IMPORTANT-READ CAREFULLY: This is a legal agreement between you and Airpower Software Group, Inc. for aircraft data services and information (software) accompanying this agreement, which includes online computer software in a digital format, online documentation in a digital format and printed materials derived from the associated online computer software. Before you continue you must read, acknowledge and accept the terms and conditions of this End User License Agreement (EULA) that follows. If you do not accept the terms and conditions in this agreement, do not continue to access the aircraft data services and information software. GRANT OF LICENSE. Conditioned upon your adherence to all of the restrictions of use contained in this Agreement, specifically including the restrictions on making unauthorized copies of the software, Airpower Software Group, Inc. grants you a nonexclusive and limited license to use the associated software services for use in personal and/or business purposes and in accordance with the terms and conditions of this Agreement. The software is licensed, not sold, to you.
Airpower Software Group, Inc. is the Corporation from whom you are subscribing to for the software and related aircraft data services and information.
2. ACCESS AND USE. You may use the software only in the configuration and for the number User registrations when you completed your subscription registration. Airpower Software Group, Inc. may control the number and the use of the software based on your subscription. You understand and agree that we may use a third-party provider for purchase and installation of the software.
3. LICENSE TYPE; DEFINITIONS.
3.1. Subscription License. The software is licensed on a subscription basis; you are granted a non-exclusive and non-transferable license to use the software solely at AirPower Software Group Inc.’s option at the then current rate, which can also include utilizing the software for free. You agree that you must keep all registration information current throughout your use of the software. If we are unable to process any registration due to us because you failed to update such registration information, we have the right to suspend, terminate, or otherwise disable your account and access to the software. You agree that you are responsible for any chargebacks or other fees that we may incur while trying to suspend, terminate, or otherwise disable your account and access to the software.
3.2. Concurrent Access License ("CAL"). The software is licensed on a Concurrent Access basis; which means the total number of end users accessing the software at any one time may not exceed the number of licenses you have obtained. Our software licenses are assigned to a particular end user, and may not be shared among different or multiple users. While utilizing our licenses you may not access a program or system to cache or queue any information within the software unless specified in writing by us. The number of licenses per user is limited to one per registration.
3.3."User" means an individual natural person who accesses the software on any device. The number of devices is limited to the license granted to the subscriber under this agreement.
3.4."Subscriber" is the person or entity paying the subscription fee to Airpower Software Group, Inc. for use of the software.
4. OWNERSHIP. Airpower Software Group, Inc. retains all right, title and interest in and to the software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You neither own nor hereby acquire any claim or right of ownership to the software or to any related patents, copyrights, trademarks or other intellectual property. You agree to retain the software, the terms of this Agreement as well as any software benchmark or similar tests (whether performed by you, Airpower Software Group, Inc. or any third party) in confidence and prevent them from unauthorized disclosure or use except with Airpower Software Group, Inc.’s prior written consent. Airpower Software Group, Inc. reserves all rights not expressly granted to you.
5. COPYRIGHT. The software is copyrighted by Airpower Software Group, Inc. and is protected by United States copyright and patent laws and international treaty provisions. Portions of the software may include material licensed or otherwise provided by third parties, and the copyright to such material remains with the provider of that material. You may not copy, dismantle or reverse engineer the software for any purpose, and your license to use the software is conditioned upon not making any unauthorized copies of the software and fully complying with the terms of this agreement.
6. RESTRICTIONS. Except as expressly permitted by this EULA or by applicable law you may not: (a) lease, loan, resell, assign, sublicense, or otherwise distribute the software or any information derived from the software including aircraft database information included in the software which might be licensed from strategic third-party partnerships without the express written permission of Airpower Software Group, Inc.; (b) use the software to provide or operate an Application Service Provider (ASP), marketing, third party training, outsourcing services, or consulting services, or any other provision of personal or commercial use related to the software; (c) modify (even for purposes of error correction), adapt, or translate the software or create derivative works except as necessary to utilize the appropriate software menus, options and tools provided for such purposes and contained in the software; (d) in any way reverse engineer, disassemble or decompile the software or the report file format (including reverse compiling to ensure interoperability) or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (e) use the software to develop products or aircraft data services and information which is competitive with any Airpower Software Group, Inc. aircraft data services and information offerings; (f) use the software to develop aircraft data services and information that converts the report file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Airpower Software Group, Inc.; and (g) permit third party access to, or use of the software except as expressly permitted herein.
