ACCOUNT REGISTRATION
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TERMS AND CONDITIONS AGREEMENT
Access to the ACSS and L3 Aviation Products technical publications library requires agreement to the following conditions before a password can be assigned and access to the library is permitted.
Where applicable, customers shall be current on all subscription/service/license fees owed.
Users are not permitted to share account information / log on credentials to allow non-authorized users access to the website
PROPRIETARY INFORMATIONThe documents and the information disclosed on this web site are proprietary data of ACSS and L3 Aviation Products.
Neither the documents nor the information on this web site shall be reproduced, used or disclosed to others without the written authorization of ACSS or L3 Aviation Products.
FREEDOM OF INFORMATION ACT (5 USC 552) AND DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY (18 USC 1905)The documents and information on this web site are being furnished in confidence by ACSS and L3 Aviation Products. The information disclosed herein falls within Exemption (b) (4) of 5 USC 552 and the prohibitions of 18 USC 1905.
EXPORTThis information falls under the jurisdiction of the U.S. Department of Commerce Export Administration Regulations (EAR) Part 734.7-11 and may be released with export restrictions. No retransfer of Export controlled information conflicting with U.S. Export Law is authorized.
END USER SOFTWARE LICENSE AGREEMENT (EUSLA)If your visit to our web site includes the download of software, then by action of the software download you are representing you have read the applicable EUSLA and agree to the terms of use:
ACSS END USER SOFTWARE LICENSE AGREEMENT (EUSLA)
Aviation Communication & Surveillance Systems, LLC
END USER SOFTWARE LICENSE AGREEMENT ("EUSLA")
NOTICE – READ BEFORE USING ANY SOFTWARE RELEASED BY L3 AVIATION PRODUCTS
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS END USER SOFTWARE LICENSE AGREEMENT BEFORE USING ANY SOFTWARE RELEASED BY AVIATION COMMUNICATION & SURVEILLANCE SYSTEMS, LLC ("ACSS"). IF YOU DO NOT AGREE WITH THESE EUSLA TERMS AND CONDITIONS, DO NOT ACCESS ACSS SOFTWARE AND PROMPTLY RETURN THE ACSS SOFTWARE IN YOUR POSSESSION TO ACSS OR TO THE COMPANY OR INDIVIDUAL WHO PROVIDED THE SOFTWARE TO YOU. USING ACSS SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE EUSLA TERMS AND CONDITIONS.
1. SCOPE
1.1 This EUSLA is an agreement between L3 Aviation Products ("ACSS") and you, which sets forth the terms and conditions under which ACSS licenses the use of its software for the purpose defined hereinafter. Such terms and conditions apply to any ACSS Software in your possession, the media on which you received it and any authorized copies. Using ACSS Software and the media on which you received it, which is licensed to you and not sold to you, indicates your acceptance of these terms and conditions. You may use ACSS Software only as expressly permitted under this EUSLA. If you do not accept these EUSLA terms and conditions do not use the ACSS Software.
2. LICENSE
2.1 The license to use ACSS Software is a worldwide, revocable and non-exclusive license. Notwithstanding the provisions of Section 3 hereinafter, such license is non-transferable.
3. TRANSFER
3.1 You may not transfer the license to use ACSS Software to any third party unless you sell the aircraft equipped with ACSS hardware embedding ACSS Software. In such a case you are authorized to transfer the license to use ACSS Software, as embedded in the ACSS hardware, and any ACSS Software media, which are sold as an integral part of the sold aircraft. Such authorization is contingent upon the aircraft purchaser to accept these EUSLA terms and conditions.
4. AUTHORIZED USE
4.1 ACSS Software is licensed for the sole use authorized under this EUSLA ("Authorized Use").
5. ORDER OF PRECEDENCE
5.1 If you executed software license terms as part of a prior existing agreement with ACSS ("Agreement"), which governs the ACSS Software in your possession, the terms and conditions of the Agreement shall prevail over this EUSLA.
6. INTERPRETATIONS AND DEFINITIONS
6.1 "Authorized Use" means the loading and use on ACSS hardware equipment as duly certified by FAA and other airworthiness authorities, as applicable.
6.2 "ACSS Software" means ACSS computer software products and programs, in object code, including user manuals and other related documentation and information, and any modifications, corrections, improvements, enhancements, versions, releases, upgrades, and updates thereto as well as any copies, parts, translations, alterations, or derivations thereof or therefrom.
6.3 "Hardware" means all ACSS products or systems installed on aircraft owned or leased and operated by you. Hardware includes all spare ACSS products or systems for use on your aircraft.
6.4 "Non-Operator" means a repair station or maintenance facility or equivalent facility that provides services for the Hardware.
6.5 "Use" or "Used" means storing the ACSS Software or any portion thereof, in a machine, and/or transmitting the ACSS Software and any portion thereof into a machine for processing, and/or compiling, executing, or interpreting any machine instructions contained in the ACSS Software or any portion thereof, and/or displaying the ACSS Software or any portion thereof in connection with the processing of such machine instructions.
6.6 Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings set forth in this Section 6 of this EUSLA for all purposes hereof.
6.7 Technical and trade terms not otherwise defined herein shall have the meanings assigned to them as generally accepted in the United States aerospace industry. All monetary amounts referred to by this EUSLA are United States dollars.
