This Agreement constitutes the expressed written agreement defining the terms, conditions, restrictions, covenants, and legal obligations between you (“Charter Operator” or “You”) and Chartwind, LLC, a Kansas limited liability company (“ChartWind”), or any of its affiliated companies or lawful assigns.
ChartWind maintains an online web-based portal located at http://chartwind.com (the “Website”). The Website enables a person who has registered as a User (as defined below) of the Website to request aircraft chartering services from aircraft charter operators who have executed and agreed to be bound by this Agreement.
ChartWind is not a Part 135 Operator (as defined below) licensed by the FAA (as defined below) and ChartWind does not provide aircraft charter services.
You are and shall be and shall remain an independent contractor licensed by the FAA as a Part 135 Operator, which business You are authorized to conduct in the state(s) and jurisdiction(s) in which You operate. As used herein, “You” and “Charter Operator” shall include Your employees, subcontractors, agents, and representatives, all of which shall be bound by the terms of this Agreement. You desire to enter into this Agreement for the purpose of access and using the Website to increase Your aircraft chartering business.
In order to use the Website, You must agree to the terms and conditions that are set out below. Upon Your electronic execution of this Agreement, You and ChartWind shall be bound by the terms and conditions set forth herein.
1. DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, the following definitions apply:
1.1 “Affiliated Company” means a company that directly or indirectly is under control of or controls that relevant party, by having more than fifty percent (50%) of the voting stock or membership certificates or other ownership interest or the majority of the voting rights.
1.2 “Agreement” means this Agreement by and between You, as the Charter Operator, and ChartWind.
1.3 “Aircraft” means any aircraft operated in connection with any Flight.
1.4 “Aircraft Chartering Service” means the service for transporting Users as provided by the Charter Operator upon request of the User through the Website.
1.5 “Charter Contract” means the agreement for aircraft chartering services, by and between the Charter Operator and the User, said agreement being a wholly separate contractual relationship from this Agreement.
1.6 “Charter Price” means the total amount which the User agreed to pay to the Charter Operator in exchange of the Aircraft Chartering Service pursuant to a Charter Contract.
1.7 “Charter Operator” means the FAA-licensed Part 135 Operator which has agreed to the terms and conditions of this Agreement.
1.8 “ChartWind Service” means the on-demand service through the Website that allows a User to request and accept an Aircraft Chartering Service from a Charter Operator and allows a Charter Operator to provide a bid to a User for a requested Aircraft Chartering Service.
1.9 “Data” means all information with regard to or transmitted using the Website and all information relating to the User and/or the Flight.
1.10 “FAA” means the United States Department of Transportation’s Federal Aviation Administration.
1.11 “Flight” means the transportation of the User by the Charter Operator pursuant to the Charter Contract.
1.12 “Operator Fee” means the amount paid by the Charter Operator to ChartWind for the ChartWind Service, if applicable.
1.13 “Part 135 Operator” means an aircraft operator which complies with the applicable requirements of Part 135 of Title 14 of the United States Code of Federal Regulations.
1.14 “User” means a person who is registered with ChartWind for the use of the Website’s portal and/or the ChartWind Service.
1.15 “User Fee” means the amount paid by the User to ChartWind for the ChartWind Service.
1.16 “User Information” means information provided by the User to ChartWind via the Website, including information related to the User, the Flight, the ChartWind Service, the Aircraft Charter Service, and the Charter Contract.
1.17 “Website” means the ChartWind website, including its online date portal, located at http://chartwind.com.
2. LICENSE GRANT
2.1 Use of and access to the Website.
ChartWind hereby grants the Charter Operator a non-exclusive, non-transferable, right to use the Website and ChartWind Service, subject to the terms and conditions of this Agreement, for the sole purpose of providing and rendering the Aircraft Chartering Service to and for the benefit of the Users. All rights not expressly granted to You are reserved by ChartWind and its licensors.
