Parties. The undersigned Subscriber (“Subscriber”) and Garmin Services, Inc. (“Garmin”), are the parties to the Agreement (as defined in Article 2 below).
Agreement. The information that Subscriber provides on the Application for FAA Data Comm Services and these terms and conditions along with all Annexes attached to such terms and conditions (collectively “Terms and Conditions”) and all terms contained in the Confirmation (as defined in Article 4 below) constitute the Agreement.
Other Definitions.
Charges shall mean Service Charges, as well as additional charges that are applicable pursuant to Article 6 below.
Network shall mean the SITA Air Traffic Services (ATS) AIRCOM system as used by the FAA to route Data Comm traffic between ATC Data Comm equipped facilities and the Product.
Product shall mean LRUs and any other Garmin products that require Services to be operational, such as, but not limited to, the GDR66 or subsequent VHF data link radios.
Services shall mean the transactions with ATC provided as part of the FAA’s Data Comm Services.
Service Charges shall mean the charges to Subscriber as provided separately for reference.
Service Providers shall mean third party suppliers of Garmin that are involved with the provision of Services including but not limited to those provided through the Network.
Responsibilities of the Parties. Provided that Garmin has issued Subscriber a confirmation for the Services (“Confirmation”), Garmin will supply Subscriber with instructions and other information, as Garmin deems appropriate, in order to implement the Services.
In return for receiving the Services, Subscriber shall comply with the financial obligations as set forth in Articles 5, 6 and 7, provide updated billing addresses and contact information to Garmin, as well as other obligations set forth in this Agreement. The Services and information received under this Agreement, regardless of form, shall not be sold, leased, licensed, commercially exploited or otherwise transferred by Subscriber to another entity or party. All Charges and other amounts due for Services provided under this Agreement, whether authorized or not, will be the responsibility of Subscriber. If Subscriber fails to fulfill these obligations, Garmin reserves the right to discontinue the Services for Subscriber and/or immediately terminate this Agreement.
Service Charges. Service Charges billed to Subscriber for Services are set forth on the FAA Data Comm Service page on www.fltplan.com. All amounts that Subscriber owes Garmin under this Agreement shall be due and payable according to the terms of this Agreement. Subscriber is prohibited from and shall not set off such amounts or any portion thereof, whether or not liquidated, against sums which Subscriber asserts are due it, its parent affiliates, subsidiaries or other divisions or units under other transactions with Garmin, its parents, affiliates, subsidiaries or other divisions or units. Charges are exclusive of taxes, duties and other governmental fees and surcharges, including but not limited to federal, state, municipal, excise, sales or use taxes or import duties upon the sale and furnishing of the Services. All such present or future applicable taxes, fees, surcharges or duties on the sale of Services due hereunder shall be paid by the Subscriber except for those related to the income of Garmin. Accordingly, Garmin reserves the unilateral right to revise the Charges after the execution of this Agreement between the parties to include any and all taxes, fees, surcharges or duties that may become due hereunder and Garmin may invoice Subscriber for said additional amounts.
Other Charges. If Subscriber requires engineering or systems integration in connection with the Services, Garmin may, at its sole discretion, provide such engineering or systems integration assistance to Subscriber on a time and materials basis as mutually agreed upon in writing by the parties.
Invoices and Payments. All Charges shall be invoiced to Subscriber in US Dollars and shall be paid in US Dollars. Charges will be invoiced to Subscriber in advance on a yearly basis. Subscriber shall provide Garmin at all times a valid credit card and the Charges will be billed to that credit card when the invoice is issued. In the event payments are not made in a timely manner and/or a valid credit is not on file for Subscriber, Garmin may in its sole discretion and at its sole election, in addition to all other remedies provided at law and in equity, do any of the following without prior notice: (1) declare Subscriber’s performance in breach and terminate this Agreement for default; or (2) either suspend or discontinue the provision of Services until delinquent payments are made.
Subscriber must notify Garmin within 10 business days of a change in Subscriber’s billing address and/or contact information; failure to do so does not relieve Subscriber’s obligation to pay all Charges due.
All communications related to Subscriber’s annual billing statement, credit card and payments should be directed by Subscriber to:
Term and Termination of Service. The initial term of this Agreement shall be one (1) year from the date of the Confirmation. After the initial term, either party may terminate the Services upon written notice; provided, however, that no refunds will be given for cancellations by Subscriber of prepaid Services, or for termination of Services as a result of breach of this Agreement by Subscriber. After the initial term of this Agreement, this Agreement will automatically renew for successive extension terms of one (1) year unless either party provides written notice of discontinuance to the other party at least thirty (30) days prior to the expiration of the then-current term of this Agreement. Subscriber will be responsible for payment of all Charges incurred for the Services up until the date of termination. Such obligation shall survive any termination or expiration of this Agreement.
