WSI AVIATION WEATHER SERVICES SUBSCRIPTION AGREEMENT

Last Revised 8/26/2014

By accepting these Terms of Use, you, the customer (“You”, “Your” or “Customer” as context requires), agree to be contractually bound to all of the terms below with respect to Your use of the WSI service.  If You are accepting on behalf of an entity, You hereby represent and warrant that You have authority to bind that entity to these Terms of Use and the Subscription (“Subscription Agreement”).  You agree:

I.              DEFINITIONS

The following terms shall have the following meanings for the purpose of these Terms of Use: 

A.      “ASD Data” means, if applicable, the Aircraft Situation Display contained within the Service.

B.     “Concurrent Users” means, if applicable to your Subscription, the number of Customer end users permitted access to the Services at the same time. 

C.     “Customer Entered Data” means any and all data entered by You (or any person authorized by You) in the Service, excluding Your Personal Information.  Such data may include, but is not limited to, FBO pricing and facility data, observed weather conditions, pilot comments, video of airport weather conditions and airport facility information. 

D.     “Enterprise License” means, if expressly elected as part of Your Subscription, the right of an unlimited number of employees within Customer’s organization to use and access the Services. 

E.     “FAA” means the U.S. Federal Aviation Administration.

F.     “FAA Guidelines” means any guidelines provided by the FAA regarding the use of the ASD Data. 

G.     “Intellectual Property Rights” means the intangible legal rights or interests evidenced by or embodied in (i) any idea, design, concept, technique, invention, program, discovery, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (ii) any trademark, trade name or trade dress; and (iii) any work of authorship, regardless of the availability of copyright protection, but including copyrights and any moral rights recognized by law.

H.      “Licensing Limits” means the use and access limits (e.g. number of Seats, Concurrent or Named Users, Site or Enterprise licenses) indicated on your Subscription.  If no limits are expressly provided, only You (a single individual) shall be entitled to use the Service.  .

I.      “Named Users” means those number of individuals, if any, identified in the Subscription as permitted users of the Service. Each Named User shall be assigned a unique user code and password and that user code and password shall be kept strictly confidential and used exclusively by the individual(s) to whom the code(s) have been assigned.

J.      “Personal Information” means information personal to You entered with your Subscription, such as Your name, address, email address, or credit card information. 

K.     “Seats” means, if indicated on the Schedule, the number of PCs or devices permitted access to the Service. 

L.      “Service(s)” means the WSI aviation weather information service(s) (e.g. WSI’s Fusion, Pilotbrief and Hubcast Services) subscribed to by You and all data (including without limitation ASD Data), information, graphics and content included therein.

M.      “Site License” means, if indicated in Your Subscription, a right of an unlimited number of employees of Customer at a single identified facility to use and access the Service.   

N.     “Subscription” means the Service(s) for which you have registered and which are governed by these Terms of Use. 

II.             TERM AND TERMINATION; RENEWALS; SURVIVAL

A.  TERM AND TERMINATION.  The term of Your Subscription shall begin on the date WSI provisions the Service (the “Subscription Date”) and shall run for the period or term indicated in the Subscription thereafter (“the “Subscription End Date”).  Absent cancellation or notification to the contrary by You or WSI at least thirty (30) days prior to the Subscription End Date, Your Subscription shall automatically renew annually for additional one (1) year periods on the Subscription End Date.  If You default on any of your obligations hereunder during the term of Your subscription, including without limitation Your obligation to timely make payments, WSI may, at its option, terminate or suspend the Service and Your Subscription. Such termination will not prejudice WSI's rights to any amounts otherwise owing by you by reason of Your Subscription or other rights or remedies WSI may have at law or in equity. 

B  SURVIVAL.  Upon termination or expiry of Your Subscription for any reason, (i) the Service access and rights of use thereto shall terminate, and (ii) all amounts due hereunder, together with  Articles V, VI, VIII, X, and XI. shall survive the Subscription Agreement to give proper effect to their respective terms.