2.2 Restrictions.
The Charter Operator shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the ChartWind Service or the Website in any way; (ii) modify or make derivative works based upon the ChartWind Service or the Website; (iii) create Internet “links” to the ChartWind Service or Website; (iv) reverse engineer, decompile, modify, or disassemble, except as allowed under the applicable law; (v) access the Website in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the ChartWind Service or Website, or (c) copy any ideas, features, functions or graphics of the ChartWind Service or Website; or (vi) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses, worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the ChartWind Service or Website.
Charter Operator may not use the Website and ChartWind Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Website or ChartWind Service or the data contained therein; or (v) attempt to gain unauthorized access to the Website or ChartWind Service or its related systems or networks.
2.3 Unavailability.
The Charter Operator acknowledges and agrees that the Website or the ChartWind Service may, from time to time, be unavailable (e.g. due to scheduled maintenance or system upgrades) and that ChartWind cannot, and does not, guarantee a specific or minimum availability of the Website or the ChartWind Service.
2.4 Ownership.
ChartWind (and its Affiliated Companies and licensors, where applicable) shall own and have all rights (including Intellectual Property Rights) in and to the Website, the ChartWind Service, and the Data. Insofar the Charter Operator may, by operation of applicable law or otherwise, obtain any rights (including Intellectual Property Rights) in relation thereto, these rights shall be and are hereby transferred (insofar permitted under the applicable law, in advance) to ChartWind. Where a transfer may not be permissible under the applicable mandatory law, the Charter Operator hereby undertakes to grant and to procure a grant to ChartWind of a perpetual, exclusive (exclusive also with regard to the Charter Operator), world-wide and transferable right and license under any such non-transferable rights.
3. OBLIGATIONS OF THE CHARTER OPERATOR
3.1 The Charter Operator shall have the sole responsibility for any obligations or liabilities to the Users or third parties that arise from its provision of Aircraft Chartering Services. By using the ChartWind Services to receive and accept requests for Aircraft Chartering Services, the Charter Operator accepts, agrees, and acknowledges that a direct legal relationship is created and assumed solely between the Charter Operator and the User. The Charter Operator shall enter into a Charter Contract for the provision of Aircraft Chartering Services with any User whose request for Aircraft Chartering Services has been accepted by the Charter Operator. The Charter Operator acknowledges that any Charter Contract it enters into with a User is a legal relationship wholly separate from this Agreement. The Charter Operator agrees that it will provide the Aircraft, all pilots and crew members, transportation documents, and arrangements necessary to render the Aircraft Chartering Services to the User, including any security requirements imposed by the United States Transportation Security Administration. The Charter Operator further agrees that it is solely responsible for any and all air transportation and fuel excise taxes arising from or out of the Aircraft Chartering Services or any Flight provided by the Charter Operator.
3.2 The Charter Operator agrees and acknowledges that ChartWind is not an agent of the Charter Operator or the User.
3.3 ChartWind shall not be responsible or liable for the actions, omissions, and behavior of the User in or in relation to the activities of the Charter Operator, the Aircraft, or the Charter Contract, including breach or termination of the Charter Contract by the User. The Charter Operator acknowledges and agrees that it is solely responsible for taking such precautions as may be reasonable and proper (including taking out adequate insurance in conformity with standard market practice and in conformance with any applicable regulations or other licensing requirements) regarding any acts or omissions of the User.
3.4 The Charter Operator agrees that at all times it shall be and remain a Part 135 Operator licensed by the FAA. The Charter Operator further agrees that at all times it shall comply with all applicable laws, regulations (including FAA regulations), rules, statutes, or ordinances governing or otherwise relating to the Aircraft Chartering Service.
3.5 The Charter Operator represents and undertakes to procure that any and all of its Aircraft pilots, Aircraft crew members, employees, agents, and representatives shall comply with, adhere to, and observe the terms and conditions set forth in this Agreement and all applicable laws, regulations, rules, statutes, or ordinances governing or otherwise relating to the Aircraft Chartering Service. To the extent required, the Charter Operator hereby agrees and ensures that the rights, covenants, undertakings, representations, and obligations of the Charter Operator as set out in this Agreement shall apply to, and be assumed, accepted, and taken over by its Aircraft pilots, Aircraft crew members, employees, agents, and representatives.
