Thanks for using Nuviation, LLCs (“SierraTrax”) Maintenance Tracking Service! These SierraTrax Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products. “Operator” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR SIERRATRAX USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “OPERATOR” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access SierraTrax, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for SierraTrax, create an account, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.
- Promptly following the effective date of this Terms of Services Agreement and payment, SIERRATRAX shall provide Operator access to SierraTrax’s Maintenance Tracking Service (“Services”), through SIERRATRAX’s on-line management system (the “SIERRATRAX System”).
- SIERRATRAX shall enroll the aircraft identified during the sign-up process, and any additional aircraft added to our Cloud Products, along with all installed propellers, engines, rotables, time controlled parts and accessories (collectively, the “Aircraft”) and/or engine(s) (the “Engine”), as applicable, on the SIERRATRAX System and allow the Operator real-time access to the SIERRATRAX System via the Internet, to assist the Operator in establishing and monitoring data as required under applicable aviation regulations, airworthiness directives and service bulletins for life limited parts.
- Using Maintenance Transaction Records or Aircraft Log Entries (MTRs), as completed by the Operator or its designee, the Services will update the Aircraft and/or Engine maintenance information and allow the Operator to view updated aircraft status.
- Operator will furnish to SIERRATRAX: (i) all historical baseline data; and (ii) all manufacturer’s maintenance manuals (and any updates thereto) required for SIERRATRAX to perform the Services, for use by SIERRATRAX solely to provide the Services. Operator authorizes SIERRATRAX to use the maintenance manuals so that SIERRATRAX can perform the Services.
- Operator will furnish to SIERRATRAX in a timely manner, all information required by SIERRATRAX to perform the initial set-up and to provide the Services (e.g., in the case of inventory control, model, serial, number, part names and numbers. Operator acknowledges that SIERRATRAX will be unable to provide the Services until receipt of all required data, manuals and other information.
- Operator will promptly complete and return to SIERRATRAX all other ongoing information required to provide the Services, including without limitation, completed scheduled and unscheduled MTRs.
- Operator will maintain, manage and keep confidential Operator’s user names and passwords for the SIERRATRAX System. SIERRATRAX shall not be responsible (and Operator shall be solely responsible) for any unauthorized access to Operator’s account due to Operator’s failure to properly manage its user names and passwords, including, by way of example, Operator’s failure to remove such employee’s user name and password upon his/her termination of employment).
- For any excerpt of a maintenance manual, service bulletin or parts catalogue provided to Operator through the SIERRATRAX System, the Operator shall: (a) maintain the same in confidence; (b) preserve and protect the confidentiality thereof using no less than reasonable care; (c) not disclose the same, in whole or in part, to any third party; (d) not, in whole or in part: (i) modify, copy, translate into any language, reproduce or make derivatives thereof; or (ii) reverse engineer, reverse compile, reverse assemble or otherwise translate into any human or machine-readable form any portion thereof; (e) use the same only with the SIERRATRAX System and not, in whole or in part, for any other purpose, including but not limited to: (i) designing, creating, developing, reproducing, manufacturing or deriving any design, part, product, material, process, modification, configuration change or repair; (ii) seeking FAA or other governmental or regulatory approval or acceptance for any of the foregoing; or (iii) any other commercial activity not expressly authorized by SIERRATRAX in writing.
- Monthly and Annual Plans. Except for No-Charge Products, all Cloud Products are offered either on a monthly subscription basis or an annual subscription basis.
- Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in 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 applicable Cloud Product continuing to be offered and will be charged at the then-current rates.
- 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.
- Operator shall be solely responsible for, shall pay, and shall indemnify and hold SIERRATRAX 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 forgoing, if any governmental authority shall impose any withholding tax on the amounts due hereunder, then Operator shall be required to gross up the amounts due to SIERRATRAX so that SIERRATRAX receives the full invoiced amount.
Operator Representations and Warranties
- Operator represents that it has a valid and current license to use all maintenance publications and uses and has used a maintenance program approved by relevant authorities for the Aircraft and/or Engine, as applicable. Operator will be deemed to reaffirm this representation each time it accesses the SIERRATRAX System.
- Operator represents and certifies that: (i) the Aircraft and/or Engine, 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 but not limited to 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) the Operator complies and has 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.
