Chart Viewer Software End User License Agreement

Effective August 7, 2017

PLEASE READ THIS ENTIRE LICENSE AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. THIS SOFTWARE IS LICENSED IN CONJUNCTION WITH A WRITTEN SERVICES AGREEMENT FOR THE PROVISION OF JEPPESEN CHARTING SERVICES ENTERED INTO BY AND BETWEEN JEPPESEN SANDERSON, INC. OR ONE OF ITS AFFILIATES (“JEPPESEN”) AND YOUR EMPLOYER IN WHICH YOU UNDERSTAND AND AGREE TO THOSE SEPARATE TERMS AND CONDITIONS. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS LICENSE AGREEMENT ON BEHALF OF YOUR EMPLOYER. YOU AND YOUR EMPLOYER ARE COLLECTIVELY REFERRED TO HEREINAFTER AS “LICENSEE”. THIS LICENSE AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN LICENSEE AND JEPPESEN FOR THE USE OF THE SOFTWARE. BY USING THIS SOFTWARE, LICENSEE AGREES TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT. JEPPESEN RESERVES THE RIGHT TO CHANGE OR MODIFY ANY OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AT ANY TIME. THE MOST CURRENT VERSION OF THE TERMS AND CONDITIONS CAN BE REVIEWED BY CLICKING “ABOUT” UNDER THE “HELP” MENU IN THE SOFTWARE. ANY CHANGES OR MODIFICATIONS TO THE TERMS AND CONDITIONS WILL BE EFFECTIVE ON THE DATE THE CHANGE OR MODIFICATION IS MADE. LICENSEE’S USE OF THE SOFTWARE FOLLOWING THE DATE OF ANY CHANGES OR MODIFICATIONS WILL CONSTITUTE LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS AS REVISED. IF LICENSEE DOES NOT AGREE WITH THESE TERMS PROMPTLY CONTACT JEPPESEN FOR A RETURN AUTHORIZATION FOR THE SOFTWARE.

1. OWNERSHIP. Jeppesen is the owner or authorized licensor of the Jeppesen chart viewer software (“Software”) and its associated documentation. Jeppesen and its licensors retain all rights, title and interest in the copyrights, patents, trade secrets, trademarks and other intellectual property pertaining to the Software. The Software is licensed, not sold to Licensee, and Licensee agrees not to use the Software except in the intended manner in accordance with the terms of this License Agreement.

2. LICENSED USE AND RESTRICTIONS ON USE. For each license purchased, Licensee may: (i) install the Software on one (1) computer for ground-based use only; and (ii) physically transfer the Software from one computer to another so long as the Software is not installed on more than one (1) computer at any time.  . The Software may not be used in an aircraft in any capacity, whether on the ground or airborne.

Except for as otherwise provided herein, Licensee may not: (a) copy, reproduce, or publish the Software; (b) electronically transfer the Software to multiple computers over a network system; (c) distribute copies of the Software or accompanying materials to others; (d) modify, adapt, translate, reverse engineer, or decompile the Software or create derivative works based on the Software; (e) modify, adapt, translate, or create derivative works based on the printed, electronic, or written materials; (f) assign, rent, lend, or sublease the Software; or (f) sell or transfer the Software.

3. TERMINATION. This License Agreement and Licensee’s right to use the Software will automatically terminate: (a) upon termination, cancellation and/or non-renewal of Licensee’s charting services agreement with Jeppesen and/or (b) if Licensee fails to comply with any term of this License Agreement or any applicable law.

4. ASSUMPTION OF RISK. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIS SOFTWARE IS AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH LICENSEE.

5. WARRANTY DISCLAIMER. To the maximum extent permitted by applicable law, the Software is provided “AS IS” and “AS AVAILABLE,” with all faults and without warranty of any kind. Jeppesen does not warrant that the functions contained in the Software will be accurate or meet Licensee’s requirements, that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected. No oral or written information, guidelines or advice given by Jeppesen or its authorized representative will create a warranty.

6. LIMITATION OF LIABILITIES.

A. DISCLAIMER AND RELEASE. THE CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS, LIABILITIES AND WARRANTIES (IF ANY) OF JEPPESEN AND REMEDIES OF LICENSEE SET FORTH HEREIN ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND LICENSEE HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, OBLIGATIONS AND LIABILITIES OF JEPPESEN, AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF LICENSEE AGAINST JEPPESEN, EXPRESS OR IMPLIED, ARISING BY LAW, EQUITY, OR OTHERWISE, WITH RESPECT TO THIS LICENSE AGREEMENT, THE SOFTWARE PROVIDED HEREUNDER AND ANY NONCONFORMANCE OR DEFECT IN THE DESIGN, ADEQUACY, ACCURACY, RELIABILITY, SAFETY, OR CONFORMANCE WITH GOVERNMENT STANDARDS OR REGULATIONS OF SUCH SOFTWARE, INCLUDING BUT NOT LIMITED TO:

(i)  ANY IMPLIED WARRANTY AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, QUIET ENJOYMENT, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS;

(ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

(iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN STRICT LIABILITY OR TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF JEPPESEN; AND

(iv) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF LICENSEE, INCLUDING WITHOUT LIMITATION ANY AIRCRAFT.

