This Underdog Software Inc. (“Air Trail”) Service Agreement (“Agreement”) authorizes Customers and Crews to access and use Services solely in accordance with the terms and conditions of this Agreement.
1. EFFECTIVE DATE:
This Agreement shall not be effective until Air Trail receives all required application information and Air Trail accepts Customer’s application. Air Trail will notify Customer via email once their application is complete. Customer’s rights under this Agreement and rights to use the Services are subject to Customer’s compliance with all applicable laws, regulations and guidance, and the terms and conditions of this Agreement.
DEFINITIONS. “Customer” means either an approved air operator that has Crew who have downloaded Software where such carrier has subscribed to Services, or individual Crew Members who have downloaded Software and subscribed to Services. “Crew” means either an individual aircraft pilot that is also a Customer, or those aircraft pilots authorized by a Customer to fly under such Customer’s Air Operator Certificate number. “License Agreement” means the license agreement entered into by each Customer and Crew Member with Air Trail when downloading the Software. “Services” means the provision of access to and the right to use the functionality and services included as part of Air Trail’s programs, as described at www.airtrail.ca, and support for use of the Software and Services as set out in Air Trail’s Support Policy found at www.airtrail.ca, which is hereby incorporated into this Agreement by reference. “Software” means Air Trail software downloaded by the Customer or Crew Member for use pursuant to the License Agreement.
2. CUSTOMER OBLIGATIONS:
Customer agrees, and where Customer is not an individual crew member, shall cause each of its crew members to agree :
a. To provide a waiver, waive any rights, and authorize Air Trail to acquire and periodically reconfirm information from government agencies, leasing companies, third party credential processors, and/or other third party service providers concerning registration, permits, licenses, inspections, taxes and other credentials including, but not limited to all carrier, fleet, crew member, and Registered aircraft information required to support the Services (“Waived Information”). Customer authorizes, waives rights, and grants a waiver, and shall ensure each of its crew members authorizes, waives and grants a waiver for Air Trail to collect, disclose and use such Waived Information, and Customer on behalf of itself and its crew members authorizes and provides a waiver to government agencies, tolling agencies/authorities, leasing companies, third party credential processors, and/or other third party service providers to release without restriction or liability all such Waived Information to Air Trail. Customer agrees and shall cause its crew members to agree to provide additional authorizations or waivers required by or from government agencies, leasing companies, third party credential processors, and/or other third party service providers to enable access to aircraft registration information, and Customer expressly agrees to the “Authorization and Waiver” attached as Exhibit 1 to this Agreement and authorizes Air Trail to generate an Authorization and Waiver document in Customer’s name substantially in the form of Exhibit 1.
b. To authorize Air Trail to submit Customer’s operator, fleet, aircraft, and crew member information to participating government agencies for use in providing Services.
c. To obey all applicable federal, state and provincial laws, regulations and guidance, including those governing eligibility for flight planning, flight logging, and crew duty tracking.
d. To pay such service charges as are established by Air Trail for each aircraft registered, and all applicable taxes. The Customer shall be responsible to pay all taxes and government charges attributable to the purchase, licensing or use of the Services or Software.
e. To pay all invoices including Air Trail fees within thirty (30) days of receipt, or as otherwise provided in this Agreement. Any balance outstanding over thirty (30) days is delinquent and can result in suspension by Air Trail of the Customer’s use of the Software and Services and is subject to interest equal to prime rate + 2% per month (based on the prime rate published by the Wall Street Journal on the date such amount became outstanding) or the highest rate permitted by law, whichever is less, and any discounts offered will be void. After two delinquencies in any calendar year, Air Trail may require Customer to establish electronic means of payment.
f. To review invoices promptly and notify Air Trail if there are any questions regarding Customer’s charges. If Air Trail is not notified in writing within thirty (30) days of invoice date, all charges will be deemed to have been accepted by Customer.
g. To pay a $50.00US charge for each invalid check or payment Customer’s bank returns.
h. To report in a timely manner changes relevant to Customer’s account, including company name or ownership, postal address, email address, telephone number, aircrafts enrolled in Air Trail, aircraft tail numbers, any and all change of credentials, applicable credit card numbers and expiration date, and other account information.
i. Not to access or attempt to access any other Air Trail systems, programs or data that are not made available for public use.
j. Not to copy, modify, translate, adapt, create derivative works based upon, reproduce, republish, upload, post, transmit, resell or distribute in any way the material found at www.airtrail.ca, except as authorized in writing by Air Trail.
k. Not to (i) rent, sell, lease, lend, redistribute or sublicense the Software or permit any third party to benefit from the use or functionality of the Software or, Services via a rental, lease, timesharing, service bureau, or other arrangement; (ii) allow anyone other than authorized Customers or crew members to access Software or Services or (iii) use the Software or Services in any way that does not comply with all applicable laws, regulations and guidance.
l. Not to use the Software or Services on any device that Customer does not own or control.
m. Not to assign, sublicense or otherwise transfer any of the rights granted to Customer under this Agreement.