III.            SERVICE

A.  SUBSCRIPTION; PASSWORDS. 

In completing the registration process for Your Subscription, You represent that You have provided WSI with current, complete and accurate information as prompted by the applicable registration form.  You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, You are entirely responsible for any and all activities that occur under Your account. You agree to notify WSI immediately of any unauthorized use of Your account or any other breach of security. WSI will not be liable for any loss that You may incur as a result of someone else using Your password or account, either with or without Your knowledge. However, You will be liable for all losses incurred by WSI due to someone else using Your account or password. You may not use anyone else's account at any time.

B.  LICENSE TO USE.  Subject to the applicable Licensing Limits for the Service(s) acquired hereunder and these Terms of Use, WSI hereby grants You a limited, non-exclusive, non-transferable license to access and use the Service solely for Your own internal use during the term of Your Subscription.   WSI shall be entitled to suspend or terminate the Service, and to the retention of any prepaid fees, at any time in the event of any noncompliance by You with the Licensing Limits.      

C. CONDITIONS AND RESTRICTIONS. Connectivity to the Internet and any hardware and software required for use of the Service is Your  responsibility.  You have the right to print copies of the information included within the Service solely for your own internal use.  In no event shall You electronically reproduce, redistribute or retransmit in any form the Service, or any parts thereof, or resell, sublicense, use as a service bureau or externally electronically display or exhibit the Services, or attempt to copy, download, modify, use (other than as part of the Service), disassemble, decompile, reverse engineer or otherwise attempt to derive any software or program code (including without limitation any source code) associated with the Service. 

D.  ASD DATA (If applicable).  The ASD Data is supplied to WSI by the FAA and is subject to certain restrictions and requirements in addition to those otherwise applied to the Service under this Article III.  Customer shall not alter, modify or degrade in any way the ASD Data and shall comply with all applicable FAA Guidelines relating to the use of the ASD Data, including without limitation any audit requirements. Customer agrees not to contact the FAA, any FAA air traffic control facility, or the Air Traffic Control System Command Center regarding operational traffic flow management issues or technical or system problems, and shall instead contact only WSI.

Customer shall cooperate and promptly comply with any request of WSI made to determine compliance with these terms and the FAA Guidelines.   In the event WSI or the FAA at any time determines that Customer is not in compliance with any terms of this Subscription or the FAA Guidelines related to the ASD Data, WSI shall have the right to interrupt, suspend or terminate the provision of or access to the ASD Data to Customer and such action shall not constitute a breach of these terms by WSI.

E.  CUSTOMER ENTERED DATA; PERSOONAL INFORMATION.  In the event You enter any Customer Entered Data in the Service, You hereby grant WSI and its affiliates the irrevocable, unrestricted, worldwide, royalty-free, perpetual right to use, copy, distribute, exhibit, create derivative works from and otherwise exploit in any manner all such Customer Entered Data in any media now existing or hereafter created without attribution or compensation of any kind.        

WSI shall use Your Personal Information solely in connection with the provision of the Service to You and subject to its privacy policy. 

F.  CHANGES TO SERVICES.  In order to improve the quality of the Service, WSI reserves the right hereunder to make changes from time to time in the Service without notice to You.  You acknowledge that WSI receives certain data included in the Service from third parties and agrees that in the event that receipt of such data by WSI is terminated for any reason, WSI shall have the right to terminate transmission of such data and to provide substitute products hereunder.

IV.            BILLING/PAYMENT TERMS

A.  FEES.  You will be billed on a monthly, quarterly or annual basis, in advance, as indicated in Your Subscription for recurring Service fees.  Payment shall be by valid credit card or by Your timely payment invoice, as indicated in Your Subscription.    All invoices shall be payable within 30 days of the date thereof. 

Annually upon the anniversary of your Subscription Date and with 60 days advance notice to You, WSI shall have the right to increase the Subscription fee for the Service.  Each increase shall become effective upon the next anniversary of the Subscription Date and shall be payable in the initial manner selected by You in the Subscription (i.e.by credit card or invoice payment).   Notices of increases shall be effective if set forth on an invoice or in a billing insert sent to You, given via an electronic display transmitted on or through the Service, sent by email to Your email address or if otherwise provided in writing to You.  All payments shall be made in U.S. dollars.   

