TERMS OF SERVICE
Last Updated: February 22, 2021
READ THIS AGREEMENT CAREFULLY BEFORE UTILIZING THIS SOFTWARE. BY CLICKING THE "I accept the terms or service" BUTTON AND USING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. YOU AGREE THAT USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
YOU MAY NOT USE THIS SOFTWARE IF THE USE OF THE SOFTWARE IS NOT LEGAL IN YOUR COUNTRY, STATE OR JURISDICTION. FURTHER, YOU MAY NOT USE THIS SOFTWARE FOR ANY PURPOSE THAT IS ILLEGAL IN YOUR COUNTRY, STATE OR JURISDICTION. SHOULD YOU USE THIS SOFTWARE FOR ANY ILLEGAL PURPOSE, YOU AGREE TO INDEMNIFY AND HOLD GMSTEK, LLC AND ITS SUPPLIERS HARMLESS AND DEFEND AND INDEMINIFY GMSTEK AND ITS SUPPLIERS FOR ANY THREAT, LOSS OR DAMAGE, INCLUDING ATTORNEYS' FEES, WHICH ARISE FROM YOUR ILLEGAL USE OF THE SOFTWARE. IT IS WHOLLY YOUR RESPONSIBILITY TO USE THIS SOFTWARE IN ACCORDANCE WITH THE LAWS OF YOUR JURISDICTION, OR REFRAIN FROM USING THIS SOFTWARE, AS THE CASE MAY BE.
THIS AGREEMENT by and between GMSTEK, LLC and its suppliers (collectively “GMSTEK”) with its principal place of business at 18001 Old Cutler Road, Palmetto Beach, FL 33137, as Licensor, and Licensee is made effective as of the activation date hereto (hereinafter the “Effective Date”).
WHEREAS, Licensee wishes to deploy the X-1TRX™ Flight Tracking System (“X-TRX” or “The Software), a cloud-based aircraft tracking and data analysis system that provides real time, mission critical information.; and
WHEREAS, GMSTEK wishes to provide Licensee with a non-exclusive license to utilize the X-1TRX Flight Tracking System;
NOW THEREFORE, the parties hereby agree:
I. X-1TRX License
The Software is not sold to the licensee. Rather, it is licensed on a non-exclusive basis solely for use by the licensee, and the licensee alone, under the terms of this Agreement and for the period you purchased it. GMSTEK (and, to the extent applicable, its licensors), retains all title to and ownership of the Software and reserves all rights not expressly granted to you hereby. The licensee may not transfer this license to anyone.
II. X-1TRX Evaluation & Initial Trial Periods
Licensee can sign up for an “Initial Trial” evaluation version of X-1TRX, and have not purchased a license to the Software, GMSTEK grants you a 30-day non-exclusive license to use the Software free of charge for the purpose of evaluating whether you wish to purchase an ongoing license for the Software. WARNING: Evaluation versions of the Software may become non-functional thirty (30) days following activation. Evaluation versions of X-1TRX may also limit the availability or use of some features. GMSTEK disclaims all liability and responsibility for any loss of data or other information which may occur as a result thereof.
III. X-1TRX Beta Releases
From time-to-time GMSTEK may allow use of a Beta (Early Release) Version, of which the terms of this Section shall apply. Your license to use the Software expires 30 days after activation (or such other period as indicated by the Software or Trial Agreement) and the Software may cease to function. The Software you are receiving may contain more or less features than the production release of X-1TRX that GMSTEK intends to distribute. While GMSTEK intends to distribute a production release of the Software, GMSTEK reserves the right at any time not to release specific builds to production, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability, or other characteristics of the production release. You agree that the Beta Release Versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
IV. Miscellaneous Terms
A. Term of agreement (“Term”): The license granted to the licensee is effective until terminated. Licensee may terminate at any time by providing written communication to GMSTEK. The license will also terminate automatically without any notice from GMSTEK if you fail to comply with any term or condition of this Agreement. Upon termination, GMSTEK may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of GMSTEK will continue in force after termination.
B. Software Updates: This license does not grant you any right to any enhancements or updates to the Software, nor any support services yet, during the term, GMSTEK may provide maintenance and enhancement updates to X-1TRX that will be included in the Monthly SaaS Fees at no additional charge. You agree that GMSTEK may regularly update function and features and install them as part of your Software.
C. New Modules: GMSTEK may periodically introduce new features and modules for X-1TRX. Licensee will have the option of a thirty (30) day free trial of any new paid feature or module offered by GMSTEK after the completion of any initial trial or evaluation periods.
D. Trademark License: No license is granted to you in this agreement either expressly or implicitly, to use any trademark, service mark, names, or logos of GMSTEK. GMSTEK owns all customer data collected through the registration process.
E. Confidentiality & Limitations of Permitted Use: The technical details of X-1TRX that Licensee may learn during its use and Licensee’s interactions with GMSTEK are confidential and proprietary to GMSTEK and have been developed at great cost and expense. Licensee agrees not to publish nor disclose to any other person or entity the pricing and other terms of this Agreement.
i. Except to the extent expressly permitted by this Agreement or by the laws of the jurisdiction where you are located, you may not decompile, disassemble, or otherwise reverse engineer the software, or engage in any other activities to obtain underlying information that is not visible to the user in connection with normal use of the Software.
ii. Licensee agrees to not transmit the Software or display the Software's object code on any computer screen or to make any hardcopy memory dumps of the Software's object code for any purpose. If you believe you require information related to the interoperability of the Software with other programs, you shall not decompile or disassemble the Software to obtain such information, and you agree to request such information from GMSTEK at email@example.com. Upon receiving such a request, GMSTEK shall determine whether you require such information for a legitimate purpose and, if so, GMSTEK will provide such information to you within a reasonable time and on reasonable conditions.