3.6 The Charter Operator acknowledges and agrees that it exercises sole and independent control over its Aircraft pilots, Aircraft crew members, employees, agents, and representatives, and will comply with all applicable laws and regulations (including tax, social security, and employment laws) governing or otherwise applicable to its relationship with its Aircraft pilots, Aircraft crew members, employees, agents, and representatives. ChartWind does not and does not intend to exercise any control over the actions of the Aircraft’s pilots or crew members or the operation or physical condition of the Aircraft (except as provided under this Agreement).
3.7 The Charter Operator undertakes that it will safeguard, protect, and keep the User Information received from ChartWind and the details of any Flight at all times confidential and shall not disclose it to any person or store the information in any manner, except as required by law.
3.8 The Charter Operator shall immediately notify ChartWind of any actual or suspected security breach or improper use of the Website, the Data, or the User Information.
4. USE OF CHARTWIND SERVICE AND WEBSITE BY CHARTER OPERATOR
4.1 Website Login.
ChartWind will issue the Charter Operator Website login information, including a username and password. The Charter Operator may use such login information to access and use the Website’s online portal to receive and accept requests from Users for Aircraft Chartering Services. ChartWind will have the right, at all times and at ChartWind’s sole discretion, to reclaim, prohibit, suspend, limit, or otherwise restrict the Charter Operator from accessing or using the Website.
4.2 Information Provided to Users.
4.2.1 Once the Charter Operator has accepted a User’s request for Aircraft Chartering Services, ChartWind will provide the User Information to the Charter Operator via the Website, including the User’s location. The Charter Operator acknowledges and agrees that once it has accepted a User’s request for Aircraft Chartering Services, ChartWind may provide specific information to the User regarding the Charter Operator in relation to the Aircraft Chartering Service, including but not limited to the name of the Charter Operator and the Aircraft’s pilots and crew members, the Aircraft’s specifications and registration information, geo-location, and contact information.
4.2.2 The Charter Operator retains the sole right to determine when and for how long it will utilize the Website and ChartWind Services to receive requests for Aircraft Chartering Services. The Charter Operator also retains the option to accept or reject each request for Aircraft Chartering Services received via the Website.
4.3 Disclosure of Information.
In case of a complaint, dispute, or conflict between the Charter Operator and the User, or in other appropriate instances where a legitimate reason for such disclosure exists (for example, receipt by ChartWind of a subpoena or warrant requesting information), ChartWind may, but shall not be required to—to the extent permitted by applicable laws and regulations—provide the User, the Charter Operator, and/or the relevant authorities the relevant data (including personal data) of the Charter Operator or the User. ChartWind may disclose certain information of the Charter Operator as set forth in this Agreement.
5. PAYMENT AND FEES
5.1 Payment by User.
5.1.1 The Charter Operator agrees and acknowledges that it bears full responsibility for collecting payment from the User for the Charter Price and any and all costs, expenses, charges, fees, penalties, and other amounts owed by the User to the Charter Operator related to the Aircraft Charter Service.
5.1.2 The Charter Operator agrees to comply with all applicable laws and regulations, including FAA regulations, governing the advertising of prices for the Aircraft Charter Services.
5.2 Operator Fee.
The Charter Operator shall not be assessed any fee or charge in exchange for its use of the Website and the ChartWind Service. However, ChartWind reserves the right to amend this Section 5.2 pursuant to the notice and publication requirements of Section 11. The Charter Operator agrees that it bears full responsibility for all costs, expenses, charges, fees, penalties, and any other amounts owed by the Charter Operator related to the Aircraft Charter Service.
