LICENSE AGREEMENT
THIS LICENSE AGREEMENT
("LICENSE" OR "AGREEMENT") IS AN AGREEMENT BETWEEN YOU (EITHER AN
INDIVIDUAL OR A SINGLE ENTITY) AND THE OWNER OF THE SOFTWARE ("LICENSOR")
FOR THE USE OF EISMATE(TM) SOFTWARE ("SOFTWARE"). BY
INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE
TERMS OF THIS LICENSE, WHICH COVERS YOUR USE OF THE SOFTWARE AND RELATED
SOFTWARE COMPONENTS, WHICH MAY INCLUDE PRINTED MATERIALS AND "ONLINE" OR
ELECTRONIC DOCUMENTATION.
1. License. Subject to the terms of this Agreement and full payment of
the applicable license fees, Licensor hereby grants You a limited,
non-exclusive, non-assignable, non-sublicensable
license to install, use and copy the Software to provide
a single installation of the EISMate(TM) Software. All rights not
expressly granted to You herein are retained by Licensor.
2. Copies. Except as provided in this Section 2, a separate license is
required for each additional installation of the Software. You may make a
reasonable number of copies of the Software solely for emergency back-up,
testing or archival purposes. Further, You may load the Software onto
another computing device owned and operated by You on a "spare" basis
to be used only as follows: you may only operate or cause to be
operational one instance of the Software at any time for each
executed instance of this License.
3. Notices. (None except as specified in this License)
4. License Restrictions. You may not: (a) reproduce or distribute all or
any portion of the Software to any third party; (b) remove any
proprietary notices from the Software or any copy thereof; (c) sell,
assign, rent, transfer, distribute, act as a service bureau, or grant
rights in the Software to any other person without the prior written
consent of Licensor; (d) export or reexport the Software (e) use the
Software in violation of any applicable law, regulation or ordinance.
5. Copyright; Proprietary Rights. The Software is All Rights Reserved ©
2004 Robert Bittner and is protected by United States and international
copyright laws. Except for the limited license granted to You, Licensor
reserves all right, title and interest to the Software and all associated
documentation, as well as the EISMate(TM) logos and trademarks
(collectively, "EISMate(TM) Marks"). Title to and
ownership of the Software and EISMate(TM) Marks, including without
limitation all intellectual property rights therein and thereto, are and
shall remain the exclusive property of Licensor and its suppliers. You
shall not take any action to jeopardize, limit or interfere with
Licensor's ownership of and rights with respect to the Software and/or
EISMate(TM) Marks. You acknowledge that any unauthorized copying or use
of the Software and/or EISMate(TM) Marks is a breach of this License.
6. Installation. You are responsible for installation of the Software.
7. Updates and maintenance. You are entitled by this License to
any updates to the Software which are made generally available for
a period of one year from the date of execution of this License.
Licensor is not obligated to
provide updates, enhancements, or corrective maintenance to the
Software beyond what is otherwise generally available during the year
following execution of this License. Licensor is not
obligated to provide training, maintenance or support of any kind for the
Software.
8. Modifications to the Software. You may
not alter, modify, or reverse-engineer the Software.
9. Your Responsibilities. In addition to the other terms and conditions
set forth in this License, You are responsible for providing and
maintaining all equipment necessary to install
and properly use the Software, including, without limitation, computer
hardware and software, avionics, modems, and telephone and/or network
services.
10. Promotional Materials. You agree that Licensor may publicly reference
You by Your name and any aircraft in which Software is used. This may
include public customer references such as printed literature and public
website(s).
11. U.S. Government Restricted Rights: This Software
and documentation
are provided with RESTRICTED RIGHTS. If used or acquired by the
Government, the Government acknowledges that (a) the Software constitutes
"commercial computer software" or "commercial computer software
documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3,
as applicable, and (b) the Government's rights are limited to those
specifically granted to You, the licensee, pursuant to this Agreement.
