communicate the Services or the Software, except as otherwise expressly permitted under this Agreement; and
2.9.8. not use the Services other than for their intended purpose or in any manner that could interfere with, disrupt, or negatively affect other users from enjoying the Services.
2.10. You must not attempt to reverse engineer, reverse-assemble or reverse-compile or otherwise endeavor to obtain the source code of the Software from any object code provided.
Security
2.11. You, and where relevant, Your Representatives must:
2.11.1. keep all account identification and log-in information, including passwords, secure and confidential to prevent unauthorised access to or use of the Services and promptly notify AvSoft of any unauthorised access or use; and
2.11.2. be responsible for the use of the Services by anyone who accesses the Services with Your account credentials.
No resale
2.12. Unless otherwise agreed in writing, You must use the Services only for Your personal use and must not re-sell or sub-license the Services or the Software. Unless otherwise specified in Your chosen subscription package, You may install the Software on up to 3 of Your personal devices at a time. - Mapping and other Data
3.1. The Services may contain aeronautical, mapping, location and other data created or collected by AvSoft and/or its related entities (AvSoft Data). While AvSoft takes reasonable care in the collection and creation of the AvSoft Data, AvSoft does not warrant that the AvSoft Data is complete, up-to-date or error-free.
3.2. Data (including non-aeronautical data) used by AvPlan is derived from government and other third-party sources. Except as expressly otherwise described in this Agreement or to the extent required by law, AvSoft exercises no control over the quality and content of aeronautical, mapping, location and other data sourced from third parties and provided to You as part of the Services, and AvSoft has no obligation to exercise any such control.
3.3. The Services may contain, incorporate, or be informed by, flight navigation data and/or other data supplied to AvSoft by Boeing Digital Solutions Inc. doing business as Jeppesen (Jeppesen Data). To the extent that the Services contain, incorporate, or are informed by Jeppesen Data, You agree to be bound by the additional terms and conditions set out in Annexure A of this Agreement, which terms and conditions will prevail over the body of this Agreement to the extent of any inconsistency.
3.4. The Services may contain, incorporate, or be informed by, material provided by Airways Corporation of New Zealand. To the extent that the Services contain, incorporate, or are informed by such material, You acknowledge that this material is not considered to be equivalent to information provided directly via www.ifis.airways.co.nz, and that Airways Corporation of New Zealand does not guarantee that the material is without flaw of any kind or is wholly appropriate for Your particular purposes, and therefore disclaims all liability for any error, loss or consequences which may arise from Your relying on any information contained in this material. - Technical Support and Additional Services
4.1. You acknowledge that AvSoft is not obliged under this Agreement to provide technical support, installation, commissioning, or acceptance testing services in relation to the Software or the Services.
4.2. At its discretion, AvSoft may make available additional technical support and other Services beyond the scope detailed in this Agreement for an additional charge. - Maintenance
5.1. From time to time, in order to enhance the security and reliability of the Software, AvSoft may conduct Scheduled Maintenance and Emergency Maintenance.
5.2. AvSoft will use reasonable efforts to minimise disruption to the Software when carrying out Scheduled Maintenance or Emergency Maintenance. - Fees, Payment and Tax
Billing
6.1. The Services may include products or features that require You to make payment for your usage. AvSoft may change the pricing of the Services at any time by giving at least 7 days’ prior notice to You.
6.2. By providing a credit card or other payment method, You represent and warrant that you are authorized to provide that payment method, and You authorise AvSoft (or our third party payment processor) to charge You for:
6.2.1. the amount of your order; and
6.2.2. any applicable tax, duty or impost imposed on the supply of the Services.
Taxes
6.3. Taxes are not included in the pricing of Services. Except for taxes based on AvSoft’s net income, You will pay all applicable sales, use, value-added, excise and any other taxes or customs duties. In the event that You furnish a valid tax exemption certificate, AvSoft will honor such exemption in the next billing cycle. All fees and other amounts payable by You under this Agreement are, unless otherwise specified, expressed as amounts net of any applicable deductions and withholding taxes that may be payable in connection with this Agreement and the Software and Services provided pursuant to it.