iii. In any event that software, access to the software or its code is believed compromised by the Licensee or other parties the Licensee will notify GMSTEK within 48 hours of any information or such activities, and the results thereof will constitute the confidential information of GMSTEK that may be used only in connection with the Software.
iv. Licensee acknowledges that X-1TRX has the capability of displaying Blocked Tail Numbers solely to help the licensee manage aircraft arrival and departures in the course of its normal business and the licensee agrees that at no time will it display or otherwise share information on blocked tail numbers to the general public. Licensee acknowledges that a failure to comply with this limitation can result in the termination of this agreement.
v. Licensee shall have the right to utilize the information provided by AMSTAT in the ordinary course of using the X-1TRX integration with AMSTAT. However, licensee acknowledges that the information provided by AMSTAT and the sources of that information are confidential, proprietary and trade secrets of AMSTAT, are protected by copyright and are for the use of customer only. The information contained therein may not be sold or otherwise transferred by the licensee to any third party. Licensee shall make no copies of any kind (including handwritten, taped, or visual copies) of the information contained in the database or substantial portions thereof, except as required to carry out the ordinary course of Licensee’s business. In addition, Licensee shall not divulge any of the information furnished to them to any person or entity whatsoever, other than to those full-time employees of Licensee whose principal offices are at the premises to which the information is transmitted to and who are required to review the information as part of their regular duties.
vi. Licensee may not merge any portion of the Software into, or integrate any portion of the Software with, any other program, except to the extent expressly permitted by the laws of the jurisdiction where you are located. Any portion of the Software merged into or integrated with another program, if any, will continue to be subject to the terms and conditions of this Agreement, and you must reproduce on the merged or integrated portion all copyright and other proprietary rights notices included in the originals of the Software
F. Payments to GMSTEK: The Monthly SaaS Fees will be paid by pre-authorized ACH Direct Debit or credit card on the first business day of each month for that month. If any Direct Debit or credit card charge is refused, there will be a non-refundable $25 charge. Licensee will be notified on the same day that GMSTEK learns of the refusal. GMSTEK will make another attempt to make the charge three business days after such notification; and if the charge is refused again, there will be another $25 charge; and GMSTEK shall have the right to immediately suspend service until the account is brought up to date. It is expressly authorized by Licensee that GMSTEK may do so, and GMSTEK shall have no liability for any actual, special, indirect, punitive, or consequential damages of any kind whatsoever, including but not limited to lost profits, that Licensee may incur as a result of the loss of service for failure to make timely payment. Any payments made after more than fifteen (15) days after the due date are subject to a late fee of ten percent (10%) of the invoice total. After the second occurrence of a suspension, GMSTEK shall have the right to require a three (3) month deposit before resuming service.
G. Limitation of Liability: GMSTEK shall have no liability, express or implied, for actual, special, indirect, punitive, or consequential damages of any kind whatsoever, including but not limited to lost profits, that Licensee experiences as a result of data loss, data corruption, or during the use of X-1TRX, where such liability would exceed one month’s Monthly Recurring Charge for the use of the system. Licensee agrees to hold GMSTEK harmless and not liable for any such damages, harm, claims, fees, taxes, or other charges it may incur, and agrees that Licensee will back-up its data and be solely responsible for failing to do so in advance of the data port and use of X-1TRX. GMSTEK is not responsible for and shall have no liability for service interruptions caused by power failures, storms, any Force Majeure event (including but not limited to weather phenomenon, tornados, hurricanes, typhoons, fires, floods, windstorms, earthquakes, mudslides, other natural disasters, lightning, electrical outages, solar storms, warfare, strikes, acts of terrorism, acts of violence, and other events outside of the control of GMSTEK.
H. System Updates and Force Majeure: X-1TRX updates and maintenance are performed during hours of least usage, generally in the 0000 to 0400 Eastern Standard Time range of time. Except in emergency situations, at least three (3) days’ notice will be provided to Licensee with regard to scheduled upgrades and maintenance. After the occurrence of a “Force Majeure” event, GMSTEK will devote all resources reasonably available to returning X-1TRX to full operation as soon as possible.
I. Lawful Use: Licensee agrees that they shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which you use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. You will not misuse or otherwise use the software in a malicious way that causes injury or disruption to the websites posted to.
K. Limited Warranty: GMSTEK does not warrant that the functions contained in the Software will meet your requirements or that the operation of the Software will be uninterrupted, error-free or free from malicious code. For purposes of this paragraph, "malicious code" means any program code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the computer, computer system, or computer network, including viruses, Trojan horses, droppers, worms, logic bombs, and the like.
i. EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT OR BY THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED THE SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
L. Choice of Law: This Agreement will be construed, interpreted, and applied in accordance with the laws of the State of Florida. If any disputes arise, they shall be resolved through binding arbitration in conformance with the rules of the Upchurch Watson White & Max in Miami Florida, which shall be the sole and exclusive venue for any such arbitration. Licensee agrees to, consents, and waives objection to the personal jurisdiction of the Courts of the State of Florida for the purpose of enforcing this Agreement and any arbitrable award. The parties shall elect expedited process, to the extent available. The decision of the arbitrator will be final and not be subject to appeal. The prevailing party shall be entitled to recover its attorney fees and costs in all arbitrable and judicial proceedings arising out of, under, or in connection with this Agreement.
M. Sole Agreement: This Agreement is the only agreement between the parties and supersedes any oral or written representation or promises made which are not expressly contained herein. This Agreement may only be modified in a writing signed by Licensee and GMSTEK.
Contact information for notices:
18001 Old Cutler Road, Suite 472
Palmetto Bay, FL 33157
Attn: X-1TRX TOS