7. LIMITED WARRANTY AND REMEDY.
(a) Excluding Third Party Products, Airpower Software Group warrants to you that: (i) for your subscription period, the software will conform to the functional description set forth in its standard documentation. Airpower Software Group, Inc. does not warrant that use of the software will operate uninterrupted or error free. The aircraft database used to provide pre-loaded operating costs, specification information, and general aircraft information for single reports and within the aircraft data services and information software is licensed and derived from information from 3rd parties, including strategic partnerships, gathered from publicly available databases, manufacturers' information, and data submitted by pilots, charter operators, corporate fleets and other subscribers. Such information has not been screened by Airpower Software, Inc. for accuracy, completeness or timeliness. Use of this information is at subscriber's own risk, and Airpower Software Group, Inc. shall not be liable for any losses, claims or damages that may result from such use.
(b) Your exclusive remedy for breach of the above-stated limited warranty shall be, at Airpower Software Group, Inc.’s option, either: (i) correction or replacement of the software with product(s) which conform to the above-stated limited warranty; or (ii) return of the price paid, if any, for the software and termination of this License Agreement. Such remedy shall be provided to you by Airpower Software Group, Inc. only if you give Airpower Software Group, Inc. written notice of any breach of the above-stated limited warranty, during your Subscription period.
(c) Except for warranties stated in section 8, Airpower Software Group, Inc disclaims all other warranties, including without limitation and implied warranty (a) Merchantability, (b) fitness for a particular purpose, (c) non-infringement of third party rights, (d) hidden defects. Since some States/Countries do not allow the exclusion of any type of implied warranty the above exclusion may not apply to you. You acknowledge that in entering into this agreement, you have utilized the tools we offer on our site which include aircraft data services and information documentation, and demo videos to evaluate the associated software and that it meets your requirements.
Due to factors outside of our control, as well as certain factors within our control, such as software and hardware upgrades, features of the software and/or access to the software may be temporarily unavailable. You agree to hold us harmless for any such interruption, whether or not such interruption was planned and whether or not we notified you of any interruption.
8. LIMITATION OF LIABILITY.
In no event will Airpower Software Group, Inc, its strategic partners, distributors, suppliers, or affiliates be liable to you or any third party for any indirect, incidental, consequential or punitive damages, including without limitation any lost profits or revenues, loss or inaccuracy of any data, cost of replacing lost goods, regardless of the claim of liability including possible negligence. Even in the event of Airpower Software Group, Inc being advised of potential damages, Airpower Software Group, Inc its strategic partners, licensors, distributors, suppliers, and affiliates’ total aggregate liability to you for actual direct damages for any cause shall be limited to the subscription fees paid by you for the software. Airpower Software Group, Inc will not be held liable for third party or strategic partner products either contained in our software, if applicable. The total risk on the part of Airpower Software is the subscription fees paid under this license agreement. Since some States/Countries do not allow the exclusion of any type of limitation of warranty so the above exclusion may not apply to you. You acknowledge that in entering into this agreement, you have relied upon your own due diligence and judgement to evaluate the associated software and that it has met the suitability to meet your requirements.
9. SUPPORT SERVICES. Airpower Software Group, Inc. will not be obligated to provide you with product support for the software. Airpower Software Group, Inc. does not provide support for third party products that might be included in our software or our website.