6. REPRESENTATIONS
6.1 Charter Operator Representations.
6.1.1 The Charter Operator represents to ChartWind that for the term of this Agreement:
(i) it holds, complies, and shall continue to hold and comply with all permits, licenses, and other governmental authorizations necessary for conducting, carrying out, and continuing its activities, operations, and business in general and the Aircraft Chartering Service in particular;
(ii) it shall comply with all local laws and regulations, including the laws related to the operation of a Aircraft Chartering Service and will be solely responsible for any violations of such local laws and regulations;
(iii) it and its pilots are authorized to operate any Aircraft and have all the appropriate licenses, approvals, and authority to provide air transportation for hire to third parties in the geographic locations where the Aircraft Chartering Service is rendered or performed;
(iv) it has appropriate and up-to-date level of expertise and experience to enable and provide the Aircraft Chartering Service and the Aircraft Chartering Service will be supplied, provided, and supported by appropriately qualified and trained pilots acting with due skill, care, and diligence;
(v) it has and maintains a valid policy for the appropriate (transportation, hauling, personal injury, third party or general) liability insurance and such other insurances as are considered market practice (all in industry-standard coverage amounts) for the operation of the Aircraft and/or business insurance to cover any anticipated risks, damages, and losses related to the operation of an Aircraft Chartering Service, and not less than the minimum coverage amounts required by applicable law. The Charter Operator shall add ChartWind to its liability insurance policy as an additional insured, and shall upon first request of ChartWind provide ChartWind with a copy of the insurance certificate;
(vi) its employees are covered by workers’ compensation insurance, as required by law. If permitted by law, the Charter Operator may choose to insure itself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. The Charter Operator’s subcontractors may also, to the extent permitted by law, maintain occupational accident insurance in place of workers’ compensation insurance;
(vii) the Aircraft is kept in a clean condition at all times, such Aircraft is in good operating condition and meets the industry safety standards for an Aircraft of its kind, particularly to provide the Aircraft Chartering Service;
(viii) the Charter Operator is the owner or lessee, or is otherwise in lawful possession of an Aircraft, and said Aircraft is suitable for performing the Aircraft Chartering Services contemplated by this Agreement, which equipment complies with all applicable federal, state, and local laws.
6.2 Disclaimer.
6.2.1 ChartWind provides, and the Charter Operator accepts, the ChartWind Service and use of the Website on an “as is” and “as available” basis. ChartWind does not warrant or guarantee that the Charter Operator or the User’s access to or use of the ChartWind Service or the Website will be uninterrupted or error free.
6.2.2 Internet Delays. THE CHARTWIND SERVICE AND WEBSITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CHARTWIND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6.3 Charter Operator Indemnifications.
6.3.1 Subject to the exceptions set forth in this Agreement, the Charter Operator agrees and undertakes and ensures that the Charter Operator will indemnify, defend, and hold ChartWind (and its Affiliated Companies and employees and, at the request of ChartWind, ChartWind’s licensors, suppliers, officers, directors, and subcontractors) harmless from and against any and all claims, demands, expenses (including legal fees), damages, penalties, fines, social contributions, and taxes by a third party (including Users, regulators, and governmental authorities) directly or indirectly related to this Agreement.
6.3.2 The Charter Operator is solely responsible for ensuring that the Charter Operator’s pilots, crew members, employees, agents, and representatives take reasonable and appropriate precautions in relation to any third party with which they interact in connection with the Aircraft Chartering Service. Where this allocation of the parties’ mutual responsibilities may be ineffective under applicable law, the Charter Operator undertakes to indemnify, defend, and hold ChartWind harmless from and against any claims that may be brought against ChartWind in relation to the Charter Operator’s provision of the Aircraft Chartering Service under such applicable law as further set forth in Section 6.3 (Charter Operator Indemnifications).
7. RELATIONSHIP BETWEEN THE PARTIES
7.1 The relationship between ChartWind and the Charter Operator is solely that of independent contracting parties.
7.2 ChartWind and the Charter Operator expressly agree that this Agreement is not an employment agreement or employment relationship. The parties further agree that no employment contract is created between ChartWind and any of the Charter Operator’s pilots, crew members, employees, agents, and representatives.
7.3 ChartWind and the Charter Operator expressly agree that no joint venture, partnership, employment, or agency relationship exists between You, ChartWind, or any third party provider as a result of this Agreement or use of the ChartWind Service or Website.
7.4 The Charter Operator acknowledges and agrees that it has no authority to bind ChartWind and undertakes not to hold itself out and to ensure that its pilots, crew members, employees, agents, and representatives do not hold themselves out, as an employee, agent, or authorized representative of ChartWind. Where, by implication of mandatory law or otherwise, the Charter Operator may be deemed an agent or representative of ChartWind, the Charter Operator undertakes and agrees to indemnify, defend, and hold ChartWind harmless from and against any claims by any person or entity based on such implied agency relationship.