Garmin shall be permitted to immediately discontinue the Services and terminate the Agreement upon the occurrence of any of the following, as determined by Garmin in its sole discretion:
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY BY REASON OF THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (i) LOSS OF PROSPECTIVE PROFITS; (ii) GOODWILL OR LOSS THEREOF; OR (iii) EXPENDITURES OR INVESTMENTS MADE IN RELIANCE ON THE EXISTENCE OF THIS AGREEMENT.
The provisions of Articles 7, 8, 9, 13, 14, 15, 16, 19(b) and 19(c) shall survive any such termination and shall bind the parties, their successors, their permitted assigns, and their legal representatives.
Protection of Information. In order to provide the Services, Information will be communicated from Subscriber’s Application to the Network. Subscriber provides permission to Garmin in order for Garmin to forward the aircraft registration data to the Network. Garmin agrees to take reasonable security measures to protect the Information, and unless otherwise as permitted within this Agreement, agrees to not disclose this Information to any other third party except as required to initiate, maintain or terminate the Services.
For the purposes of this Agreement, this Agreement and its content, including but not limited to the Terms and Conditions, and pricing schedules, shall be deemed to be confidential information and shall not be disclosed by either party to any third party, without the prior written permission of both parties. Subscriber and Garmin hereby agree to protect any confidential information disclosed by one party to the other party related to the Services with reasonable care, and agree not to disclose such information to any third party except as required to initiate, maintain, or terminate the Services.
Information shall not be deemed confidential and is excluded from the protection as confidential information if the receiving party can conclusively establish:
Excusable Delay. Garmin shall be excused from any failure or delays in delivery and performance of the Services as well as other obligations under this Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of Garmin, including but not limited to, government embargoes, blockades, seizure or frees of assets, delays or refusals to grant an export license or the suspension or revocations thereof, or any other acts of any Government, fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots, strife, insurrection, civil disobedience, war, terrorism, material shortages or delays in deliveries to Garmin by third parties and/or Service Providers. If the excusable delay circumstances extend for six months, either party may, at its option, terminate this Agreement without penalty or liability and without being deemed in default or in breach thereof.
Sale or Transfer of Aircraft or Product. In the event of sale or transfer of an aircraft or Product which utilizes the Services, Subscriber agrees to notify Garmin with 90 days prior written notice of the transaction and is responsible for all Charges incurred prior to Garmin’s receipt of such written notification of termination. Subscriber shall be responsible for all Charges until the Services are terminated.
Changes and Enhancements. Garmin, in its sole discretion, reserves the right to add to, modify, delete or otherwise change the Services without notice and or consent of Subscriber.
Service Provider Liability. Subscriber acknowledges that Garmin may obtain elements of the Services from Service Providers pursuant to agreements that may contain limitations or disclaimers of liability on behalf of the Service Providers, and further understands that such conditions of service may change from time to time. Subscriber agrees to accept and be subject to such limitations and/or disclaimers and/or limitations of liability, and to pass these limitations and/or disclaimers on to its employees, sub-subscribers, passengers and others. Garmin shall not be responsible or liable for a failure to inform Subscriber of any specific limitation or liability or disclaimer, but will, upon Subscriber’s written request, use commercially reasonable efforts to inform Subscriber of any such limitations or disclaimers then in force. Subscriber agrees and understands that it has no direct contract with or recourse against Service Providers.
Disclaimer of Warranties
THE PARTIES AGREE THAT THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND; THAT THEY CONTAIN INFORMATION FURNISHED BY OTHERS WHO ARE NOT UNDER THE CONTROL OF GARMIN; AND THAT THEY ARE ACCORDINGLY FURNISHED WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
NEITHER GARMIN NOR ITS SERVICE PROVIDERS ASSUME ANY RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, SUITABILITY OR TIMELINESS OF ANY AND ALL AIR-GROUND/GROUND-AIRGROUND-GROUND COMMUNICATIONS OR CONTENT, FROM WHATEVER SOURCE. RESPONSIBILITY FOR USING OR RELYING UPON SAME LIES EXCLUSIVELY WITH THE SUBSCRIBER.
EXCEPT AS HEREINAFTER PROVIDED, GARMIN AND ITS SERVICE PROVIDERS SHALL NOT BE SUBJECT TO DIRECT OR INDIRECT LIABILITY FOR ANY DAMAGES WHICH THE SUBSCRIBER MAY SUFFER AS A RESULT OF ANY FAILURE OR DELAY IN RENDERING THE SERVICES.