GST
6.4. In this clause 6:
6.4.1. GST has the meaning it does in section 195-1 of the GST Act;
6.4.2. GST Act means A New Tax System (Goods and Services Tax) Act 1999 of Australia, and any related or similar legislation;
6.4.3. Recipient has the meaning ascribed to that term in the GST Act;
6.4.4. Supplier has the meaning ascribed to that term in the GST Act; and
6.4.5. Supply has the meaning it does in section 9-10 of the GST Act and excludes any “GST-free supplies” and “input taxed supplies” as those terms are defined in section 195-1 of the GST Act.
6.5. In this Agreement, unless the contrary intention appears or the context requires otherwise:
6.5.1. the amounts payable by the Recipient to the Supplier for, or in connection with, any Supply under this agreement do not include any GST;
6.5.2. the Recipient must pay the Supplier an additional amount on account of GST equal to the amounts payable by the Recipient for the Supply multiplied by the prevailing GST rate;
6.5.3. the additional amount on account of GST is payable at the same time and in the same manner as the amounts payable by the Recipient are required to be paid to the Supplier; and
6.5.4. prior to or immediately upon receipt of payment of the amount and the additional amount on account of GST, the Supplier must provide the Recipient with a tax invoice which is in an approved form for GST purposes. - Intellectual Property
Licensing and Software
7.1. You hereby grant AvSoft a license to use the Customer Data strictly for the purpose of providing real-time flight traffic information, on an appropriately de-identified basis, to aviation regulators and the AvPlan customer base.
7.2. You acknowledge that AvSoft is the owner and/or authorized licensee of all Intellectual Property Rights in the Software.
7.3. You must ensure that You and Your Representatives do not infringe the Intellectual Property Rights of AvSoft. - Privacy
8.1. If, as a result of this Agreement, AvSoft is able to access any Personal Information collected, transmitted or stored by You or Your Representatives, then:
8.1.1. You must procure (by, for example, obtaining all necessary consents and approvals) that:
(a) the storage of such Personal Information in, or transmission of such Personal Information via, the Software; and
(b) AvSoft’s access to such Personal Information subject to the terms of this Agreement,
is not inconsistent with privacy laws and regulations in Your location; and
8.1.2. AvSoft must, in addition to complying with its own legal obligations with respect to privacy:
(a) not collect or use such Personal Information other than for the purpose of performing its obligations under this Agreement, maintaining the functionality of the Services for AvSoft’s customer base, responding to a law enforcement request, complying with a legal requirement to disclose information (for example in response to a valid warrant or court order), and/or to promote air safety and the aviation community generally; and
(b) immediately notify You in writing about any accidental or unauthorised access to such Personal Information. - Warranties
9.1. Each party warrants that:
9.1.1. if it is a company, it is a corporation incorporated and validly existing under the laws of its place of incorporation;
9.1.2. it has all requisite power and authority to perform this Agreement and can do so without the consent of any other person;
9.1.3. the execution and delivery of this Agreement by it and the performance of its obligations hereunder have been duly and validly authorised by all necessary action on the part of the party;
9.1.4. this Agreement creates valid and binding obligations of the party enforceable in accordance with their terms;
9.1.5. the execution and delivery of this Agreement by a party does not violate or conflict with any of the provisions of its constitution; and
9.1.6. the party is not insolvent.