6.8 The following rules of construction apply to this EUSLA:
a) the singular includes the plural and the plural includes the singular;
b) "or" is not exclusive and "include" and "including" are not limiting;
c) "hereby", "herein", "hereinafter", "here below", "hereof", "hereunder", "hereto", "herewith", "the EUSLA", "this EUSLA", or any like words refer to this End User Software License Agreement;
d) a reference to a law includes any amendment(s) or modification(s) to such law and any rules or regulations issued thereunder or any law enacted in substitution or replacement therefor;
e) a reference herein to Section, Annex, Attachment, Appendix, Table or Schedule without further reference is to be the relevant Section, Annex, Attachment, Appendix, Table or Schedule of this EUSLA, and a reference to this EUSLA includes any Section, Annex, Attachment, Appendix, Table or Schedule;
f) any right may be exercised at any time and from time to time unless specified otherwise herein;
g) all obligations are continuing obligations unless specified otherwise herein;
h) a reference to a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, jointly and severally; and
i) the headings of the Sections and portion thereof are for convenience only and shall not affect the meaning or interpretation of this EUSLA.
7. RESTRICTIONS
7.1 You may not make or have made any copies of ACSS Software, user’s manuals and other related documentation. If you need a copy for back-up purposes only, ACSS will provide you with such copy.
7.2 You may not publish the software for others to copy.
7.3 You may not distribute, rent, lease, lend or sublicense all or any portion of ACSS Software.
7.4 You may not modify or prepare derivative works of ACSS Software.
7.5 You may not transmit ACSS Software over a network, by telephone, or electronically using any means.
7.6 You may not reverse engineer, decompile or disassemble ACSS Software.
8. NON-OPERATOR
8.1 Notwithstanding provisions elsewhere in this EUSLA, Non-Operators contracted to provide services on Hardware are hereby licensed i.) the Use of ACSS Software for the sole purpose of carrying out the contracted services on Hardware and ii.) the right to transfer the ACSS Software installed in the Hardware, after the contracted services have been performed, to the owner or lessor who operates the Hardware in their aircraft.
9. LIMITED SOFTWARE WARRANTY
9.1 ACSS warrants that the ACSS Software, as first delivered by ACSS, shall conform substantially to the documentation supplied with such ACSS Software, provided that the ACSS Software is installed, implemented and operated in accordance with said documentation.
9.2 ACSS further warrants that the magnetic media on which the ACSS Software is furnished is free from defects in materials and workmanship under normal use. ACSS’s sole and exclusive liability shall be to replace any such defective media or material. ACSS shall bear all handling and shipping charges with respect to said replacement.
9.3 The limited warranty referred to in Sections 9.1 and 9.2 is valid for a period of ninety (90) calendar days from the date of installation of the ACSS Software, is extended only to you, and is not transferable.
9.4 ACSS disclaims any implied warranty of merchantability or fitness for particular purpose.
10. REMEDY
10.1 You agree that as ACSS’s sole and exclusive liability and your sole and exclusive remedy, ACSS shall provide all reasonable services to correct program or documentation errors reported by you, which ACSS’s diagnosis indicates are caused by a defect in the ACSS Software as first delivered by ACSS. For the purpose of this Agreement, a program or documentation error is one which can be recreated by ACSS at ACSS’s site using the ACSS Software with the data and input supplied by you. FAILURE TO SUPPLY ACSS, IN WRITING, WITH DATA AND INPUT NECESSARY TO RECREATE ANY PROGRAM ERROR SHALL RELIEVE ACSS OF ANY OBLIGATION RELATING TO THE ERROR. ACSS’s SOLE OBLIGATION HEREUNDER SHALL BE TO PROVIDE PROGRAM AND DOCUMENTATION CORRECTIONS.
11. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
11.1 THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACSS DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES.
11.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS EUSLA, IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL ACSS BE LIABLE TO THE OTHER PARTY FOR ANY CLAIM (WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY AT LAW) FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFIT, OR BUSINESS INTERRUPTION, REGARDLESS OF NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NOTWITHSTANDING ANY OTHER PROVISION OF THIS EUSLA, IN NO EVENT SHALL ACSS BE LIABLE FOR DAMAGES THAT COULD REASONABLY HAVE BEEN MITIGATED BY THE OTHER PARTY, OR WHERE THE OTHER PARTY WAS CONTRIBUTORILY NEGLIGENT OR FAILED TO PERFORM ITS OBLIGATIONS HEREUNDER. IN NO EVENT SHALL ACSS BE REQUIRED TO PAY THE OTHER PARTY, EITHER DIRECTLY OR BY SETOFF, ANY PENALTY, INCLUDING LIQUIDATED DAMAGES WITHOUT A BASIS IN ACTUAL OR ANTICIPATED HARM, FOR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER. IN NO CASE SHALL THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF ACSS PURSUANT TO OR IN CONNECTION WITH THIS EUSLA EXCEED ONE HUNDRED PERCENT (100%) OF THE SOFTWARE LICENSE FEES PAID TO ACSS FOR THE SPECIFIC SOFTWARE PRODUCT REFERRED TO IN THE LIABILITY CLAIM.
12. INDEMNITY
12.1 GENERAL INDEMNITY
12.1.1 Each party to this EUSLA agrees to indemnify and hold harmless the other, its directors, officers, agents and employees from and against any and all liability, loss or damage, including reasonable costs, attorneys’ and witnesses’ fees, and expenses incurred by the indemnitee in defending the underlying claim, by reason of any loss, damage, death or injury to their employees or their property arising out of or in connection with work performed or the ACSS Software furnished pursuant to this EUSLA where such loss was foreseeably, proximately and immediately caused by the sole negligence of the indemnitor, its directors, officers, agents, and employees.