- Operator represents that it understands that the Services are provided to Operator solely as a tool and are not a substitute for Operator’s obligations to monitor and maintain the applicable Aircraft or Engine and records in accordance with all requirements of the manufacturer and regulatory authorities. Operator is responsible for confirming the accuracy of information included with the Services on the applicable Aircraft and/or Engine and all data and information furnished by or through Operator.
- SIERRATRAX PROVIDES THE SERVICES AND OPERATOR ACCEPTS THE SERVICES “AS IS” AND SIERRATRAX EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. Without limiting the foregoing, SIERRATRAX makes no warranties that the Services will comply with the requirements of any law, rule or regulation.
- This Services Agreement shall continue in full force and effect until terminated as provided in this Services Agreement. SIERRATRAX may terminate this Services Agreement at any time if: (i) Operator fails to make any payment due hereunder when the same becomes due and payable, (ii) Operator breaches any other term of this Services Agreement or any other operating procedures of SIERRATRAX provided to Operator, and fails to cure the same within 10 days after receipt of notice from SIERRATRAX, (iii) Operator becomes insolvent or makes any assignment for benefit of its creditors, and (iv) any proceeding is filed by or against Operator under any bankruptcy or similar laws for the relief of debtors.
- This Agreement may not be transferred or assigned by Operator, even if Operator sells or transfers the Aircraft and/or Engine served by this Services Agreement, without the express prior written consent of SIERRATRAX. SIERRATRAX 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.
Data Privacy and Use
- Subpoenas. Nothing in these Terms prevents us from disclosing Your Data 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. Atlassian strives to balance your privacy rights with other legal requirements; to read more about Atlassian’s policies and guidelines for law enforcement officials requesting access to customer data, please see our Guidelines for Law Enforcement Requests.
- GDPR Data Processing Addendum. If you are in the EEAU, Switzerland, or are otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you can request and complete the SierraTrax Data Processing Addendum here.
- Using Your Data to provide Cloud Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your 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 accounts, End User Accounts, and your Cloud Products with End User permission in order to respond to your support requests.
- Sharing your Data. 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 for our no-charge products. 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.
- 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 22.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 22.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
- Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Kansas, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Wichita, Kansas, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Wichita, Kansas USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
- Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Informal Resolution) and 22.2 (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.
- 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.
Limitation of Liability.
- Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY 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 SIERRATRAX be liable for fines or penalties levied on Operator by a regulator, lost profits or revenues, indirect, special, incidental, consequential or similar damages arising out of or in connection with this Services Agreement or performance or non-performance of all or any part of the Services or any other work performed pursuant to this Services Agreement, or for any claim made against Operator by any other person, even if SIERRATRAX has been advised of the possibility of such damages or claim.
- Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
- Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 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.
- Operator will be solely responsible for, and will defend, indemnify and hold harmless SIERRATRAX 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 but not limited to attorneys’ fees and costs and court costs) that may result from, arise out of or relate to the Services or this Services Agreement.
- 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, Operator agrees to notify SIERRATRAX of the involvement of the Government prior submission of the purchase order or purchase of the Services.
- This SIERRATRAX Service Agreement is between SIERRATRAX and Operator. The aircraft manufacturer related to any Aircraft, and the engine component manufacturer related to any Engine, as applicable, is not party to this Services Agreement and makes no representation or warranty under this Services Agreement, whether express or implied.
- No Grant of Intellectual Property. Nothing in this Services Agreement conveys, grants, or obligates SIERRATRAX to convey or grant a license to any patent, trademark or other SIERRATRAX intellectual property right.
- 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.
- Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the SierraTrax; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use SierraTrax 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 non-public 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.
- Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 16. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
- Publicity Rights. We may identify you as an SierraTrax customer in our promotional materials. We will promptly stop doing so upon your request sent to [email protected].
- Export Restrictions. The Cloud Products are subject to export restrictions by the United States 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 United States 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 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, 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 United States government.
- Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 9.12 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
- No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
- Paid Subscriptions. Except as otherwise indicated below, 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 9.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid 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. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
- Our Policies. 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. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
- Changes to the Cloud Products. You acknowledge that the Cloud Products are on-line, 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.
- 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, c/o SierraTrax, 555 Woodlawn, Bldg 1, Suite 227, Wichita, Kansas, 67208, Attn: General Counsel. Your notices to us will be deemed given upon receipt.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
- Entire Agreement. These Terms 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. 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.
- Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.
- 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 9 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
- 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.