9.2. You warrant that You have not relied on any representation made by or on behalf of AvSoft that is not expressly stated in this Agreement. - Indemnities
10.1. YOU INDEMNIFY AVSOFT AND ITS REPRESENTATIVES (AVSOFT INDEMNIFIED PARTIES) AGAINST ALL CLAIMS, ACTIONS, DEMANDS, PROCEEDINGS (WHETHER LEGAL OR ADMINISTRATIVE), LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING LEGAL EXPENSES) ARISING OUT OF OR RELATED TO:
10.1.1. LOSS, DAMAGE AND INJURY CAUSED TO THIRD PARTIES AND THEIR PROPERTY BY YOUR OPERATION OF AN AIRCRAFT IN CONNECTION WITH THE SERVICE;
10.1.2. LOSS, DAMAGE AND INJURY TO YOU, YOUR REPRESENTATIVES AND YOUR PROPERTY CAUSED BY YOUR OPERATION OF AN AIRCRAFT IN CONNECTION WITH THE SERVICE;
10.1.3. BREACH OF ANY APPLICABLE LAWS BY YOU AND YOUR REPRESENTATIVES; OR
10.1.4. USE OF THE SOFTWARE BY YOU AND YOUR REPRESENTATIVES IN A MANNER CONTRARY TO THIS AGREEMENT OR ANY USER DOCUMENTATION FOR THE SERVICES MADE AVAILABLE BY AVSOFT,
10.1.5. AN INFRINGEMENT BY YOU OR YOUR REPRESENTATIVES OF THE INTELLECTUAL PROPERTY RIGHTS OF AVSOFT,
EXCEPT TO THE EXTENT CAUSED OR CONTRIBUTED TO BY THE BREACH OF CONTRACT OR UNLAWFUL ACT OF THE AVSOFT INDEMNIFIED PARTIES. - Liability
Disclaimers
11.1. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE GENERATION OF A FLIGHT PLAN FOR ANY FLIGHT AND/OR THE USE OF THE SERVICES AS A NAVIGATIONAL AID, IS AT YOUR SOLE RISK. YOU ASSUME THE ENTIRE RISK RELATED TO THE OPERATION OF YOUR AIRCRAFT AND AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.
11.2. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT:
11.2.1. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. AVSOFT DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES THAT THE SOFTWARE AND SERVICES WILL BE TIMELY, UNINTERRUPTED AND ERROR-FREE; AND
11.2.2. YOU ACCEPT ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO MEET YOUR REQUIREMENTS.
Exclusions
11.3. To the extent permitted by law, neither party is liable to the other party in contract, tort, strict liability or other legal theory for any indirect, consequential, special or exemplary loss or damage including loss of revenue, profits, technology rights, data, interruption or loss of use of services, even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the parties.
Maximum Liability
11.4. TO THE EXTENT PERMITTED BY LAW, AVSOFT’S LIABILITY TO YOU IN RELATION TO THE SERVICES IS LIMITED, AT AVSOFT’S OPTION, TO:
11.4.1. IN THE CASE OF SERVICES, RE-SUPPLYING THE SERVICES OR PAYING THE COST OF HAVING THE SERVICES RESUPPLIED; AND
11.4.2. IN THE CASE OF GOODS (INCLUDING THE SOFTWARE), REPAIRING OR REPLACING THE GOODS OR PAYING THE COST OF HAVING THE GOODS REPAIRED OR REPLACED.
11.5. AvSoft’s supply of the Services in Australia may be subject to certain statutory guarantees, including under the Australian Consumer Law, which cannot be excluded by contract. Nothing in this Agreement excludes, restricts or modifies the application of such statutory guarantees or any associated rights or entitlements to remedies. - Termination
Termination for cause
12.1. Either party may immediately terminate this Agreement or any Service by giving notice to the other party where:
12.1.1. the other party is in breach of a material provision of this Agreement which is not capable of remedy;
12.1.2. the other party is in breach of a material provision of this Agreement and fails to remedy such breach within 30 days of the first party giving notice requiring the other party to do so; or
12.1.3. the other party becomes the subject of either a voluntary (other than for a solvent reconstruction) or involuntary petition for winding-up, receivership, liquidation or insolvency and in the case of an involuntary petition, the proceeding is not dismissed within 60 days.
12.2. In addition to the rights of termination specified in clause 12.1, AvSoft may terminate this Agreement if You fail to pay fees overdue to AvSoft within 7 days of AvSoft giving You notice requiring You to do so.
Survival
12.3. This clause, and any other clause that, by its nature, is intended to survive termination of this Agreement, survives termination of this Agreement and continues in full force and effect following termination.
Effect of Termination
12.4. Upon expiry or termination of this Agreement for any reason:
12.4.1. You and Your Representatives must immediately cease using the Services, and return or destroy all copies of the Software and related materials within a further 5 Business Days;
12.4.2. all Services will be deemed to have been terminated on the effective date of termination of the Agreement, and AvSoft may cease to provide all Services without notice on or after such date; and
12.4.3. all outstanding invoices will become immediately due, and You must pay all fees due to AvSoft up to the date of termination.