12.1.2 In the event that any demand or claim is made or suit is commenced against any of the parties hereto, the parties hereto shall give prompt written notice to the other and shall have the right to compromise such claim to the extent of its own interests and shall undertake the defense of any such suit. Each party shall maintain liability insurance sufficient to cover the foregoing indemnity.
12.2 PATENT INDEMNITY
12.2.1 ACSS agrees to hold you harmless against any direct damage awarded by a court of final jurisdiction in any suit or suits for the infringement of any patent or copyright directly as a result of the ACSS Software license or use of the ACSS Software under this EUSLA. The foregoing undertaking will not apply unless ACSS has been informed as soon as practicable by you of the charge or suit alleging such infringement and ACSS has been given the opportunity to take over the defense thereof, and further, such undertaking will not apply if:
a) The claimed infringement is settled without the consent of ACSS unless required by a final non appealable decree of a court of competent jurisdiction; or
b) The infringement results from the use of ACSS Software licensed by ACSS hereunder in combination with goods or services not provided by ACSS hereunder where such infringement would not have occurred from the use of the ACSS Software provided by ACSS alone hereunder.
12.2.2 If the ACSS Software is held to constitute an infringement and the use thereof is enjoined, or, in consideration of any claim of infringement, ACSS will, at ACSS’s sole discretion, obtain the right for you to continue the use of the ACSS Software, modify the ACSS Software to make it non-infringing or replace the ACSS Software with non-infringing software.
13. DELAYS
13.1 ACSS will not be liable for any loss or damage caused by delay in furnishing ACSS Software or any other performance under this EUSLA.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Except as provided in this EUSLA, all rights of either limited or unlimited nature, pertaining to ACSS Software and its associated documentation, data, techniques, designs, know-how, specifications, algorithms, inventions, whether patented, patentable or not, copyrights, trade secrets, processes and any other intellectual and proprietary rights therein are and shall at all times remain the exclusive valuable property of ACSS.
14.2 You agree that no title to ACSS Software, or to any copies or derivations thereof, is transferred to you hereunder.
14.3 You agree that the existence of any copyright notice in connection with ACSS Software shall not be construed as an admission or presumption that publication has occurred.
14.4 You agree to respect and not to remove or conceal any copyright, trademark, or other proprietary and confidential notices which may appear on ACSS Software and related documentation.
14.5 Nothing in this EUSLA shall restrict ACSS in any manner from using, developing, marketing, licensing, or otherwise exploiting ACSS Software or intellectual property rights ("IPR") embodied therein anywhere in the world; nor shall anything herein be construed to grant to you any rights in or to any other present or future products of ACSS, whether or not similar to the ACSS Software.
14.6 You acknowledge and agree that all information and materials, including but not limited to ACSS Software and the associated technical information, to be licensed or provided to you hereunder are owned or licensed by ACSS and are proprietary to ACSS. You shall respect such claim of proprietary rights and shall not use such information except for the purposes for which it is being licensed as set forth in this EUSLA. You recognize and agree that ACSS is the sole and rightful owner of the ACSS Software and the technical information and all IPR therein and thereto, including without limitation, patents, copyrights and trade secrets. You shall not claim any title to the ACSS Software or technical information or right to use such except pursuant to this EUSLA. You shall not at any time do or suffer to be done any act or thing which shall in any way impair or tend to impair the rights of ACSS in and to the ACSS Software or technical information.
14.7 ACSS shall retain title and copyrights to the ACSS Software and technical information that are licensed to or provided by ACSS to you hereunder. Appropriate copyright notices may be placed on the materials supplied by ACSS and may be embedded in the ACSS Software object code, and such notices shall be retained at all times by you.
14.8 Ownership and title to any modifications and/or adaptations, including but not limited to upgrades, updates and corrections of the ACSS Software, including all IPR embodied therein, shall be and at all times remain exclusively with ACSS.
15. PROTECTION OF INFORMATION AND CONFIDENTIALITY
15.1 You agree to take any and all reasonable actions deemed necessary or desirable to ensure continued confidentiality and protection of the ACSS Software and to prevent unauthorized access, disclosure, distribution, possession, alteration, reproduction, transfer, or use thereof, including but not limited to taking appropriate action with your officers, agents and employees, by agreement or otherwise, such that your officers, agents and employees are prevented from taking any action which you are prohibited from taking hereunder.
15.2 You agree to notify ACSS promptly and in writing of the existence of any circumstances surrounding any unauthorized distribution, alteration, reproduction, transfer, or use of the ACSS Software or any portions thereof.
16. LICENSE FEES
16.1 Unless otherwise indicated, license fees under this EUSLA are in United States Dollars. Applicable license fees shall be identified in the purchase order from you to ACSS.
16.2 Payments to ACSS shall be due in accordance with ACSS’s terms.
17. EXPORT COMPLIANCE
17.1 ACSS Software is subject to applicable U.S. and Canadian export laws and regulations. You will comply with all domestic and international export laws and regulations that apply to the ACSS Software. These laws include restrictions on destinations, end users and end use, including but not limited to FAR 252.204-7008 "Requirements for Contracts Involving Export Controlled Items".
