Aircraft Cost Calculator TM License Agreement
IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AND AIRCRAFT COST CALCULATOR, LLC ("ACC") FOR THE ACC SOFTWARE ACCOMPANYING THIS AGREEMENT, WHICH MAY INCLUDE COMPUTER SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION ("SOFTWARE"). BEFORE CONTINUING WITH THE INSTALLATION OF THE SOFTWARE, YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT THAT FOLLOWS ("AGREEMENT"). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL OR ACCESS THE ACC SOFTWARE AND SHOULD CONTACT ACC FOR A REFUND OF YOUR SUBSCRIPTION FEE.
1. GRANT OF LICENSE. ACC grants you a nonexclusive and limited license to use the Software products and functionalities for which you have paid the applicable fees solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. The Software is licensed, not sold, to you. This license does not apply to any other software program provided with the Software, including promotional software, which is governed by the online software license agreement included with that software.
"ACC" is the limited liability company from whom you are subscribing to the Software or related services.
2. INSTALLATION AND USE. You may install and use the Software only in the configuration and for the number of licenses acquired by you. ACC may control the number and the use of the Software based on your subscription.
3. LICENSE TYPES; DEFINITIONS.
3.1. Concurrent Access License ("CAL"). The Software is licensed on a Concurrent Access basis; the aggregate number of end users accessing the Software at any one time may not exceed the number of CALs you have obtained. CAL(s) are assigned to a particular User, and may not be shared among different Users. When using Concurrent Access licenses, you may not utilize a program or system to cache or queue report requests. Unless specified in writing, the number of CALs per User is limited to three.
3.2. Subscription License. The Software is licensed on a Subscription basis; you are granted a non-exclusive and non-transferable license to use the Software for a monthly, six-month or twelve-month term, renewable automatically at Licensor's then current rate or such other term as mutually agreed by the parties.
3.3. "User" means an individual natural person who accesses the Software on any device. The number of devices is limited to the CAL granted to the Subscriber under this Agreement.
3.4. "Subscriber" is the person or entity paying the Subscription Fee to ACC for use of the Software.
4. PRODUCT SPECIFIC USE RIGHTS. Additional terms relating to your use of the Software may be found at www.aircraftcostcalculator.com, which are incorporated herein by this reference. You acknowledge and agree that these additional terms form an integral part of this Agreement.
5. OWNERSHIP. ACC and/or its suppliers retain 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, ACC or any third party) in confidence and prevent them from unauthorized disclosure or use except with ACC's prior written consent. ACC and/or its suppliers reserve all rights not expressly granted to you. ACC's suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein.
6. COPYRIGHT. The Software is copyrighted by ACC and/or its suppliers and is protected by United States copyright and patent laws and international treaty provisions. You may not copy the Software for any purpose.
7. RESTRICTIONS. Except as expressly permitted by this License Agreement or by applicable law you may not: (a) lease, loan, resell, assign, sublicense, or otherwise distribute the Software or any of the rights granted by this License Agreement without the express written permission of ACC; (b) use the Software to provide or operate Application Service Provider (ASP), service bureau, marketing, third party training, outsourcing services, or consulting services, or any other commercial service related to the Software such as develop training materials; (c) modify (even for purposes of error correction), adapt, or translate the Software or create derivative works therefrom except as necessary to configure the Software using the 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 a product which is competitive with any ACC product offerings; (f) use the Software to develop a product 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 ACC; and (g) permit third party access to, or use of the Software except as expressly permitted herein.
8. LIMITED WARRANTY AND REMEDY.
(a) Excluding Third Party Products, ACC warrants to you that: (i) for your Subscription period, the Software will substantially conform to the functional description set forth in its standard documentation. ACC does not warrant that use of the Software will operate uninterrupted or error free. The Aircraft Database used to provide the reports from the Software is based on information 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 ACC for accuracy, completeness or timeliness. Use of Aircraft Database is at Subscriber's own risk, and ACC 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 ACC'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 for the Software and termination of this License Agreement. Such remedy shall be provided to you by ACC only if you give ACC written notice of any breach of the above-stated limited warranty, during your Subscription period.
(c) EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS SECTION 8, ACC AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR (IV) AGAINST HIDDEN DEFECTS. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. YOU ACKNOWLEDGE THAT IN ENTERING INTO THIS AGREEMENT, YOU HAVE RELIED UPON YOUR OWN EXPERIENCE, SKILL AND JUDGMENT TO EVALUATE THE SOFTWARE AND THAT YOU HAVE SATISFIED YOURSELF AS TO THE SUITABILITY OF THE SOFTWARE TO MEET YOUR REQUIREMENTS.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ACCOR ITS DISTRIBUTORS, SUPPLIERS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUES, LOSS OR INACCURACY OF ANY DATA, OR COST OF SUBSTITUTE GOODS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF ACCHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCAND ITS SUPPLIERS' AGGREGATE LIABILITY TO YOU FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE SUBSCRIPTION FEES PAID BY YOU FOR THE SOFTWARE OR THE FEES PAID BY YOU FOR THE SERVICE DIRECTLY CAUSING THE DAMAGES. ACC WILL NOT BE LIABLE FOR DAMAGES FROM THIRD PARTY PRODUCTS. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES INCLUDED IN THIS SECTION, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU ONLY IN SUCH CIRCUMSTANCES.
10. SUPPORT SERVICES. ACC will provide to you product support services for the Software in accordance with ACC's then current Support Services policies. Notwithstanding the foregoing, ACC does not provide support services for Third Party Products.
11. TERMINATION. The Software is licensed on a subscription basis and unless the term of the subscription is renewed on or prior to the expiration of the then current term of the Subscription License, the applicable Subscription License shall terminate. Notwithstanding the foregoing, ACC may immediately terminate this Agreement and any licenses and services provided hereunder if: (i) ACC notifies you in writing of a breach and such breach is not cured within thirty (30) days; 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 ACC of this Agreement or any part thereof, ACC 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(c), 9, 11, 13, 15, and 17.
12. AUDIT. During the term of this Agreement ACC may audit, upon reasonable notice to you and at ACC's expense, your books and records to determine your compliance with this Agreement. In the event any such audit reveals that you have underpaid ACC by an amount greater than five percent (5%) of the amounts due ACC in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as ACC may have, you shall pay or reimburse to ACC the cost of the audit.
13. GENERAL. Except as otherwise preempted by United States federal law, this Agreement is governed by the laws of the State of New York, 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. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement. This Agreement constitutes the entire agreement between you and ACC, 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: AIRCRAFT COST CALCULATOR, LLC. Attn: Legal Department, 120 West Harvest Drive, Lincoln, Nebraska 68521, USA.
14. 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, AIRCRAFT COST CALCULATOR, LLC, 120 West Harvest Drive, Lincoln, Nebraska 68521, USA.
15. 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 am not under the control of, the government of Cuba, 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 or biological weapons of mass destruction.
Aircraft Cost Calculator, LLC 2018