12.5. If You exercise a right of termination under clause 12.1, then You will be entitled to a refund, on a pro-rata basis, for any fees that have been pre-paid for remainder of the then-current Term following the date of termination.
12.6. Either party’s termination of this Agreement or any Service will be without prejudice to any other remedies that it may have at law or otherwise. - Miscellaneous Provisions
Variations to this Agreement
13.1. You agree that AvSoft may update this Agreement at any time at its reasonable discretion, provided that AvSoft will inform you of such update either directly, through the Services, and/or by publishing the updated Agreement on its web site. If you continue to use the Services after the Agreement has been updated, You will be deemed to have agreed to the terms and conditions of the updated Agreement.
Notices
13.2. Any notice, request, demand or other communication required or permitted by this Agreement must be in writing, and must be directed to the recipient’s address or email address.
13.3. Both parties must promptly notify the other of any changes to their email address and primary contact person.
Severability
13.4. If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question will not be affected.
Assignment
13.5. Neither party may assign any of its rights under this Agreement without the prior written consent of the other party, other than in the case of a corporate reorganisation, consolidation, merger, or sale of substantially all of a party’s assets. Where consent is required, it will not be unreasonably withheld.
Relationship of parties
13.6. AvSoft and You are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between them.
No merger
13.7. The warranties, other representations and promises by the parties are continuing and do not merge, and are not extinguished, on completion of this Agreement.
Waiver
13.8. A waiver by a party of a provision of or a right under this Agreement is binding on the party granting the waiver only if given in writing and signed by an authorised officer of the party.
13.9. The failure of a party at any time to enforce any of the provisions of this Agreement or exercise any right or election will not constitute a waiver of those provisions, rights or elections or affect the validity of this Agreement.
Force majeure
13.10. A party’s obligations are suspended during a Force Majeure Event.
13.11. Either party may terminate this Agreement or a Service immediately by notice where a Force Majeure Event continues for 60 days.
Governing Law
13.12. The laws in force in the State of Victoria, Australia, govern this Agreement and the parties submit to the exclusive jurisdiction of the courts of Victoria, Australia, and the courts that hear appeals from those courts.
Dispute Resolution
13.13. If any dispute arises between AvSoft and You, the parties will initially attempt to resolve these through direct dialogue and discussion. Where the dispute cannot be resolved by this mechanism, then the parties will attempt to resolve their differences through mediation.
13.14. Nothing in clause 13.13 will prejudice either party from terminating the Agreement, exercising any other right under it or instituting proceedings to seek relief.
ANNEXURE A
JEPPESEN’S ADDITIONAL TERMS FOR JEPPESEN DATA
YOU (herein also “End-User”) HAVE LICENSED JEPPESEN’S NAVDATA, (the “NavData”) FROM AVSOFT AUSTRALIA PTY LTD. (“OEM”) UNDER AN AGREEMENT (herein “Agreement”). PLEASE READ THE FOLLOWING ADDITIONAL TERMS (“Additional Terms”) PROVIDED TO YOU BY OEM CAREFULLY BEFORE USING THE NAVDATA. THESE ADDITIONAL TERMS ARE LEGALLY BINDING UPON YOU IN ADDITION AND AS AN INTEGRAL PART OF THE AGREEMENT. BY YOUR BELOW SIGNATURE, END-USER IS AGREEING TO EACH TERM OF THESE ADDITIONAL TERMS AS PART OF THE AGREEMENT INCLUDING THE RESTRICTIONS ON USE, DISCLAIMERS AND LIMITATION OF LIABILITIES. ANY USE OF THE NAVDATA WILL ALSO CONSTITUTE YOUR AGREEMENT WITH THESE ADDITIONAL TERMS AS PART OF THE AGREEMENT. In case of a conflict between the Agreement and anything stated in these Additional Terms, these Additional Terms shall govern and prevail.
- ACKNOWLEDGMENTS.