18. DURATION
18.1 This EUSLA shall be effective from the date of first Use of the ACSS Software and shall remain in force for as long as you own or lease and operate the aircraft having ACSS hardware installed that uses the ACSS Software, unless and until terminated in accordance with the provisions of this EUSLA.
19. TERMINATION
19.1 This EUSLA is effective until terminated. You may terminate it at any time by destroying the ACSS Software, including all computer programs and documentation, and erasing any copies residing on computer equipment. This EUSLA will also terminate if you do not comply with its terms or conditions. Upon such termination you agree to destroy the ACSS Software, erase all copies residing on your computer equipment and provide ACSS written confirmation of such destruction, upon request.
20. SURVIVABILITY
20.1 You understand and agree that your obligations under the Sections of this EUSLA listed here below shall survive the duration and/or termination of this EUSLA regardless of the manner in which termination occurs. The surviving Sections are: 3, 4, 7, 11, 12, 14, 15, 17, 27 and 28.
21. U.S. GOVERNMENT RESTRICTED RIGHTS
21.1 The ACSS Software, including its related documentation, was developed at private expense by ACSS and has been licensed to the public. Therefore, the ACSS Software is "commercial software" or "commercial computer software documentation" under DFAR 227.7202 or FAR 12.212, as applicable. The ACSS Software is provided to the U.S. Government only with restricted rights and limited rights. Any use, modification, reproduction, release, performance, display or disclosure of the ACSS Software, including its related documentation, by the U.S. Government or any of its agencies shall be governed solely by this EUSLA.
22. FORCE MAJEURE
22.1 Neither party to this EUSLA shall be liable or deemed to be in default for any delay or failure in performance under this EUSLA or interruption of service resulting directly or indirectly from Acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, accidents, fire, explosions, earthquakes, floods, the elements, strikes, lockouts, labor disturbances, shortages of suitable parts, labor or transportation, delays caused by suppliers or other cause beyond the reasonable control of such party.
23. ASSIGNMENT
23.1 This EUSLA is for the benefit of and shall bind the parties hereto and their respective successors and assigns; provided however, that neither this EUSLA nor any benefit hereunder may be assigned, sublicensed, or otherwise transferred by you to any other person, firm or corporation without the prior written consent of ACSS. Notwithstanding the provision of Section 3 and Section 8 of this EUSLA, this EUSLA does not extend to your parent company or to any of your subsidiary or related companies.
24. ENTIRE AGREEMENT
24.1 This EUSLA constitutes the entire agreement and understanding between ACSS and you with respect to ACSS Software, and supersedes any prior discussions, representations, understandings or agreements whether oral or written between ACSS and you, unless you executed software license terms as part of a prior existing agreement with ACSS as set forth in Section 5.
25. NON-WAIVER AND INVALIDITY
25.1 The failure of either party to enforce, in any one or more instances, any of the terms and conditions of this EUSLA shall not be construed as a waiver of the future performance of any such term or condition. Waiver of any term or condition of this EUSLA shall only be deemed to have been made if expressed in writing by the party granting such waiver.
25.2 In the event that a particular provision of this EUSLA be held by a court of competent jurisdiction to be unenforceable, said provision shall be stricken from the EUSLA and shall not affect the validity of this EUSLA as a whole, or any of its other provisions.
26. DUTIES AND TAXES
26.1 You shall be responsible for any and all sales taxes, use taxes, duties, including but not limited to import and export duties, and any other taxes or similar charges levied by your governmental authorities on or in connection with the ACSS Software provided under this EUSLA, except for taxes levied by the United States taxation authority based on ACSS's income.
26.2 You further agree to defend, indemnify and hold ACSS harmless from and against the aforesaid taxes, duties and charges as a result of performance hereunder, and all reasonable legal fees, costs and expenses incurred in connection therewith.
27. GOVERNING LAW, LANGUAGE AND VENUE
27.1 This EUSLA shall be interpreted under and governed by the laws of the State of New York, U.S.A., except that New York’s choice of law rules shall not be invoked for the purposes of applying the law of another jurisdiction. The United Nations convention on contracts for the international sale of goods shall not apply to this EUSLA.
27.2 This Agreement shall have one official language: English.
28. SETTLEMENT OF DISPUTES
28.1 Amicable Resolution
28.1.1 In the event of a dispute, controversy or claim ("Dispute"), arising out or in connection with this EUSLA, including any question regarding its existence, validity or termination, the parties shall use their best endeavours to immediately resolve the Dispute amicably up to the highest level of management.
28.2 Arbitration
28.2.1 If, within a period of three (3) months, the parties fail to resolve amicably the Dispute, then such Dispute shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three (3) and the arbitration shall be held in New York, N.Y., U.S.A. The language for arbitration shall be English.
29. AMENDMENTS
29.1 This EUSLA shall not be amended except by a specific agreement in writing signed by the duly authorized representatives of the parties.
30. INDEPENDENT CONTRACTORS
30.1 Neither party hereto shall have the right to contract or in any other way to enter into commitments on behalf of or in the name of the other party and shall not by course of conduct or otherwise hold itself out to third parties as having such authority. The relationship of the parties under this EUSLA shall be that of independent contractors and this EUSLA shall not operate so as to create a partnership or joint venture of any kind between the parties to this EUSLA.
L3 AVIATION PRODUCTS END USER SOFTWARE LICENSE AGREEMENT (EUSLA)
L3 Aviation Products, Inc.
