MODERNHAWK, LLC.
Software End User License Agreement
Last Updated: February 21, 2024
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. This End User License Agreement (this “Agreement”), governs your use of the web-based Aviation Maintenance Management and Tracking Software, including the associated upgrades, patches, updates and related services (the “Software”), currently provided or which will be provided by ModernHawk, LLC (“Licensor”) to you (“Licensee”).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BEFORE USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; (II) YOU ARE IN COMPLIANCE WITH ALL FAA, DOT, AND ALL OTHER APPLICABLE RULES AND REGULATIONS; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT USE THE SOFTWARE.
1. License Grant and Scope. This Agreement sets forth the terms and conditions of Licensee’s use of the web-based Aviation Maintenance Management and Tracking Software, including the associated upgrades, patches, updates and related services (the “Software”), currently provided or which will be provided by Licensor Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee, and any of Licensees employees (“Authorized Users”) a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Software, solely as set forth in this Section 1 and subject to all conditions and limitations set forth in Section 2 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
(a) Use the Software on the computers, tables, or mobile devices owned, leased, or controlled by, Licensee or Licensee’s employees.
(b) Make a reasonable number of copies of the information submitted by Licensee into the Software solely for archival and backup purposes, and as required by the FAA.
(c) Use and run the Software in accordance with this Agreement solely for Licensee’s personal or internal business purposes.
2. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly, and a shall not assist any third party to:
(a) use the Software beyond the scope of the license granted under Section 1;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof;
(f) copy the Software, in whole or in part;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis;
(h) use the Software in violation of any law, regulation, or rule; or
(i) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
Notwithstanding the foregoing, nothing in this Agreement shall prohibit Licensee from providing information submitted by Licensee or its Authorized User into the Software, including maintenance, inspection, flight data, and other records associated with the Licensee’s aircraft and related support equipment, to any person or governmental agency that requires such information.
3. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software, including but not limited to, all information submitted into the Software, by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
4. Maintenance and Support.
(a) The license granted hereunder entitles Licensee to basic software maintenance and support services.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, subject to all terms and conditions of this Agreement. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
5. Collection and Use of Information.
(a) Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is accessed and used.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
6. Intellectual Property Rights. Licensee acknowledges and agrees that the Software, including all associated intellectual property rights, is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. This includes preventing any use of the Software that would facilitate the development, enhancement, or creation of competing products or services by any third party, including but not limited to reverse engineering, decompiling, or disassembling of the Software. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
7. Pricing and Payment. All License Fees are payable in advance and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full. License Fees are as follows:
(a) Single-Engine Aircraft: $1,250.00 per year.
(b) Twin-Engine Aircraft: $2,250.00 per year.
(c) Black Hawk Helicopter: $3,000.00 per year.
(d) Aircraft Shell: $500.00 per year.
(e) Vehicle Tracking: $500.00 per year.
(f) Pilot Tracking: $500.00 per year.
(g) Aircraft Data Migration: $2,500.00 per airframe (can vary based on complexity)
Licensee expressly understands the License Fees for Software are per airframe and based on the number and type of assets, and that some Licensee accounts may require a one-time setup fee of $2,500.00. Licensee also understands that the License Fees set forth in this Agreement may increase from time to time, and that Licensor will use reasonable efforts to inform Licensee of any scheduled increases in the Licensee Fee. Further, upon expiration of the Licensee granted hereunder, and at Licensee’s written request, Licensor may allow access to Licensee to retrieve, print and save all information submitted by Licensee or Authorized Users into the Software for a one-time fee of $500.00.
(h) ___________________ shall be established as the Licensee’s base month, upon which the pricing for the Software shall be calculated.
(i) Should the Licensee wish to add additional aircraft or services outside of the base month, the pricing of such shall be paid at the then current prices established and shall be prorated based on the remaining months of the billing year.
(j) Invoices that have not been paid by the last day of the Licensee’s base month shall be considered delinquent. Delinquent invoices will be charged a late fee of 1.5% per month compounded monthly for an effective rate of 18% per annum.
8. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing all use of the Software and discontinuing the payment of the License Fees.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for five (5) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective upon thirty (30) days’ written notice to Licensee, for any reason or no reason.
(e) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(f) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using the Software. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
9. Warranty Disclaimer.
(a) THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE LICENSOR AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND MEMBERS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT LICENSEE HAS PAID TO LICENSOR FOR THE SOFTWARE IN THE LAST TWELVE MONTHS OUT OF WHICH LIABILITY AROSE.
(c) THE LIMITATIONS SET FORTH IN SECTION 10(a) AND SECTION 10(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
12. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
13. Licensee Representations and Warranties. Licensee represents and warrants to Licensor:
(a) Prior Use Governed by EULA. Licensee acknowledges that any use of the Software prior to the Effective Date of this Agreement was governed by the End User License Agreement (EULA) posted on the Licensor’s website. Licensee agrees that, from the Effective Date, this Agreement supersedes any such prior EULA, with its terms exclusively governing the Licensee’s use of the Software after the Effective Date.
(b) Compliance and Authority. Licensee is at least 18 years of age, is in full compliance with all applicable Federal Aviation Administration, Department of Transportation, and other relevant rules and regulations, and if Licensee is a corporation, governmental organization, or other legal entity, it represents and warrants that the person signing this Agreement has the right, power, and authority to enter into this Agreement on behalf of the Licensee and to bind the Licensee to the terms herein.
(c) Adherence to Use Restrictions. Licensee will comply with all use restrictions set forth in Section 2 of this Agreement and will ensure that all of its employees, agents, and any other authorized users of the Software under Licensee’s control, also adhere to these restrictions. Licensee agrees to take all necessary steps to enforce such compliance within its organization and acknowledges that failure to enforce these use restrictions may be considered a breach of this Agreement. Further, Licensee represents and warrants that it will not to use the Software, or any knowledge derived from the Software, to assist any third party, including competitors of the Licensor, in developing, enhancing, or marketing products or services that are competitive with the Software. This includes, but is not limited to, sharing features, functionality, user interface designs, or any other aspects of the Software with any third parties for the purpose of developing a competing product.
14. Indemnification. Licensee agrees to defend, indemnify, and hold harmless Licensor, from and against all liabilities, costs, damages, and expenses (including settlement costs and reasonable attorneys’ fees) arising from any claims from anybody that result from or relate to Licensee’s use, reproduction, or distribution of the Software or Licensee’s breach of any representation, warranty, or obligation under this Agreement.
15. Miscellaneous.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Idaho without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Idaho in each case located in the City of Boise and County of Ada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the Licensor at 4970 S Chappel Way, Boise, ID 83709 and the Licensee at address provided by Licensee at the time of paying the License Fee or to respective parties at the addresses designated by each party from time to time in accordance with this Section.
(d) This Agreement, together with the Terms of Use located at https://modernhawk.com/terms-of-use and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16. Acknowledgement of Parties. The Parties acknowledge that they have read this Agreement, have had the opportunity to review it with an attorney of their respective choice, and have agreed to all of its terms. Under these circumstances, the Parties agree that the rule of construction that a contract be construed against the drafter shall not be applied in interpreting this Agreement, and that in the event of any ambiguity in any of the terms or conditions of this Agreement, such ambiguity shall not be construed for or against either Party on the basis that such Party did or did not author the same.