- End-User confirms to have entered in a valid Agreement with OEM and End-User acknowledges that the Agreement is concluded solely between OEM and End-User, and not with Jeppesen. These Additional Terms survive the expiry and termination of the Agreement.
- End-User irrevocably acknowledges and agrees:
(i) Jeppesen GmbH and Boeing Digital Solutions, Inc. (f/k/a Jeppesen Sanderson Inc.) (“Jeppesen”), as licensor or owner of the NavData, are each a third party beneficiary of these Additional Terms, and shall therefore have the right (and will be deemed to have accepted the right) to enforce the Additional Terms against End-User.
(ii) End-User acknowledges and agrees that OEM and not Jeppesen shall be responsible for addressing any claims of the End-User relating to the NavData and such claims shall be addressed by OEM as per the terms of the Agreement. End-User acknowledges and agrees that each NavData database is effective for the specific 28-day AIRAC cycle period for which it was produced. Jeppesen has no liability or responsibility of any kind for the use of NavData by End-User after the expiration of its AIRAC effectivity cycle. End-User agrees that any use of the NavData after the expiration date of the AIRAC effectivity cycle will be at the End-User’s sole risk and responsibility. - Information contained in NavData is independently available from publications of the appropriate governing authority. NavData are designed for use by experienced and knowledgeable (i) pilots who must be thoroughly familiar with and competent in, among other things, the navigation of aircraft and the air navigation equipment being used, and (ii) flight dispatchers, flight planners and others who must be thoroughly familiar with and competent in, among other things, the planning of flights and the computerized flight planning programs being used. The NavData does NOT contain all information necessary to independently conduct instrument or visual flight procedures or plan all aspects of a flight. The NavData must be used in conjunction with the appropriate aeronautical charts and other information available to pilots, flight dispatchers, flight planners and others through a variety of sources. Pilots must conduct flight procedures in accordance with the information depicted on aeronautical charts.
- Some information displayed by the system on which NavData is installed (“System”) may be solely generated by the System, and may not be information derived from Jeppesen NavData. The NavData provided hereunder may not contain all of the navigation data existing worldwide, and End-User should make no assumption otherwise. The System may not utilize all NavData available from Jeppesen, and the data contained in End-User’s NavData may be only a subset of the data available from Jeppesen.
- End-User is the “end user” of the data that is the subject of this Agreement, and Requirements and Technical Concepts for Aviation, Inc. (RTCA) document DO-200A and European Organization for Civil Aviation Equipment (EUROCAE) document ED-76, “Standards for Processing Aeronautical Data,” Section 1.4, Application of Standard, state that, “The ultimate responsibility of ensuring that data [i.e. NavData] meets the quality for its intended application rests with the end user of that data.
- End-User is solely responsible for (i) thoroughly and appropriately training its users on the use of the System and the contents of any reformatted data derived from NavData, including, among other things, its limitations and differences from Jeppesen NavData, and (ii) training its users to confirm that the database information the user selects in the System is the database information the user intends to select.
- End-User is solely responsible for the design, adequacy, accuracy, reliability, safety, conformance with government standards or regulations, and content of any and all data directly or indirectly originating from End-User (“End-User Data”), including fitness for its intended purpose. End-User will, at its expense, indemnify, defend, and hold harmless Jeppesen and its licensors, contractors, subcontractors and agents from any and all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees) in any way relating to End-User Data.
- OWNERSHIP/COPYRIGHT. Jeppesen is the owner or authorized licensor of the NavData, which is protected by copyright. Material from the Australian Aeronautical Information Publication has been used by agreement with Airservices Australia. The NavData provided hereunder may contain third party data provided by the avionics manufacturer in whose system the NavData will be used and Jeppesen disclaims any and all responsibility and liability whatsoever for such third party data.
- RESTRICTIONS ON USE. The NavData may not be used for any other purpose, nor be sold or given by End-User to any third party for any use. Use of the NavData by End-User to generate aviation charts or maps, whether for reference only or actual air navigation, is expressly prohibited. The NavData cannot be used for performance based navigation procedure design (RNAV-RNP). End-User will NOT: (a) copy, reproduce, reverse engineer, decompile, disassemble or publish the NavData; (b) electronically transfer the NavData to multiple computers over a network system; (c) distribute copies of the NavData or accompanying materials to others; (d) modify, adapt, or translate the NavData or create derivative works based on the NavData; or (e) assign, rent, lend, sell, transfer or sublease the NavData.