END USER SOFTWARE LICENSE AGREEMENT ("EUSLA")
NOTICE – READ BEFORE USING ANY SOFTWARE RELEASED BY L3 AVIATION PRODUCTS
1. SCOPE
1.1 This EUSLA is an agreement between L3 Aviation Products ("L3AP") and you, which sets forth the terms and conditions under which L3AP licenses the use of its software for the purpose defined hereinafter. Such terms and conditions apply to any L3AP Software in your possession, the media on which you received it and any authorized copies. Using L3AP Software and the media on which you received it, which is licensed to you and not sold to you, indicates your acceptance of these terms and conditions. You may use L3AP Software only as expressly permitted under this EUSLA. If you do not accept these EUSLA terms and conditions do not use the L3AP Software.
2. LICENSE
2.1 The license to use L3AP Software is a worldwide, revocable and non-exclusive license. Notwithstanding the provisions of Section 3 hereinafter, such license is non-transferable.
3. TRANSFER
3.1 You may not transfer the license to use L3AP Software to any third party unless you sell the aircraft equipped with L3AP hardware embedding L3AP Software. In such a case you are authorized to transfer the license to use L3AP Software, as embedded in the L3AP hardware, and any L3AP Software media, which are sold as an integral part of the sold aircraft. Such authorization is contingent upon the aircraft purchaser to accept these EUSLA terms and conditions.
4. AUTHORIZED USE
4.1 L3AP Software is licensed for the sole use authorized under this EUSLA ("Authorized Use").
5. ORDER OF PRECEDENCE
5.1 If you executed software license terms as part of a prior existing agreement with L3AP ("Agreement"), which governs the L3AP Software in your possession, the terms and conditions of the Agreement shall prevail over this EUSLA.
6. INTERPRETATIONS AND DEFINITIONS
6.1 "Authorized Use" means the loading and use on L3AP hardware equipment as duly certified by FAA and other airworthiness authorities, as applicable.
6.2 "L3AP Software" means L3AP computer software products and programs, in object code, including user manuals and other related documentation and information, and any modifications, corrections, improvements, enhancements, versions, releases, upgrades, and updates thereto as well as any copies, parts, translations, alterations, or derivations thereof or therefrom.
6.3 "Hardware" means all L3AP products or systems installed on aircraft owned or leased and operated by you. Hardware includes all spare L3AP products or systems for use on your aircraft.
6.4 "Non-Operator" means a repair station or maintenance facility or equivalent facility that provides services for the Hardware.
6.5 "Use" or "Used" means storing the L3AP Software or any portion thereof, in a machine, and/or transmitting the L3AP Software and any portion thereof into a machine for processing, and/or compiling, executing, or interpreting any machine instructions contained in the L3AP Software or any portion thereof, and/or displaying the L3AP Software or any portion thereof in connection with the processing of such machine instructions.
6.6 Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings set forth in this Section 6 of this EUSLA for all purposes hereof.
6.7 Technical and trade terms not otherwise defined herein shall have the meanings assigned to them as generally accepted in the United States aerospace industry. All monetary amounts referred to by this EUSLA are United States dollars.
6.8 The following rules of construction apply to this EUSLA:
a) the singular includes the plural and the plural includes the singular;
b) "or" is not exclusive and "include" and "including" are not limiting;
c) "hereby", "herein", "hereinafter", "here below", "hereof", "hereunder", "hereto", "herewith", "the EUSLA", "this EUSLA", or any like words refer to this End User Software License Agreement;
d) a reference to a law includes any amendment(s) or modification(s) to such law and any rules or regulations issued thereunder or any law enacted in substitution or replacement therefor;
e) a reference herein to Section, Annex, Attachment, Appendix, Table or Schedule without further reference is to be the relevant Section, Annex, Attachment, Appendix, Table or Schedule of this EUSLA, and a reference to this EUSLA includes any Section, Annex, Attachment, Appendix, Table or Schedule;
f) any right may be exercised at any time and from time to time unless specified otherwise herein;
g) all obligations are continuing obligations unless specified otherwise herein;
h) a reference to a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, jointly and severally; and
i) the headings of the Sections and portion thereof are for convenience only and shall not affect the meaning or interpretation of this EUSLA.
7. RESTRICTIONS
7.1 You may not make or have made any copies of L3AP Software, user’s manuals and other related documentation. If you need a copy for back-up purposes only, L3AP will provide you with such copy.
7.2 You may not publish the software for others to copy.
7.3 You may not distribute, rent, lease, lend or sublicense all or any portion of L3AP Software.
7.4 You may not modify or prepare derivative works of L3AP Software.
7.5 You may not transmit L3AP Software over a network, by telephone, or electronically using any means.
7.6 You may not reverse engineer, decompile or disassemble L3AP Software.
8. NON-OPERATOR
8.1 Notwithstanding provisions elsewhere in this EUSLA, Non-Operators contracted to provide services on Hardware are hereby licensed i.) the Use of L3AP Software for the sole purpose of carrying out the contracted services on Hardware and ii.) the right to transfer the L3AP Software installed in the Hardware, after the contracted services have been performed, to the owner or lessor who operates the Hardware in their aircraft.
9. LIMITED SOFTWARE WARRANTY
9.1 L3AP warrants that the L3AP Software, as first delivered by L3AP, shall conform substantially to the documentation supplied with such L3AP Software, provided that the L3AP Software is installed, implemented and operated in accordance with said documentation.