B. EXCLUSION OF SPECIFIED LOSSES AND DAMAGES. JEPPESEN WILL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER, (i) WHETHER ARISING IN LAW, EQUITY, CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), STRICT LIABILITY, OR OTHERWISE AND (ii) WHETHER SUCH LOSSES OR DAMAGES ARE DIRECT, INDIRECT OR OTHERWISE, FOR:

(i) LOSS OF USE, REVENUE, PROFIT, ANTICIPATED SAVINGS, BUSINESS VALUE, OPPORTUNITY OR GOODWILL;

(ii) LOSS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION;

(iii) LOSS OR DAMAGES RESULTING FROM DELAY IN PERFORMANCE AND COST OF SUBSTITUTE PROCUREMENT;

(iv) LOSS OR DAMAGES RESULTING FROM REPRODUCTION OR RECOVERY OF DATA OR INFORMATION WHICH IS LOST, CORRUPTED OR DAMAGED IN ANY OTHER MANNER, WHETHER IN WHOLE OR IN PART; OR

(v) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PURE ECONOMIC LOSSES OR DAMAGES IN ANY WAY ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT.

C. MAXIMUM LIABILITY. IN NO EVENT WILL JEPPESEN’S TOTAL LIABILITY, WHETHER IN LAW, EQUITY, CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF JEPPESEN), , STRICT LIABILITY OR OTHERWISE, IN ANY WAY ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THE SOFTWARE EXCEED THE GREATER OF (i) THE PURCHASE PRICE OF THE SOFTWARE LICENSE OR (ii) $100.00 USD.

Some states and jurisdictions do not allow limitations on direct, indirect, incidental, or consequential damages, so the above limitations or exclusions may not apply to Licensee.

For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees and agents.

If a court of competent jurisdiction determines that applicable law implies warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on Jeppesen’s liability set forth in this Section will apply to the fullest extent permitted by law. If Jeppesen cannot exclude or limit a warranty or liability implied by law, this License Agreement will be read and construed subject to such provisions of law.

7. INDEMNIFICATION. Licensee will indemnify and hold harmless Jeppesen and its licensors, contractors, subcontractors and agents 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 Licensee but not employees of Jeppesen, or for loss of or damage to any property, including without limitation any aircraft, arising out of or in any way relating to the use of or inability to use the Software provided to Licensee under this License Agreement, whether or not arising in strict liability or in tort or occasioned by the negligence of Jeppesen. Licensee’s obligations under this indemnity will survive the termination of this License Agreement.

For purposes of this Section, the term “Jeppesen” includes Jeppesen, its parent company, their respective parents, affiliates, and the assignees of each, and their respective directors, officers, employees and agents.

8. REMEDY FOR DEFECTIVE MEDIA. Jeppesen’s entire liability and Licensee’s exclusive remedy is limited to replacing the defective media if returned to Jeppesen (at Licensee’s expense) accompanied by dated proof of purchase satisfactory to Jeppesen provided Licensee has first received a Return Authorization by contacting Jeppesen in advance. This remedy will not apply if the media has been damaged by negligence, accident, improper or unreasonable use, or by any other causes, unrelated to defective material or workmanship.

9. EXPORT COMPLIANCE. Licensee is responsible for Licensee’s compliance with any applicable export control restrictions, laws and regulations as may be modified from time to time, imposed by the governments of the United States and, if applicable, other countries. Licensee will not attempt to, or knowingly export or re-export the Software covered under this License Agreement to any country or national thereof prohibited from obtaining such Software, either directly or indirectly through, affiliates, licensees or subsidiaries of Licensee.

10. ENTIRE AGREEMENT. This License Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof. No waiver or modification of any of the terms hereof will be valid unless in writing and signed by both Jeppesen and Licensee. No waiver of any breach will be deemed a waiver of any subsequent breach. If any provision of this License Agreement is held to be invalid or unenforceable, the remaining provisions will not be affected.

11. GOVERNING LAW. This License Agreement will be interpreted under and governed by the laws of the State of Colorado, USA without recourse to choice of law statutes or principles that would otherwise result in the application of the law of any other jurisdiction to this License Agreement. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this License Agreement.

12. CONFLICTING DOCUMENTS. In the event Licensee issues a purchase order for its request of the Software, the terms and conditions therewith are hereby rejected by Jeppesen and this License Agreement will govern and take precedence over such purchase order.