- WARNINGS:
DATA RELATED ALERTS AND NOTICES (“ALERTS”) ARE PUBLISHED ON JEPPESEN’S NOTICES AND ALERTS WEBPAGE ACCESSIBLE VIA WWW.JEPPESEN.COM. CHANGES MAY OCCUR AT ANY TIME AND END-USER AGREES TO REGULARLY MONITOR JEPPESEN’S NOTICES AND ALERTS WEBPAGE AS APPROPRIATE FOR ITS TYPE OF OPERATION. - NO WARRANTY. END-USER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE NAVDATA ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND WHATSOEVER.
- DISCLAIMER AND RELEASE. THE CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS, LIABILITIES AND WARRANTIES (IF ANY) OF JEPPESEN AND REMEDIES OF END-USER SET FORTH HEREIN ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND END-USER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS AND LIABILITIES OF JEPPESEN, AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF END-USER AGAINST JEPPESEN, EXPRESS OR IMPLIED, ARISING BY LAW, EQUITY OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, ANY END-USER-SUPPLIED INFORMATION, THE DATA PROVIDED HEREUNDER AND ANY NONCONFORMANCE OR DEFECT IN THE DESIGN, ADEQUACY, ACCURACY, RELIABILITY, SAFETY, OR CONFORMANCE WITH GOVERNMENT STANDARDS OR REGULATIONS OF SUCH DATA, INCLUDING BUT NOT LIMITED TO: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING IN STRICT LIABILITY OR IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF JEPPESEN; AND (iv) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF END-USER, INCLUDING WITHOUT LIMITATION ANY AIRCRAFT.
- EXCLUSION OF SPECIFIED LOSSES AND DAMAGES. JEPPESEN WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER, (i) WHETHER ARISING IN LAW, EQUITY, CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), STRICT LIABILITY, OR OTHERWISE AND (ii) WHETHER SUCH LOSSES OR DAMAGES ARE DIRECT, INDIRECT OR OTHERWISE, FOR: (i) LOSS OF USE, REVENUE, PROFIT, ANTICIPATED SAVINGS, BUSINESS VALUE, OPPORTUNITY OR GOODWILL; (ii) LOSS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION; (iii) LOSS OR DAMAGES RESULTING FROM DELAY IN PERFORMANCE AND COST OF SUBSTITUTE PROCUREMENT; (iv) LOSS OR DAMAGES RESULTING FROM REPRODUCTION OR RECOVERY OF DATA OR INFORMATION WHICH IS LOST, CORRUPTED OR DAMAGED IN ANY OTHER MANNER, WHETHER IN WHOLE OR IN PART; (v) ANY INDIRECT, INCIDENTIAL, SPECIAL, EXEMPLARY OR PURE ECONOMIC LOSSES OR DAMAGES IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT.
- LIMITATION OF LIABILITY. JEPPESEN’S ENTIRE LIABILITY IN RELATION TO THE AGREEMENT NOT OTHERWISE LIMITED OR EXCLUDED PURSUANT TO ANY RELEVANT PROVISIONS OF THE AGREEMENT, IS LIMITED TO AN AGGREGATE CAP OF ONE THOUSAND (1000) U.S. Dollars (USD), WHICH END-USER RECOGNIZES AS A REASONABLE LIMITATION OF LIABILITY BASED UPON THE NATURE OF THE DATA PROVIDED UNDER THE AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FORGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- INDEMNIFICATION. End-User agrees to indemnify and hold harmless Jeppesen and its subcontractors from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees), incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including employees of End-User but not employees of Jeppesen, or for loss of or damage to any property, including any aircraft, arising out of or in any way relating to End-User’s utilization of the NavData or any other things provided hereunder, whether or not arising in strict liability or tort or occasioned by the negligence of Jeppesen. End-User’s obligations under this indemnity will survive the expiration, termination, completion or cancellation of the Agreement.