12. Export Controls. The Software and all underlying information and
technology is subject to U.S. export controls, including the Export
Administration Regulations ("EAR", 50 C.F.R. Parts 730-774), and may be
subject to export or import regulations in other countries. You are
responsible for complying with all trade regulations and laws, both
foreign and domestic.
13. Termination. Licensor may terminate this License if You fail to
comply with the terms of this License or any applicable agreement
relating to professional or other services Licensor may provide to you.
You may terminate this License at any time by notifying in writing
Licensor, removing from or destroying all hard drives, networks, and
other storage media containing any copies of the
Software. Upon any termination, You must remove the Software from your
computer equipment and destroy all originals and copies of the Software
in your possession. The following sections shall survive for seventy
years any termination of this agreement and shall be effective in
accordance with their terms: 4, 5, 8, and 11 through 18.
14. Indemnity. You agree to indemnify, hold harmless and defend Licensor,
at your expense, against any and all third-party claims, actions,
proceedings, and suits and all related liabilities, damages, settlements,
penalties, fines, costs or expenses (including, without limitation,
reasonable attorneys' fees and other litigation expenses) incurred by
Licensor arising out of or relating to your (a) violation or breach of
any term of this License, or (b) use or misuse of the Software.
15. Refunds. You may terminate the License within thirty (30) days of
purchase to receive a refund, less processing expenses. The refund is
not transferable and will be given to the original purchaser in the
same form of payment that
was originally made. Licensor's payment of the refund constitutes
termination of the Agreement as described in Section 13.
16. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED "AS IS" AND YOU
ASSUME ALL RISK WITH ITS INSTALLATION, CONFIGURATION AND USE. THERE ARE
NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY LICENSOR, EITHER
EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING
WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY
COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FURTHER,
LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY RELATED
SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, ACCURATE, COMPLETE, OR
ERROR-FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL
PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE
CHARGED FOR THE SOFTWARE AND ANY ASSOCIATED SERVICES. SOME STATES DO NOT
ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY
TO YOU.
17. Limitation of Liability. YOU ASSUME ALL RISK ASSOCIATED WITH THE
INSTALLATION AND USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION
POTENTIAL ENGINE DAMAGE AND/OR DEATH DUE TO INCOMPLETE OR INCORRECT
DATA). IN NO EVENT SHALL LICENSOR BE LIABLE WHETHER IN CONTRACT, WARRANTY,
TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT
LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR COVER OR FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, COMPUTER
FAILURE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO
USE THE SOFTWARE OR PERFORMANCE OF ANY RELATED SERVICES, EVEN IF LICENSOR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS REQUIRED BY STATE LAW, LICENSORS'S CUMULATIVE LIABILITY TO YOU
OR ANY OTHER PARTY FOR ANY LOSS
OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF
OR RELATING TO THIS LICENSE SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO
LICENSOR FOR THE USE OF THE SOFTWARE. YOU HEREBY RELEASE LICENSOR FROM
ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS
LIMITATION.
18. General Provisions. The terms set forth in this License and any
related service agreements constitute the final, complete and exclusive
agreement with respect to the Software and may not be contradicted,
explained or supplemented by evidence of any prior agreement, any
contemporaneous oral agreement or any consistent additional terms. Should
any term or provision hereof be deemed invalid, void or unenforceable
either in its entirety or in a particular application, the remainder of
this License shall nonetheless remain in full force and effect. Any term
of this License may be amended and the observance of any term may be
waived only with the written consent of the parties. The failure of
Licensor at any time or times to require performance of any provision
hereof shall in no manner affect its right at a later time to enforce the
same unless the same is waived in writing. This License shall be governed
by and construed in accordance with the laws of the State of Minnesota
without regard to its conflict of law rules. You agree that regardless
of any statute or law to
the contrary, any claim or cause of action against Licensor must be filed
within one (1) year after such claim or cause of action arose or it will
be forever barred. The provisions of the 1980 U.N. Convention on
Contracts for the International Sale of Goods shall not apply. If You
have any questions concerning this License, please direct all
correspondence to Licensor.