n. Not to copy (except as expressly permitted by this Agreement or the License Agreement), modify, translate, adapt, or create derivative works of the Software or Services.
o. Not to circumvent any technical or security limitations in the Software or Services, or use any tool to enable features or functionalities that are otherwise disabled in the Software or Services, or decode, decompile, disassemble, derive the source code or otherwise reverse engineer the Software except as otherwise permitted by applicable law or by licenses with respect to open source software included with the Software.
p. Not to perform or attempt to perform any actions that would interfere with the proper working of the Software or Services, prevent access to or the use of the Software or Services by Air Trail’s other licensees or customers, or impose an unreasonable or disproportionately large load on Air Trail’s infrastructure.
q. Not to otherwise use the Software or Services except as expressly allowed under this Agreement.
3. Underdog Software OBLIGATIONS:
Underdog Software agrees:
a. To authorize Customer aircrafts to receive and use the Services subject to continued compliance with eligibility requirements required by Air Trail or applicable governmental authorities.
b. To assess fees for each Customer account based on the number of aircrafts registered with Air Trail and the service tier utilized by each aircraft found at www.airtrail.ca (“Pricing Schedule”) which is incorporated by reference in this Agreement.
c. That fees and other charges for Services, are billed one month in arrears in accordance with the Pricing Schedule, except for prepay Customers.
d. To provide Customer service and account information in at least one of two ways:
1) by telephone at 1-587-987-9827
2) through online access at www.airtrail.ca
Customer may terminate this Agreement and discontinue Customer’s access to Services by informing Air Trail in writing via email or via client web portal. Air Trail may immediately terminate this Agreement or suspend or cancel Customer’s participation in Air Trail if a Customer fails to continue to meet program eligibility requirements, or is in breach of a material term of this Agreement. Air Trail may terminate this Agreement and Customer’s access to and use of the Services at any time for any reason by providing thirty (30) days notice to Customer. Air Trail will not refund amounts less than $25.00US unless requested by Customer, nor if the Customer account has been placed with collections.
6. RELEASE & INDEMNITY:
Customer hereby releases Air Trail from all loss, damage or injury whatsoever, known or unknown, arising out of or in any manner connected with the use or receipt of Software or Services by Customer or any of its crew members. Customer shall defend, indemnify and hold Air Trail and its affiliates harmless from and against any and all claims, losses, liability costs and expenses (including attorneys’ fees) arising from: (i) any violation of this Agreement, the License Agreement, or of any state, provincial or federal laws, regulations or guidance, by Customer, or by its crew members; (ii) any use of the Software or Services by Customer or its crew members, including any death, injury or property damage resulting from any such use; (iii) any tickets, infractions, penalties or accidents arising from any use of aircrafts by Customer or its affiliates, or their crew members; (iv) any infringement or misappropriation of a third party’s copyrights, patents, trade secrets or other intellectual property rights, or any violation of any proprietary right or invasion of any privacy rights or laws, regulations or guidance; (v) any Data (as defined below) or any failure by Customer to obtain consents from crew members, or to cause crew members to consent for the collection, use and disclosure of Data, or other information or data in accordance with this Agreement; (vi) any claims from the owner of and aircraft(s) registered with Air Trail related to the use of such aircrafts by Customers, crew members or others; or (vii) any failure by Customer to pay or remit applicable taxes or charges in accordance with this Agreement.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND SERVICES IS AT CUSTOMER’S SOLE RISK. THE Software AND Services ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Air Trail, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE Software OR Services, INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. Air Trail DOES NOT WARRANT OR REPRESENT THAT THE Software AND Services ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER SOFTWARE OR SERVICE LIMITATIONS, THAT DEFECTS IN THE Software OR Services WILL BE CORRECTED, OR THAT THE Software AND Services WILL MEET CUSTOMER’S REQUIREMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR REPRESENTATIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. IN THAT EVENT, ANY IMPLIED WARRANTIES OR REPRESENTATIONS ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE Software, OR Services, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
8. LIMITATION OF LIABILITY:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF Air Trail AND ITS SUPPLIERS FOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE Software AND Services GIVING RISE TO THE LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Air Trail AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING LOSS OF PROFITS OR OTHER ECONOMIC LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF Air Trail OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Air Trail AND CUSTOMER. Air Trail WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE OR THE SERVICES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER AND ITS crew memberS SHALL BE RESPONSIBLE FOR ALL LIABILITIES ARISING FROM ITS USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY TICKETS, INFRACTIONS, PENALTIES OR ACCIDENTS ARISING FROM ANY USE OF aircraftS BY CUSTOMER OR ITS crew memberS.