C.  TAXES. The amounts paid by You for the Service, are exclusive of any sales, purchase, use, value‑added, gross receipts, excise, withholding or similar taxes which may be levied thereon. You shall be liable for all such taxes. 

D.  LATE PAYMENTS; DEFAULT IN PAYMENT. You shall pay a late payment charge of 1 % per month, or the maximum amount allowed by law if lower, on all delinquent payments hereunder from the date payment was due.  In addition, in the event the You default on any payment obligation, You shall be liable to WSI for all costs and expenses, including reasonable attorney's fees, incurred in the collection of any balance owed.

V.             ADVISORY NATURE OF SERVICE; NO FAA ENDORSEMENT

You acknowledge and agree that the Service is wholly advisory in nature and all actions and judgments taken with respect to the Service are Your sole responsibility. WSI makes no representations with respect to the reliability, timeliness, predictive value or accuracy of the information contained within the Service  and WSI and its suppliers shall not be responsible for errors resulting from any inaccurate, delayed, omitted, misstated, incorrectly displayed or other erroneous information.  You acknowledge the inherent risk of relying upon weather data and aircraft location data and are urged to verify information included within the Service against other sources prior to use.

You acknowledge that the Service, including the ASD Data included therein, are not guaranteed, sponsored, recommended, warranted or endorsed by the FAA. 

VI.            NO WARRANTY

WSI AND ITS SUPPLIERS MAKE NO WARRANTY WITH RESPECT TO THE SERVICES AND, ACCORDINGLY, THE SERVICES HEREUNDER ARE PROVIDED “AS IS”.  TO MAXIMUM EXTENT PERMITTED BY LAW,  WSI MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE OR OF MERCHANTABILITY (WHICH ARE DISCLAIMED), REGARDING THE SERVICES.  WSI ASSUMES NO RESPONSIBILITY FOR YOUR OR YOUR EMPLOYEES’ OR CLIENTS’ USE OF THESERVICES.

VII.           PATENT AND COPYRIGHT INDEMNIFICATION

WSI will defend Customer against a claim that the Service infringes any Intellectual Property Rights of any third party enforceable in the United States, and WSI will pay any resulting costs, damages, and reasonable attorney's fees finally awarded, provided that Customer promptly notifies WSI in writing of the claim, WSI has sole control of the defense and all related settlement negotiations, and Customer provides WSI with complete information concerning the claim. WSI shall have no obligation  or liability hereunder to the extent that Customer has (i) modified the Service, or (ii) combined the Service with other products, technology or services and the infringement would not have arisen but for the combination.  WSI's obligation hereunder is conditioned on Customer's agreement that if any part of the Service becomes, or in WSI's opinion is likely to become, the subject of such claim, Customer will permit WSI, at its option and expense, either to procure the right for Customer to continue using Service or to replace or modify the same so that it becomes non-infringing while retaining equivalent functionality. If neither of the foregoing alternatives is available on terms that are reasonable in WSI's sole judgment, WSI shall have the right to terminate the Service and Your Subscription.. This Article states WSI's entire liability for infringements of the Intellectual Property Rights of any third party.

VIII.          LIMITATIONS OF WSI LIABILITY

A.             LIMITATIONS OF LIABILITY:  YOU ACKNOWLEDGE THAT THERE ARE SUBSTANTIAL RISKS INHERENT IN PROVIDING A WEATHER ADVISORY AND AIRCRAFT LOCATION INFORMATION SERVICE AND THAT WSI HAS ADVISED YOU NOT TO RELY EXCLUSIVELY UPON THE SERVICE IN MAKING AVIATION DECISIONS. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, OR THE FORUM IN WHICH ANY ACTION MAY BE BROUGHT BY YOU AGAINST WSI, TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU AGREE THAT WSI'S LIABILITY, IF ANY, TO YOU FOR ANY LOSS, DAMAGE, CLAIM, LIABILITY OR EXPENSE, OF ANY KIND ARISING OUT OF THE SERVICE OR THE NEGLIGENCE OF WSI SHALL BE EXCLUSIVELY LIMITED TO MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE PRICE PAID BY YOU FOR THE MOST RECENT TWELVE MONTHS OF SERVICES.  IN NO EVENT SHALL WSI OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS OR DAMAGES FROM LOSS OF USE OR DATA (DESPITE THE FACT THAT THE POSSIBILITY OF SUCH DAMAGES ARE OR MAY BE KNOWN TO WSI).  