8. LIABILITY
8.1 IN NO EVENT SHALL CHARTWIND’S AGGREGATE LIABILITY EXCEED ANY FEES ACTUALLY PAID BY AND/OR DUE FROM THE CHARTER OPERATOR IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL CHARTWIND BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE). CHARTWIND SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY WHICH MAY BE INCURRED BY THE CHARTER OPERATOR, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE, OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE CHARTWIND SERVICE OR WEBSITE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE CHARTWIND SERVICE OR WEBSITE.
8.2 If the disclaimer of liability by ChartWind as set out in Clause 8.1 shall, for some reason, not have any effect, the maximum aggregate liability of ChartWind vis-a-vis the Charter Operator is limited to 50% of the total amount of any Operator Fee paid to ChartWind by the Charter Operator in the year (12 months) preceding the event that led to the liability.
8.3 All defenses (including limitations and exclusions of liability) in favor of ChartWind apply (i) regardless of the ground upon which a liability is based (whether default, tort, or otherwise), (ii) irrespective of the type of breach of obligations (guarantees, contractual obligations, or otherwise), (iii) for all events and all agreements together, (iv) insofar no event of willful misconduct or gross negligence of ChartWind or its management has occurred, and (v) also for the benefit of ChartWind’s Affiliated Companies and employees and, at the request of ChartWind, its licensors, suppliers, and subcontractors.
8.4 ChartWind makes no guarantees, warranties, or representations as to the actions or conduct of any Users who may request an Aircraft Chartering Service from the Charter Operator. Responsibility for the decisions the Charter Operator makes regarding the Aircraft Chartering Services offered via the Website or ChartWind Service (with all its implications) rests solely with the Charter Operator. The Charter Operator agrees that it is Your responsibility to take reasonable precautions in all actions and interactions with any third party You interact with through the ChartWind Service.
8.5 The Aircraft Chartering Services that You provide pursuant this Agreement are fully and entirely Your responsibility. ChartWind does not screen or otherwise evaluate potential Users of Your Aircraft Chartering Services. You understand, therefore, that by using the Website and the ChartWind Service, You may be introduced to third parties that may be potentially dangerous, and that You use the Website and the ChartWind Service at Your own risk.
8.6 Notwithstanding the Charter Operator’s right, if applicable, to take recourse against its pilots, crew members, employees, agents, and/or representatives, the Charter Operator acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of its pilots, crew members, employees, agents, and representatives vis-a-vis the User and ChartWind, even where such vicarious liability may not be mandated under applicable law.
8.7 CHARTWIND WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE CHARTWIND FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR CHARTWIND SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE WEBSITE OR CHARTWIND SERVICE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF KANSAS (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
9. TERM, TERMINATION, AND SUSPENSION
9.1 This Agreement shall commence on the date this Agreement is accepted, for an indefinite period of time, unless terminated by either party by written notice with due observance of a notice period of ten (10) calendar days. ChartWind may terminate this Agreement automatically, without any notice requirement, at such moment when the Charter Operator no longer qualifies, under the applicable law or the quality standards of ChartWind, to provide the Aircraft Chartering Service or to operate the Aircraft. The Charter Operator shall be liable to pay ChartWind the Operator Fee, if applicable, for the month during which the Agreement is terminated pursuant to this Section 9.
9.2 Each party may terminate this Agreement or suspend this Agreement in respect of the other party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other party of any term of this Agreement (including but not limited to breach of representations or receipt of a significant number of User complaints); or
(b) insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party.
9.3 Upon termination of this Agreement, the Charter Operator and/or its pilots, crew members, employees, agents, and/or representatives shall cease any and all use of the Website and promptly return all Data provided by ChartWind without withholding a copy thereof.
10. CONFIDENTIALITY
10.1 Parties understand and agree that in the performance of this Agreement, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the “Confidential Information”). Confidential Information includes Data, transaction volume, marketing and business plans, business, financial, technical, operational, and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
10.2 Each party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties, and agents (the “Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall not, and shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others, or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other party.