9.2 L3AP further warrants that the magnetic media on which the L3AP Software is furnished is free from defects in materials and workmanship under normal use. L3AP’s sole and exclusive liability shall be to replace any such defective media or material. L3AP shall bear all handling and shipping charges with respect to said replacement.
9.3 The limited warranty referred to in Sections 9.1 and 9.2 is valid for a period of ninety (90) calendar days from the date of installation of the L3AP Software, is extended only to you, and is not transferable.
9.4 L3AP disclaims any implied warranty of merchantability or fitness for particular purpose.
10. REMEDY
10.1 You agree that as L3AP’s sole and exclusive liability and your sole and exclusive remedy, L3AP shall provide all reasonable services to correct program or documentation errors reported by you, which L3AP’s diagnosis indicates are caused by a defect in the L3AP Software as first delivered by L3AP. For the purpose of this Agreement, a program or documentation error is one which can be recreated by L3AP at L3AP’s site using the L3AP Software with the data and input supplied by you. FAILURE TO SUPPLY L3AP, IN WRITING, WITH DATA AND INPUT NECESSARY TO RECREATE ANY PROGRAM ERROR SHALL RELIEVE L3AP OF ANY OBLIGATION RELATING TO THE ERROR. L3AP’s SOLE OBLIGATION HEREUNDER SHALL BE TO PROVIDE PROGRAM AND DOCUMENTATION CORRECTIONS.
11. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
11.1 THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. L3AP DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES.
11.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS EUSLA, IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL L3AP BE LIABLE TO THE OTHER PARTY FOR ANY CLAIM (WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY AT LAW) FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFIT, OR BUSINESS INTERRUPTION, REGARDLESS OF NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NOTWITHSTANDING ANY OTHER PROVISION OF THIS EUSLA, IN NO EVENT SHALL L3AP BE LIABLE FOR DAMAGES THAT COULD REASONABLY HAVE BEEN MITIGATED BY THE OTHER PARTY, OR WHERE THE OTHER PARTY WAS CONTRIBUTORILY NEGLIGENT OR FAILED TO PERFORM ITS OBLIGATIONS HEREUNDER. IN NO EVENT SHALL L3AP BE REQUIRED TO PAY THE OTHER PARTY, EITHER DIRECTLY OR BY SETOFF, ANY PENALTY, INCLUDING LIQUIDATED DAMAGES WITHOUT A BASIS IN ACTUAL OR ANTICIPATED HARM, FOR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER. IN NO CASE SHALL THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF L3AP PURSUANT TO OR IN CONNECTION WITH THIS EUSLA EXCEED ONE HUNDRED PERCENT (100%) OF THE SOFTWARE LICENSE FEES PAID TO L3AP FOR THE SPECIFIC SOFTWARE PRODUCT REFERRED TO IN THE LIABILITY CLAIM.
12. INDEMNITY
12.1 GENERAL INDEMNITY
12.1.1 Each party to this EUSLA agrees to indemnify and hold harmless the other, its directors, officers, agents and employees from and against any and all liability, loss or damage, including reasonable costs, attorneys’ and witnesses’ fees, and expenses incurred by the indemnitee in defending the underlying claim, by reason of any loss, damage, death or injury to their employees or their property arising out of or in connection with work performed or the L3AP Software furnished pursuant to this EUSLA where such loss was foreseeably, proximately and immediately caused by the sole negligence of the indemnitor, its directors, officers, agents, and employees.
12.1.2 In the event that any demand or claim is made or suit is commenced against any of the parties hereto, the parties hereto shall give prompt written notice to the other and shall have the right to compromise such claim to the extent of its own interests and shall undertake the defense of any such suit. Each party shall maintain liability insurance sufficient to cover the foregoing indemnity.
12.2 PATENT INDEMNITY
12.2.1 L3AP agrees to hold you harmless against any direct damage awarded by a court of final jurisdiction in any suit or suits for the infringement of any patent or copyright directly as a result of the L3AP Software license or use of the L3AP Software under this EUSLA. The foregoing undertaking will not apply unless L3AP has been informed as soon as practicable by you of the charge or suit alleging such infringement and L3AP has been given the opportunity to take over the defense thereof, and further, such undertaking will not apply if:
a) The claimed infringement is settled without the consent of L3AP unless required by a final non appealable decree of a court of competent jurisdiction; or
b) The infringement results from the use of L3AP Software licensed by L3AP hereunder in combination with goods or services not provided by L3AP hereunder where such infringement would not have occurred from the use of the L3AP Software provided by L3AP alone hereunder.
12.2.2 If the L3AP Software is held to constitute an infringement and the use thereof is enjoined, or, in consideration of any claim of infringement, L3AP will, at L3AP’s sole discretion, obtain the right for you to continue the use of the L3AP Software, modify the L3AP Software to make it non-infringing or replace the L3AP Software with non-infringing software.
13. DELAYS
13.1 L3AP will not be liable for any loss or damage caused by delay in furnishing L3AP Software or any other performance under this EUSLA.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Except as provided in this EUSLA, all rights of either limited or unlimited nature, pertaining to L3AP Software and its associated documentation, data, techniques, designs, know-how, specifications, algorithms, inventions, whether patented, patentable or not, copyrights, trade secrets, processes and any other intellectual and proprietary rights therein are and shall at all times remain the exclusive valuable property of L3AP.
14.2 You agree that no title to L3AP Software, or to any copies or derivations thereof, is transferred to you hereunder.
14.3 You agree that the existence of any copyright notice in connection with L3AP Software shall not be construed as an admission or presumption that publication has occurred.