- For purposes of the “Disclaimer and Release”, “Exclusion of Specified Losses and Damages”, “Limitation of Liability”, and “Indemnification” Section, the term “Jeppesen” includes its parent companies (at any tier), its divisions, subsidiaries and affiliates, the assignees of each, and their respective directors, officers, employees and agents.
- If a court of competent jurisdiction determines that relevant laws in force may imply warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on Jeppesen’s liability set forth in this Section shall apply to the fullest extent permitted by law. If Jeppesen cannot exclude or limit a warranty or liability implied by law, these Additional Terms shall be read and construed subject to such provisions of law.
- EXPORT COMPLIANCE.
a. End-User is responsible for its compliance with any applicable export control restrictions, laws and regulations as may be modified from time to time, imposed by the governments of the U.S. and, if applicable, other countries. End-User shall not attempt to, or knowingly export or re-export the NavData covered under the Agreement to any country, or national thereof, prohibited from obtaining NavData, either directly or indirectly through affiliates, or subsidiaries of End-User. Each party shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to conduct its respective activities hereunder. Nothing in this clause releases End-User from any obligation stated elsewhere in the Agreement not to disclose the NavData.
b. END-USER ACKNOWLEGES AND AGREES NOT TO EXPORT OR RE-EXPORT ANY NAVDATA, OR ANYTHING ELSE PROVIDED IN RELATION TO THIS AGREEMENT, IN VIOLATION OF ANY APPLICABLE LAWS AND REGULATIONS. END-USER IS AWARE OF AND AGREES TO COMPLY WITH THE EUROPEAN UNION SANCTIONS AGAINST RUSSIA, INCLUDING WITHOUT LIMIATIONS THE COUNCIL DECISION (CFSP) 2022/327 OF 25 FEBRUARY 2022 AND COUNCIL REGULATION (EU) 2022/328 OF 25 FEBRUARY 2022. SHOULD END-USER BE IN BREACH OF THIS CLAUSE, JEPPESEN MAY TERMINATE ACCESS TO THE NAVDATA AND ANYTHING ELSE ORIGINATING FROM JEPPESEN IN RELATION TO THESE ADDITIONAL TERMS IMMEDIATE EFFECT WITHOUT NOTICE. - GOVERNING LAW. ANY DISPUTE, CONTROVERSY OR CLAIM AGAINST JEPPESEN ARISING OUT OF OR RELATING TO THE NAVDATA, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, AND THESE ADDITIONAL TERMS ARE GOVERNED BY THE LAWS OF THE STATE OF COLORADO, UNITED STATES OF AMERICA, WITHOUT RECOURSE TO CHOICE OF LAW STATUTES OR PRINCIPLES THAT WOULD OTHERWISE RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
- Dispute Resolution. Any dispute, claim or controversy of whatsoever kind or nature arising out of or in any way relating to the NavData and these Additional Terms (if not resolved amicably) will be prosecuted and resolved exclusively in the state or federal courts located in Denver, Colorado and the parties hereby irrevocably and unconditionally consent to the exclusive in personam jurisdiction of such courts for the purpose of prosecuting and resolving such dispute, claim or controversy. The foregoing will not apply in the event a third party claims any injury, damage or loss against Jeppesen in a court or other proceeding wherein End-User is joined, interpleaded or impleaded by Jeppesen, or End-User is otherwise a necessary or indispensable party to the action or proceeding. Customer waives sovereign immunity and related defenses with respect to this Agreement.
- Jury Trial Waiver. Jeppesen and End-User hereby knowingly, voluntarily, intentionally, and irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or relating to these Additional Terms.
- SEVERABILITY. If any term or provision of these Additional Terms is held invalid or unenforceable, such term or provision will be replaced by a valid and enforceable provision containing as close to the original intent of the parties as possible in light of the intent of this Additional Terms. The remainder of this Additional Terms will not be affected thereby and each remaining term and provision of this Additional Terms will be valid and enforceable to the fullest extent permitted by law.
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AvPlan Terms of Service
AvSoft Australia Pty Ltd
Ph. +61 3 8370 3024
www.avplan-efb.com