B.             INDEMNIFICATION:  AS INDICATED ABOVE, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICE AND ANY RELIANCE THEREON.  ACCORDINGLY, EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF WSI, YOU AGREE TO INDEMNIFY, HOLD HARMLESS, AND DEFEND WSI, ITS AFFILIATES AND SUPPLIERS FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, EXPENSES (INCLUDING ATTORNEY'S FEES) OR LIABILITIES OF WHATEVER NATURE OR KIND ASSERTED, SUFFERED OR INCURRED BY THIRD PARTIES ARISING OUT OF YOUR USE OF THE SERVICE.

IX.            PRIVACY AND SECURITY REGARDING ASD DATA

The ASD Data includes the near real time position and other flight data of civil instrument flight rules aircraft. While commercial operators conduct business according to a published listing of service and schedule, general aviation operators do not. In many cases, the general aviation data is available to the FAA only because of regulatory requirements associated with various types of flights and/or other operating characteristics. It is possible that public knowledge of the flight information of general aviation operators could compromise the privacy and/or security of individuals. As a condition of the use of the ASD Data, You agree to use reasonable efforts to maintain the confidentiality of the ASD Data so as to protect the privacy and security of affected individuals (and in any event You shall comply with all applicable privacy and data security laws and regulations) and You acknowledge that WSI shall have the right to suspend or terminate the provision of the ASD Data in the event either it or the FAA determines that the provisions of this Article have been violated.  

X.             INTELLECTUAL PROPERTY. All Intellectual Property Rights in the Service, and any modifications ,improvements or derivative works thereto, however, arising, and all parts thereof and content therein, are and shall remain the sole property of WSI and its licensors.

XI.            APPLICABLE LAW; PLACE OF DISPUTE RESOLUTION

This Subscription Agreement is to be governed and interpreted in accordance with the laws of the State of Georgia, without giving effect to the conflict of law provisions thereof, and venue for any action or legal proceeding related to or arising out of this Subscription shall be exclusively in the appropriate state or federal courts located in Georgia and You hereby consents to the personal jurisdiction of such courts.

XII.           WAIVER, SEVERABILITY, AND NON-ASSIGNABILITY

No course of dealing of WSI, no failure of WSI to exercise, and no delay in exercising any right, or remedy, shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by WSI preclude any other or further exercise thereof or the exercise of any other right or remedy.  No waiver by WSI to any breach of or default in any provision of this Subscription Agreement shall constitute a waiver of or assent to any succeeding breach of or default in the same or any other provision hereof. Should any part of this Subscription Agreement for any reason be declared invalid or void, such decision shall not affect the remaining portion which will remain in full force and effect as if the Agreement had been executed with the invalid portion eliminated.  This Subscription shall not be assigned by You without the prior written consent of WSI.

XIII.          FORCE MAJEURE

WSI shall have no liability to You for failure to perform the Service or any other obligation due to occurrences beyond its reasonable control, including, but not limited to, strikes, riots, wars, fire, acts of God, acts in compliance of any law or government regulation or acts of any third party not affiliated with WSI.

XIV.          NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms.  You may not use the Service in any manner that could damage, disable, overburden, or impair any WSI server, or the network(s) connected to any WSI server, or interfere with any other party's use and enjoyment of any Service. You may not attempt to gain unauthorized access to any Service, other accounts, computer systems or networks connected to any WSI server or to any of the Service, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service.    

XV.           GENERAL; WSI MODIFICATION OF TERMS; NOTICES

This Subscription Agreement contains the entire understanding of the parties and supersedes all prior understandings, written or oral with respect to the subject matter hereof. WSI shall be entitled to modify these Terms of Use at any time without notice to You and such modifications shall become effective upon the date thereof.  Trial services, if any, are for purposes of demonstration and evaluation only and Your use is subject to these Terms of Use.  WSI may provide effective notice to You relating to Your Subscription by any contact means included in Your registration, including without limitation by text or email.