14.4 You agree to respect and not to remove or conceal any copyright, trademark, or other proprietary and confidential notices which may appear on L3AP Software and related documentation.
14.5 Nothing in this EUSLA shall restrict L3AP in any manner from using, developing, marketing, licensing, or otherwise exploiting L3AP Software or intellectual property rights ("IPR") embodied therein anywhere in the world; nor shall anything herein be construed to grant to you any rights in or to any other present or future products of L3AP, whether or not similar to the L3AP Software.
14.6 You acknowledge and agree that all information and materials, including but not limited to L3AP Software and the associated technical information, to be licensed or provided to you hereunder are owned or licensed by L3AP and are proprietary to L3AP. You shall respect such claim of proprietary rights and shall not use such information except for the purposes for which it is being licensed as set forth in this EUSLA. You recognize and agree that L3AP is the sole and rightful owner of the L3AP Software and the technical information and all IPR therein and thereto, including without limitation, patents, copyrights and trade secrets. You shall not claim any title to the L3AP Software or technical information or right to use such except pursuant to this EUSLA. You shall not at any time do or suffer to be done any act or thing which shall in any way impair or tend to impair the rights of L3AP in and to the L3AP Software or technical information.
14.7 L3AP shall retain title and copyrights to the L3AP Software and technical information that are licensed to or provided by L3AP to you hereunder. Appropriate copyright notices may be placed on the materials supplied by L3AP and may be embedded in the L3AP Software object code, and such notices shall be retained at all times by you.
14.8 Ownership and title to any modifications and/or adaptations, including but not limited to upgrades, updates and corrections of the L3AP Software, including all IPR embodied therein, shall be and at all times remain exclusively with L3AP.
15. PROTECTION OF INFORMATION AND CONFIDENTIALITY
15.1 You agree to take any and all reasonable actions deemed necessary or desirable to ensure continued confidentiality and protection of the L3AP Software and to prevent unauthorized access, disclosure, distribution, possession, alteration, reproduction, transfer, or use thereof, including but not limited to taking appropriate action with your officers, agents and employees, by agreement or otherwise, such that your officers, agents and employees are prevented from taking any action which you are prohibited from taking hereunder.
15.2 You agree to notify L3AP promptly and in writing of the existence of any circumstances surrounding any unauthorized distribution, alteration, reproduction, transfer, or use of the L3AP Software or any portions thereof.
16. LICENSE FEES
16.1 Unless otherwise indicated, license fees under this EUSLA are in United States Dollars. Applicable license fees shall be identified in the purchase order from you to L3AP.
16.2 Payments to L3AP shall be due in accordance with L3AP’s terms.
17. EXPORT COMPLIANCE
17.1 L3AP Software is subject to applicable U.S. and Canadian export laws and regulations. You will comply with all domestic and international export laws and regulations that apply to the L3AP Software. These laws include restrictions on destinations, end users and end use, including but not limited to FAR 252.204-7008 "Requirements for Contracts Involving Export Controlled Items".
18. DURATION
18.1 This EUSLA shall be effective from the date of first Use of the L3AP Software and shall remain in force for as long as you own or lease and operate the aircraft having L3AP hardware installed that uses the L3AP Software, unless and until terminated in accordance with the provisions of this EUSLA.
19. TERMINATION
19.1 This EUSLA is effective until terminated. You may terminate it at any time by destroying the L3AP Software, including all computer programs and documentation, and erasing any copies residing on computer equipment. This EUSLA will also terminate if you do not comply with its terms or conditions. Upon such termination you agree to destroy the L3AP Software, erase all copies residing on your computer equipment and provide L3AP written confirmation of such destruction, upon request.
20. SURVIVABILITY
20.1 You understand and agree that your obligations under the Sections of this EUSLA listed here below shall survive the duration and/or termination of this EUSLA regardless of the manner in which termination occurs. The surviving Sections are: 3, 4, 7, 11, 12, 14, 15, 17, 27 and 28.
21. U.S. GOVERNMENT RESTRICTED RIGHTS
21.1 The L3AP Software, including its related documentation, was developed at private expense by L3AP and has been licensed to the public. Therefore, the L3AP Software is "commercial software" or "commercial computer software documentation" under DFAR 227.7202 or FAR 12.212, as applicable. The L3AP Software is provided to the U.S. Government only with restricted rights and limited rights. Any use, modification, reproduction, release, performance, display or disclosure of the L3AP Software, including its related documentation, by the U.S. Government or any of its agencies shall be governed solely by this EUSLA.
22. FORCE MAJEURE
22.1 Neither party to this EUSLA shall be liable or deemed to be in default for any delay or failure in performance under this EUSLA or interruption of service resulting directly or indirectly from Acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, accidents, fire, explosions, earthquakes, floods, the elements, strikes, lockouts, labor disturbances, shortages of suitable parts, labor or transportation, delays caused by suppliers or other cause beyond the reasonable control of such party.
23. ASSIGNMENT
23.1 This EUSLA is for the benefit of and shall bind the parties hereto and their respective successors and assigns; provided however, that neither this EUSLA nor any benefit hereunder may be assigned, sublicensed, or otherwise transferred by you to any other person, firm or corporation without the prior written consent of L3AP. Notwithstanding the provision of Section 3 and Section 8 of this EUSLA, this EUSLA does not extend to your parent company or to any of your subsidiary or related companies.