10.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena, or governmental authority, and (b) nothing in this Agreement shall prevent, limit, or restrict a party from disclosing this Agreement (including any technical, operational, performance, and financial data (but excluding any User Data)) in confidence to an Affiliated Company.
11. MODIFICATIONS
11.1 ChartWind reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the Website at http://chartwind.com. ChartWind shall provide written notice to all Users and Charter Operators at least thirty (30) days prior to the date of publishing an updated or modified version of this Agreement on the Website.
11.2 The Charter Operator hereby expressly acknowledges and agrees that, by using or receiving the ChartWind Service and using the Website after the date of publication of any future amendments or additions to this Agreement, the Charter Operator and ChartWind are bound by such future amendments and additions to this Agreement or documents incorporated herein. Continued use of the ChartWind Service or the Website after any such changes shall constitute Your consent to such changes.
12. MISCELLANEOUS
12.1 If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
12.2 Neither party shall be entitled to assign, transfer, or encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party, provided that ChartWind may assign, transfer, or encumber any of its rights and/or the obligations under this Agreement (in whole or in part or from time to time) to (a) an Affiliated Company, or (b) in the event of a merger or sale of assets without the prior written consent of the Charter Operator.
12.3 This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings, or statements regarding such subject matter.
12.4 The failure of ChartWind to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ChartWind in writing.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement shall be governed by Kansas law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the ChartWind Service or the Website shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of Wichita, Sedgwick County, Kansas.
13.2 Other than disputes regarding the intellectual property rights of the parties, any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the ChartWind Service or the Website may be subject to arbitration pursuant to Section 13.3.
13.3 Arbitration.
A. ARBITRATION. You agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof or the use of the ChartWind Services (collectively, “Disputes”)will be settled by binding arbitration between You and ChartWind, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that You and ChartWind are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action representative proceeding. Further, unless both You and ChartWind otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 13.3 will be deemed void. Except as provided in the preceding sentence, this Section 13.3 will survive any termination of this Agreement.
B. ARBITRATION RULES AND GOVERNING LAW. The arbitration will be administered by the American Arbitration Association (“AAA”)in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”)then in effect, except as modified by this Section 13.3. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act will govern the interpretation and enforcement of this Section 13.3.
C. ARBITRATION PROCESS. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Kansas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within fifteen (15) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
D. ARBITRATION LOCATION AND PROCEDURE. Unless You and ChartWind otherwise agree, the arbitration will be conducted in the county where You reside. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents You and ChartWind submit to the arbitrator, unless You request a hearing or the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
E. ARBITRATOR’S DECISION. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of Section 8 above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If ChartWind prevails in arbitration, ChartWind will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. You will not seek, and You hereby waives all rights You may have under applicable law to recover, attorneys’ fees and expenses if You prevail in arbitration.
F. FEES. Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.
G. CHANGES. Notwithstanding the provisions of Section 11 above, if ChartWind changes this Section 13.3 after the date You first accepted this Agreement (or accepted any subsequent changes to this Agreement), You may reject any such change by providing ChartWind written notice of such rejection by mail or hand delivery to: ChartWind, 400 N. Woodlawn Suite 203 Wichita Kansas 67208, or by email from the email address associated with Your use of the ChartWind Service to [email protected], within thirty (30) days after the date such change became effective, as indicated by the “Last Update” date herein. In order to be effective, the notice must include Your full name and clearly indicate Your intent to reject changes to this Section 13.3. By rejecting changes, You are agreeing that You will arbitrate any Dispute between You and ChartWind in accordance with the provisions of this Section 13.3 as of the date You first accepted this Agreement (or accepted any subsequent changes to this Agreement).
By checking “I ACCEPT”, You expressly acknowledge and agree that You have freely and voluntarily read the terms and conditions of this Agreement and expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and further acknowledge that You are of lawful age, legally competent, and fully accept to be bound under the terms and conditions of this Agreement with ChartWind.
THIS VERSION IS EFFECTIVE AND UPDATED AS OF: February11, 2016
I ACCEPT