IN THE EVENT THAT INFORMATION FURNISHED BY THE SUBSCRIBER HEREUNDER IS LOST, DESTROYED OR DAMAGED DUE TO THE NEGLIGENCE OF GARMIN OR ITS SERVICE PROVIDERS, THE SUBSCRIBER’S SOLE REMEDY SHALL BE THE REPAIR OR REPLACEMENT BY GARMIN OF SUCH LOST, DESTROYED OR DAMAGED INFORMATION, PROVIDED, HOWEVER, THAT SUCH REPAIR OR RESTORATION CAN REASONABLY BE PERFORMED BY GARMIN AND, PROVIDED, FURTHER, THAT SUBSCRIBER FURNISHES GARMIN WITH ALL SOURCE DATA, IN MACHINE-READABLE FORM, NECESSARY FOR SUCH REPAIR OR RESTORATION.
IN NO EVENT SHALL GARMIN OR ITS SERVICE PROVIDERS BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS REVENUES, OR FAILURE TO REALIZE EXPECTED SAVINGS, FOR ANY CAUSES OF ACTION RELATING TO A BREACH OF THIS AGREEMENT.
Indemnification. Subscriber hereby agrees to indemnify and hold Garmin and its affiliated companies, the Service Providers and their respective employees, directors, officers and agents harmless from and against any and all claims, demands, liabilities, losses, costs, damages and expenses of any nature whatsoever (including, without limitation reasonable attorneys’ fees and expenses) claimed from or asserted against Garmin as a result of or in connection with any loss or damage to property or injury or death of any person whomsoever consequent upon or arising from or out of (a) a breach of the terms of this Agreement by Subscriber, its employees, passengers and others, or (b) the misuse, illegal use or fraudulent use of the Services by Subscriber; provided, however, that Subscriber shall have no indemnification obligations for losses, damages or expenses caused by the negligence or intentional acts or omissions of Garmin, or any of its directors, officers, employees or agents.
Notices. All notices or questions regarding the Services and this Agreement, including Subscriber notification regarding change of ownership, will be in the English language and will be by facsimile, email, or postal mail to the contact points below. The contact information below may be amended through similar notice as necessary.
| Garmin Services, Inc. | Subscriber: |
| Attn: Billing Department | To the Contact Information set forth in the Application |
| 2 DeLorme Drive | |
| Yarmouth, ME 04096 | |
| Telephone: 1-800-511-2459 | |
| Email: [email protected] |
Export. Subscriber shall be responsible for compliance with the export control laws and regulations of the United States of America (“U.S.A.”) and any other applicable country or government, and when required by such laws and regulations shall obtain validated export and re-export licenses required for the Services and information delivered under this Agreement. Garmin shall not be liable to Subscriber for any failure to provide Services and information as a result of any following U.S.A. or other applicable country or governmental actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any subsequent interpretation of applicable export laws and regulations, after the date of this Agreement, that limits or has a material adverse effect on the cost of Garmin’s performance on this Agreement.
Miscellaneous.
(a) Except as otherwise provided in this Agreement, no modification or addition to this Agreement shall be effective unless agreed to in writing and signed by an authorized representative of Subscriber and Garmin. Should any provision of this Agreement be declared illegal, invalid or unenforceable, for any reason, it shall be severed from this Agreement without affecting the legality or enforceability of the remainder. This Agreement binds and inures to the benefit of Garmin, its successors and assigns. Subscriber may not assign, either voluntarily or by operation of law, transfer or otherwise dispose of this Agreement or any interest herein without Garmin’s prior written consent.
(b) This Agreement will be governed by, and construed in accordance with, the laws of the State of Kansas, U.S.A., exclusive of any choice of law provisions. Garmin and Subscriber expressly agree to exclude from this Agreement the Uniform Commercial Code as adopted in the State of Kansas and the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successors thereto. Garmin's remedies set forth herein are not exclusive and are in addition to any other remedies available, none of which shall be deemed waived by virtue of Garmin's exercise of any other remedy.
(c) The parties shall attempt to amicably settle any dispute arising in connection with this Agreement. If the parties are unable to reach an amicable settlement, then Subscriber submits to the jurisdiction of the State of Kansas and agrees that, for the purposes of any action brought by Subscriber under this Agreement, the exclusive venue for any claims shall be the District Court of Johnson County, Kansas. Garmin may, pursuant hereto, bring any action hereunder or any claim for money due in the aforementioned District Court of Johnson County, Kansas, or, at its sole option, may bring any action in any other court of competent jurisdiction. If Garmin should file the action other than in the District Court of Johnson County, Kansas, the terms hereof shall not prohibit Subscriber from asserting any compulsory counterclaim in such jurisdiction outside of Kansas. If either party takes legal action to enforce any right under this Agreement, the prevailing party shall be entitled to recover all reasonable costs, including attorney fees.