24. ENTIRE AGREEMENT
24.1 This EUSLA constitutes the entire agreement and understanding between L3AP and you with respect to L3AP Software, and supersedes any prior discussions, representations, understandings or agreements whether oral or written between L3AP and you, unless you executed software license terms as part of a prior existing agreement with L3AP as set forth in Section 5.
25. NON-WAIVER AND INVALIDITY
25.1 The failure of either party to enforce, in any one or more instances, any of the terms and conditions of this EUSLA shall not be construed as a waiver of the future performance of any such term or condition. Waiver of any term or condition of this EUSLA shall only be deemed to have been made if expressed in writing by the party granting such waiver.
25.2 In the event that a particular provision of this EUSLA be held by a court of competent jurisdiction to be unenforceable, said provision shall be stricken from the EUSLA and shall not affect the validity of this EUSLA as a whole, or any of its other provisions.
26. DUTIES AND TAXES
26.1 You shall be responsible for any and all sales taxes, use taxes, duties, including but not limited to import and export duties, and any other taxes or similar charges levied by your governmental authorities on or in connection with the L3AP Software provided under this EUSLA, except for taxes levied by the United States taxation authority based on L3AP's income.
26.2 You further agree to defend, indemnify and hold L3AP harmless from and against the aforesaid taxes, duties and charges as a result of performance hereunder, and all reasonable legal fees, costs and expenses incurred in connection therewith.
27. GOVERNING LAW, LANGUAGE AND VENUE
27.1 This EUSLA shall be interpreted under and governed by the laws of the State of New York, U.S.A., except that New York’s choice of law rules shall not be invoked for the purposes of applying the law of another jurisdiction. The United Nations convention on contracts for the international sale of goods shall not apply to this EUSLA.
27.2 This Agreement shall have one official language: English.
28. SETTLEMENT OF DISPUTES
28.1 Amicable Resolution
28.1.1 In the event of a dispute, controversy or claim ("Dispute"), arising out or in connection with this EUSLA, including any question regarding its existence, validity or termination, the parties shall use their best endeavours to immediately resolve the Dispute amicably up to the highest level of management.
28.2 Arbitration
28.2.1 If, within a period of three (3) months, the parties fail to resolve amicably the Dispute, then such Dispute shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three (3) and the arbitration shall be held in New York, N.Y., U.S.A. The language for arbitration shall be English.
29. AMENDMENTS
29.1 This EUSLA shall not be amended except by a specific agreement in writing signed by the duly authorized representatives of the parties.
30. INDEPENDENT CONTRACTORS
30.1 Neither party hereto shall have the right to contract or in any other way to enter into commitments on behalf of or in the name of the other party and shall not by course of conduct or otherwise hold itself out to third parties as having such authority. The relationship of the parties under this EUSLA shall be that of independent contractors and this EUSLA shall not operate so as to create a partnership or joint venture of any kind between the parties to this EUSLA.
If your visit to our web site includes the download of an ACSS TAWS Obstacle Database, then by action of the database download you are representing you have read and agree to the below terms of use:
OBSTACLE DATA IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND JEPPESEN, ACSS AND THALES DO NOT GUARANTEE AND MAKE NO REPRESENTATIONS ABOUT THE ACCURACY, CURRENCY, ADEQUACY, QUALITY OR COMPLETENESS OF THE OBSTACLE DATA. EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, JEPPESEN, ACSS AND THALES MAKE NO WARRANTY, ASSUME NO RESPONSIBILITY TO ANY PERSON OR PERSONS, AND DISCLAIM ANY LIABILITY WITH RESPECT TO THE QUALITY AND/OR INTEGRITY OF THIRD PARTY SOURCE MATERIAL OVER WHICH JEPPESEN, ACSS AND THALES HAVE NO CONTROL, BE IT GOVERNMENT SOURCE OR OTHER PUBLICLY AVAILABLE DATA INCLUDING, BUT NOT LIMITED TO, THE DESIGN, ADEQUACY, ACCURACY, RELIABILITY, SAFETY, OR CONFORMANCE WITH GOVERNMENT STANDARDS OR REGULATIONS OF SUCH THIRD PARTY SOURCE MATERIAL.
THE WARRANTIES, CONDITIONS, REPRESENTATIONS, OBLIGATIONS AND LIABILITIES OF JEPPESEN, ACSS AND THALES AND REMEDIES OF CUSTOMER SET FORTH HEREIN ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF JEPPESEN, ACSS AND THALES, AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST JEPPESEN, ACSS AND THALES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE JEPPESEN, ACSS, AND THALES, DATA AND OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER AND ANY NONCONFORMANCE OR DEFECT IN THE JEPPESEN, ACSS, AND THALES DATA OR OTHER THINGS PROVIDED, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
Customer will indemnify and hold harmless Jeppesen, ACSS and Thales from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys' fees), incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including employees of Customer but not employees of Jeppesen, ACSS, and Thales, or for loss of or damage to any property, including any aircraft, arising out of or in any way relating to Customer’s utilization and/or processing of Jeppesen, ACSS and Thales Obstacle Data, whether or not arising in tort or occasioned by the negligence of Jeppesen, ACSS, and Thales except to the extent of any obligation, liability, claim or remedy in tort due to the recklessness or willful misconduct of Jeppesen, ACSS, and Thales. Customer’s obligations under this indemnity will survive the expiration, termination, completion or cancellation of this Agreement.