10. TERMINATION. The software is licensed on a subscription basis for the term selected by you when you first licensed the software, and unless you have chosen to renew automatically by opting in to auto renewal or choosing to renew manually after receiving a renewal email from us on or prior to the expiration of the then current term of the subscription license, the applicable subscription license shall terminate and the software will cease to function. Notwithstanding the foregoing, Airpower Software Group, Inc. may immediately terminate this licensing agreement and any licenses and services provided hereunder if: (i) Airpower Software Group, Inc. notifies you in writing of a breach and such breach is not cured within ten (10) days of the notification date; or (ii) you make an assignment for the benefit of creditors or proceedings are commenced by or for you under any bankruptcy, insolvency, or debtor's relief law. Termination shall not relieve you from your obligation to pay fees that remain unpaid and shall not limit either party from pursuing other available remedies. Upon termination by Airpower Software Group, Inc. of this agreement or any part thereof, Airpower Software Group, Inc. shall have no obligation to refund to you any fees paid by you, and you agree to waive, in perpetuity and unconditionally, any and all claims for refunds. The following Sections survive termination of this Agreement: 8, 9, 11, 14, and 16.
11. INDEMNITY
You agree that you will indemnify and hold us, our subsidiaries, affiliates, licensors, third-party content providers, strategic partners, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) harmless from any breach of this agreement by you and for any of your conduct via the software should we be obligated to defend any claims arising from such conduct. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys' fees of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the software.
We will notify you by electronic mail (to the address provided by you) of any such claim or suit requiring your indemnification, and we will cooperate fully (at your expense) in the defense of such claim or suit. We also reserve the right to participate in the defense of such claim or defense at our own expense, and choose our own legal counsel, but we are not obligated to do so.
12. AUDIT. During the term of this agreement Airpower Software Group, Inc. may audit, upon reasonable notice to you and at Airpower Software Group, Inc.’s expense, your books and records to determine your compliance with this agreement. In the event any such audit reveals that you have underpaid Airpower Software Group, Inc. in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as Airpower Software Group, Inc. may have, you shall pay or reimburse to Airpower Software Group, Inc. the cost of the audit including any attorney’s fees.
13. GENERAL. Except as otherwise preempted by United States federal law, this agreement is governed by the laws of the State of Florida, United States, without reference to conflict of laws' provisions and the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. You specifically consent to exclusive personal jurisdiction and venue in Orange County, Florida’s state and federal courts in connection with any dispute between us arising out of this agreement. You agree that this choice of venue and forum is mandatory and not permissive, and that the only location for any litigation permitted under this agreement will be Orange County, Florida, and all parties hereto waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to jurisdiction or venue in Orange County, Florida. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature. This Agreement constitutes the entire agreement between you and Airpower Software Group, Inc., and supersedes any prior agreement, whether written or oral, relating to the subject matter of this agreement. This agreement may not be modified except by an instrument in writing duly signed by an authorized representative of each of the parties. If you are acquiring the software on behalf of an entity, you represent and warrant that you have the legal capacity to bind such entity to this agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this agreement. Should you have questions concerning this License Agreement, please contact: Airpower Software Group, Inc., 850 Teague Trial, Suite 1142, Lady Lake, FL, 32158 USA. Any and all notice required under this agreement shall be made to that address as well.
14. EXPORT CONTROLS. The use of this software is subject to the U.S. Export Administration Regulations. You agree to the following: (a) you are not a citizen, national or resident of, and are not under the control of, the government of Iran, North Korea, Syria, Sudan nor any other country to which the United States has prohibited export; (b) you will not export or re-export the software, directly or indirectly, neither to the above mentioned countries nor to citizens, nationals or residents of those countries; (c) you are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders; (d) you will not export or re-export the Software, directly, or indirectly, to persons on the above mentioned lists; and (e) you will not use the software for, and will not allow the software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, planning for any type of terrorist operation or biological weapons of mass destruction.
15. U.S. GOVERNMENT RESTRICTED RIGHTS. The software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the software with only those rights set forth herein. Manufacturer is, Airpower Software Group, Inc., 850 Teague Trial, Suite 1142, Lady Lake, FL, 32158 USA.
Airpower Software Group, Inc. 2016