9. CHANGES TO AGREEMENT:
Air Trail shall have the right, in its sole discretion and with reasonable notice posted on www.airtrail.ca or sent to Customer’s email address provided in registering for the Service, to revise, update, or otherwise modify the Services or Software and establish or change limits concerning use of the Software or Services, temporarily or permanently. Air Trail reserves the right to make any such changes effective immediately to maintain the security of the system or Customer’s information or to comply with any laws, regulations, guidance or its policies and agreements. Customer may reject changes by discontinuing use of the Software and Services to which such changes relate, or if an update to the Software is provided, by rejecting the downloading of such update. Air Trail reserves the right to terminate this Agreement by providing thirty (30) days written notice at any time if Customer rejects such update. Customer’s continued use of the Software and Services, or downloading of an update will constitute Customer’s agreement to such changes. Air Trail may, from time to time, perform maintenance upon the Software or Services resulting in interrupted service, delays or errors in the Software or Services. Air Trail will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided. Air Trail may update Customer’s status under different tiers of Service at any time by providing notice to Customer.
10. DATA PRIVACY:
b. Customer agrees to allow Air Trail to provide information required as part of the Services to any and all government agencies responsible for commercial aircraft law enforcement.
c. Registration Data: Customer must register to use the Software and Services other than in Demo Mode. Customer must provide true, accurate, current and complete information as prompted by the interview sign-up process (the “Registration Data”) and maintain and immediately update the Registration Data to keep it accurate, current and complete. If Customer provides any Registration Data that is inaccurate, not current or incomplete, or Air Trail has reasonable grounds to suspect is inaccurate, not current or incomplete, Air Trail may, in its sole discretion, suspend or terminate the Customer’s account and refuse any and all current or future access to and use of the Software or Services (or any portion thereof).
d. Customer Access Information: “Customer Access Information” means Customer’s access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by Customer to access the Software, Services and Customer’s financial institution accounts. Customer is solely responsible for: (i) maintaining the confidentiality and security of Customer Access Information. Customer will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Customer Access Information. Air Trail assumes that any Communications it receives through use of the Customer Access Information were sent or authorized by Customer. Customer agrees to immediately notify Air Trail in writing via email if Customer becomes aware of any loss, theft or unauthorized use of any Customer Access Information. Air Trail reserves the right to deny Customer access to the Software or Services (or any part thereof) if Air Trail reasonably believes that any loss, theft or unauthorized use of Customer Access Information has occurred. Customer must inform Air Trail of, and hereby grants to Air Trail permission to use, Customer Access Information to enable Air Trail to provide the Services to Customer, including updating and maintaining Event Data, addressing errors or service interruptions, and to enhance the types of data and services Air Trail may provide to Customer in the future.
e. Event Data: “Event Data” means information, files or data that is collected and stored in using the Software or Services, including user name, password information, aircraft information, location , device platform, Software version, and network provider. Customer shall prevent unauthorized access to or use of the Event Data. Customer authorizes Air Trail to collect and use the Event Data, and to combine Customer’s Event Data with that of others in a way that does not identify Customer or any individual personally, to improve services and to compare spending practices with others with similar spending habits. “Data” means Registration Data, Customer Access Data, and Event Data.
f. Customer agrees to allow Air Trail to report information about the Customer’s account to credit bureaus and to search Customer’s credit rating and history with credit bureaus. Late payments, missed payments, or other defaults on the Customer’s account may be reflected in Customer’s credit report.
Direct all notices, correspondence and questions to:
This Agreement and documents referenced in this Agreement constitute the entire understanding of the parties concerning the subject matter of this Agreement and supersede all prior written or oral understandings. No delay or failure by Air Trail to exercise any right under this Agreement, and no partial or single exercise of that right, nor acceptance of a partial payment, or the waiver of condemnation of any breach or default, shall constitute a waiver of that or any other right, unless otherwise expressly provided. The suppliers, agents, employees, distributors, and dealers of Air Trail are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Air Trail. Any waiver of the terms herein by Air Trail must be in writing and signed by an authorized officer of Air Trail and expressly reference the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by Delaware law as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods is disclaimed by the parties and does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in the State of Delaware or federal court for the District of Delaware. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Notices under this Agreement may be sent via email to Air Trail to email@example.com and to the Customer at the email address provided by Customer when registering for the use of the Services.
Exhibit 1 to Service Agreement
Authorization and Waiver
To: Government agencies, tolling agencies/authorities, leasing companies, third party credential processors, and/or other third party service providers.
As a party to the Service Agreement with Underdog Software Inc., Customer hereby authorizes, waives rights, and grants a waiver to Underdog Software Inc. to enable it to acquire and periodically reconfirm information from Government agencies, tolling agencies/authorities, leasing companies, third party credential processors, and/or other third party service providers concerning registration, permits, licenses, inspections, taxes and any other credentials, including but not limited to all carrier, fleet, aircraft and crew member information required to support Air Trail services (“Waived Information”). This authorization and waiver extends to toll agencies/authorities requiring Customer authorization or waivers to access aircraft registration information from government agencies, tolling agencies/authorities, leasing companies, third party credential processors, and/or other third party service providers. Customer authorizes Underdog Software Inc. to collect, disclose and use such information, and Licensee authorizes and provides a waiver for government agencies, tolling agencies/authorities, leasing companies, and/or third party credential processors or other service providers to release without restriction or liability all such information to Underdog Software Inc.